Practice Relating to Rule 159. Amnesty

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 related to the armed conflict, whether they are interned or detained. 

In each Central American country, except those where the International Verification and Follow-up Commission determines this to be unnecessary, amnesty decrees shall be issued which establish all necessary provisions guaranteeing the inviolability of life, freedom in all its forms, property and security of person of those to whom such decrees are applicable. Simultaneously with the issue of amnesty decrees, the irregular forces of the countries in question shall release anyone that they are holding prisoner. 

Any returning refugee or displaced person charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty. In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty. 

Cease-fire shall be declared immediately after the signature of this agreement, provided that its coming into effect should not exceed the 20th January 1977. A Joint Committee shall be composed of the two parties with the help of the Organization of the Islamic Conference represented by the Quadripartite Ministerial Commission to supervise the implementation of the cease-fire.

The said Joint Committee shall also be charged with supervising the following:

All prisoners not accused of, or sentenced for, grave breaches of International Humanitarian Law as defined in Art. 50 of the First, Art. 51 of the Second, Art. 130 of the Third and Art. 147 of the Fourth Geneva Convention, as well as in Art. 85 of Additional Protocol I, will be unilaterally and unconditionally released. 

The Parties … agree that … there shall be a general amnesty granted to all persons and parties involved in the Liberian civil conflict in the course of actual military engagements. Accordingly, acts committed by the Parties or by their forces while in actual combat or on the authority of any of the Parties in the course of actual combat are hereby granted amnesty. 

1. The general and unconditional amnesty shall cover the period from 16 May 1983 to … 1997 to all (SSDF) forces, to the effect that nobody shall be prosecuted or punished for acts or omissions committed during this period.

2. No action or other legal proceedings whatsoever, civil or criminal, shall be instituted against any persons in any court of law or any place for, or on account of, any act, omission or matter done inside or outside Sudan as from … if such act or omission or matter was committed by any member of (the SSDF).  

During the transition period the President and the Commission on National Reconciliation will exercise the following functions and powers: … adoption of a Reciprocal Pardon Act and drafting of an Amnesty Act to be adopted by Parliament and the Commission on National Reconciliation. 

The Government of the Republic of Tajikistan assumes the obligation … not to institute criminal proceedings against returning refugees or displaced persons for their participation in the political confrontation and the civil war, in accordance with the legislative acts in force in the Republic. 

The President and the Commission on National Reconciliation shall adopt the reciprocal-pardon act as the first political decision to be taken during the initial days of the Commission’s work. No later than one month after the adoption of the reciprocal-pardon act, the amnesty act shall be adopted. 

1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon.

2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement.

3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality. 

We, the elements and entities of the Inter-Congolese Dialogue, Parties to this Agreement: the Government of the Democratic Republic of the Congo, the Congolese Rally for Democracy (RCD), the Movement for the Liberation of the Congo (MLC), the political opposition, civil society, the Congolese Rally for Democracy/Liberation Movement (RCD/ML), the Congolese Rally for Democracy/National (RCD/N), the Mai-Mai;

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Conclude the present Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo, by agreeing as follows:

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8. To achieve national reconciliation, amnesty shall be granted for acts of war, political offences and opinion offences, with the exception of war crimes, crimes of genocide and crimes against humanity. To this effect, the transitional national assembly shall adopt an amnesty law in accordance with universal principles and international law. On a provisional basis, and until the amnesty law is adopted and promulgated, amnesty shall be promulgated by presidential decree-law. The principle of amnesty shall be established in the constitution of the transition. 

1) At the invitation of the President of the French Republic, a Round Table of the Ivorian political forces met in Linas-Marcoussis from 15 to 23 January 2003. It brought together the following parties FPI, MFA, MJP, MPCI, MPIGO, PDCI-RDA, PIT, RDR, UDCY, UDPCI … The delegations have shown high-mindedness to allow the Round Table to bring the positions closer together and to arrive at the following consensus, all elements of which – principles and annexes – have equal value:

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3) The Round Table reaffirms the need to preserve the territorial integrity of Côte d’Ivoire, respect for its institutions and to restore the authority of the State … It therefore agrees on the following provisions:

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5. The government of national reconciliation shall take the necessary measures for the release and amnesty of all military detained for attack on the security of the State and shall have soldiers in exile benefit from the same measure. The amnesty law shall in no case exonerate the authors of grave economic offences and of grave violations of human rights or international humanitarian law. 

At the invitation of His Excellency Mister Blaise Compaoré, President of Burkina Faso, in his capacity as incumbent Chairman of the Authority of Heads of State and Government of the Economic Community of West African States (ECOWAS), acting upon the latter’s express mandate, two delegations of the Republic of Côte d’Ivoire, one representing the President of the Republic and the other the Forces Nouvelles, met in Ouagadougou from 5 February to 3 March 2007 …

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After identifying the problems encountered in the implementation of the Linas-Marcoussis, Accra and Pretoria Agreements, as well as of the UN resolutions on Côte d’Ivoire, the Parties, with a view to taking decisions, reaffirmed:

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In order to facilitate the implementation of the Agreements and the resolutions addressed above, notably resolution 1721 (2006), the Parties have taken the following decisions:

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In order to facilitate pardon and national reconciliation and to restore social cohesion and solidarity among the Ivorians, the two Parties of the Direct Dialogue agree to extend the scope of the amnesty law adopted in 2003. To this effect, they have decided to adopt, by way of an ordinance, a new amnesty law covering the crimes and offences relating to attacks on the security of the State linked to the disturbances which have shaken Côte d’Ivoire and were committed between 17 September 2000 and the date of entry into force of the present Agreement, with the exception of economic crimes, war crimes and crimes against humanity. 

At the end of hostilities, and in order to facilitate a return to peaceful conditions, the authorities in power are to endeavour to grant the broadest possible amnesty to those who have participated in the conflict or been deprived of their liberty for reasons related thereto, whether they are interned or detained. 

At the end of hostilities, and in order to facilitate a return to peaceful conditions, the authorities in power are to endeavour to grant the broadest possible amnesty to those who have participated in the conflict, or been deprived of their liberty for reasons related thereto, whether they are interned or detained. 

A noteworthy provision of AP II [1977 Additional Protocol II] relates to the widest possible amnesty at the end of hostilities for those who participated in the [non-international] armed conflict or who were deprived of their freedom for reasons relating to the armed conflict. The rationale behind this requirement is that peaceful conditions must be restored, and it is desirable to draw a line under the conflict. It must be possible to live together again and build a healthy and stable society. Reconciliation among the participants concerned is very important. Hence an amnesty is granted. A general amnesty may likewise promote this process of reconstruction and prevent the growth of retaliation sentiments. 

In order to facilitate a return to peaceful conditions, the authorities in power at the end of the hostilities are to endeavour to grant the broadest possible amnesty to those who have participated in the conflict or been deprived of their liberty for reasons related to it, whether they were interned or detained …

This terminology is used to apply to whichever Party is in power at the end of the conflict, whether it be the former government or its opponents …

This would seem to include persons tried for treason, but not those sentenced for common crimes, including assassination. 

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An ongoing obligation exists on States to prosecute human rights violations.

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Amnesty is usually granted for less serious conflict related crimes. 

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The difference in approach between International Human Rights Law and the LOAC could be indicated by the following:

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There is an ongoing obligation to prosecute human rights violations.

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There is a tendency to grant amnesty to violators for less serious conflict related crimes. 

Having regard to the duty of belligerents to try those who have committed grave breaches of the 1949 [Geneva] Conventions, it may now be open to doubt whether a treaty of peace would operate, as was often the case in the past, as an amnesty. It is, on the other hand, open to two or more belligerents to agree in a peace treaty, or even in a general armistice, that no further war crimes trials will be instituted by them after a certain agreed date or as from the date of the treaty of the armistice. 

At the end of hostilities, the authorities in power, whoever they might be, “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 related to the armed conflict, whether they are interned or detained”. 

As [on the one hand,] the Jehad, the resistance and the just fighting of the people to defend … the religion and the country are … … [the object of our] pride, and on the other hand, [it is necessary to implement] the National Compromise Policy, [to] end … the war and bloodshed, to consolidate national unity and [to create] trust [within the entire] nation, … the following articles are approved:

Article 1.

This law is enacted in order to consolidate the [national] compromise and stability, [thus] ensuring [the] high[est] public interests of the country, [the end] of enmities and [the] creation of confidence [between] all warring sides based on their safety and [provided that they obey the] constitution and enforced laws of the country.

Article 2.

For the promotion of … peace and stability and [the end] of the war, the National Assembly invites all … armed groups of the opposition [against the] Islamic Republic of Afghanistan to join in the process of consolidation of the [national] stability and compromise of Afghanistan and [to] take part in the strengthening of the system and reconstruction of the country.

Article 3.

[In order to promote the] compromise among different [elements] of society, the consolidation of peace and stability and [the beginning of a new stage] in the political contemporary era of Afghanistan, all political and enemy sides which [were] … involved in hostilities with one another before the creation of the interim administration are covered by the programme of National Compromise and Amnesty, … [benefit] from all their legal rights and are not prosecuted.

(2) The persons and groups who are still [part of] the armed opposition [against the] Islamic Republic of Afghanistan and [who], after [the enactment of this law], withdraw from opposition, … join … the National Compromise and respect the constitution and other enforced laws of [the] Islamic Republic of Afghanistan … [shall benefit] from the provisions of this resolution.

(3) The provisions included [in] items (1) and (2) of this article [are without prejudice to] the penal and individual rights of one person against another for individual crimes.

Article 4.

[The] persons who are being prosecuted for [the commission of] crimes against [the] internal and external security of the country cannot benefit from the provisions of this law.

[The] persons [who have been convicted] by courts of having committed crimes against [the] internal and external security of the country, based on the proposal of the Peace Consolidation Commission and [provided that] these persons do not to [resume] the activities against [the] Islamic Republic of Afghanistan [and if this is] guarantee[d] … , [depending on] … their status, their conviction [may be] mitigated or [they may be] absolved by separate decrees. 

who has not committed or participated in the commission of one of the offences set forth in Article 87 bis of the Penal Code [i.e. acts qualifying as “terrorist or subversive”], leading to death or permanent disability, rape, or who has not used explosives in public places or places frequented by the public and who, within six months of the date of promulgation of this law, has advised the competent authorities that he will stop any terrorist or subversive activity and has given himself up to the competent authorities. 

Amnesty is granted to all persons who committed, until 22 December 1995 [14 December 1995 in the original version before the amendment], criminal offences against the basic principles of the social system and security of Bosnia and Herzegovina … criminal offences against the armed forces … illegal possession of weapons and explosive material … as well as the criminal offence of failing to respond to a call and avoiding the military service by incapacitation or deceit and deliberate withdrawal or escape from the armed forces … if this Law or other related provisions applied in the territory of the Federation foresees penal sanctions against the persons who commit these criminal acts. 

Exemption from criminal prosecution or full exemption from pronounced sentence or part of the sentence that has not been served (hereinafter: the amnesty) are granted to all persons who committed, in the period between 1 January 1991 and 22 December 1995, any criminal act stipulated in appropriate criminal laws that were applied in the territory of the Federation of Bosnia and Herzegovina (hereinafter: the Federation), except for criminal acts against humanity and international law as stipulated in Section XVI of the [Criminal Code] of the SFRY [Socialist Federal Republic of Yugoslavia] that has been taken over, and following criminal acts: murder … rape … criminal acts against a person’s dignity and moral … as well as serious cases of robbery … if this Law or other related provisions applied in the territory of the Federation foresees penal sanctions against the persons who commit these criminal acts. 

Exemption from criminal prosecution or partial or full exemption from pronounced sentence or a part of the sentence that has not been served (hereinafter: the amnesty) are granted to all persons who committed, in the period between 1 January 1991 and 14 December 1995, any criminal act against basic principles of the social system of the Republika Srpska as stipulated in Section XV, and criminal acts against the armed forces of Republika Srpska as stipulated in the Criminal law of Republika Srpska, as well as the following acts: … illegal possession of weapons and explosive material. 

Art.1: Amnestied are, in the entire national territory, all offences being prosecuted by national jurisdictions and committed by:

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Art.3: The Amnesty results in the remission of all principal, accessory and complementary sentences as well as all other incapacities or forfeitures. 

Art.5: If a subsequent offence is committed, (irrespective of the offence) the effects of the present Law will be automatically wiped out in relation to the persons concerned.

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Art.6: … the beneficiaries of this Amnesty Law, directly or indirectly implicated in sponsoring the spread of violence and military actions by rebel groups, are under the obligation to put an end to violence, order an immediate and unconditional cease-fire, order the restitution of all arms and weaponry by combatants, and order them to submit to mechanisms of confinement, disarmament and reorientation within sixty (60) days starting from the date of the promulgation [of this law]. [If they do not do so, beneficiaries will incur the possible annulment of this law.]

Art.7: Excluded from the benefits of this Amnesty Law are:

A general amnesty is granted to the military and civilian members of the following organizations signatories of peace agreements:

all persons who have been the authors, accomplices, or accessories of unlawful deeds during the period in which the state of siege was in force, between 11 September 1973 and 10 March 1978, unless they are currently being tried or have been sentenced and to those persons who as of the date that this decree-law took effect have been sentenced by military tribunals since 11 September 1973. 

The National Government can grant, in every particular case, the benefits of a pardon or an amnesty [to Colombian nationals] for offences or acts which constitute crimes of rebellion, sedition, putsch, conspiracy and related acts, committed before the promulgation of the [Constitution], when, in its opinion, the guerrilla group of which the person asking for [the pardon or amnesty] is a member has demonstrated its intention to reintegrate into civil life.

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The benefits provided for in this decree can neither be granted with respect to atrocities nor with respect to murder committed outside a situation of combat or in taking advantage of the defenselessness of the victim. 

The present amnesty law is adopted in the spirit of the peace agreements agreed in the context of the crisis arisen since 19 September 2002.

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, especially those provided for and punished by articles 158 to 168 of the penal code, committed by Ivorian nationals located on the national territory or in exile during the events cited in article 3. Equally amnestied are the offences committed during the attempted coup d’état of 18 and 19 September 2002 and the armed rebellion which resulted from it, as well as the military offences linked to all the events cited, which are insubordination, dereliction of duty and desertion. Also amnestied are the collateral effects of the operations of defence of the republican institutions carried out by the defence and security forces.

Covered by the amnesty are the offences committed during the events: of 17 and 18 September 2000 (Attack against the authority of the State), of 24, 25, 26 and 27 October 2000 (Attack against the security of the State and public order), of 4 and 5 December 2000 (Disruption of public order), of 7 and 8 January 2001 (Attack against the authority of the State and participation in an armed group), of 10 February 2001 (Attack against the authority of the State and illegal possession of weapons, organization of an armed group), of 18 and 19 September 2002 (Attack against the authority of the State, murder, participation in an armed group).

The present amnesty law does not apply to:

The amnesty closes public action, removes all convictions pronounced and ends all principal or complementary penalties …

No criminal prosecution can be initiated with regard to the acts covered by the amnesty discovered or revealed after the promulgation of the present law, after a period of two months, except in the case of continued offences.

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Persons detained in the context of these procedures are released in conformity with the applicable rules. Persons convicted but not detained cannot be subjected to the execution of the convictions. Prosecutions related to acts amnestied by the present law which have not yet been carried out can no longer be carried out. 

Considering Law no. 2003-309 on amnesty;

Considering the Ouagadougou Political Agreement of 4 March 2007;

Considering the urgency;

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:

The amnesty closes public action, removes all convictions pronounced and ends all principal or complementary penalties with the exception of security measures.

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No criminal prosecution can be initiated with regard to the acts covered by the amnesty discovered or revealed after the signing of the present ordinance.

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Persons detained in the context of these procedures are released in conformity with the applicable rules.

Persons convicted but not detained cannot be subjected to the execution of the convictions.

Prosecutions related to acts amnestied by the present law which have not yet been carried out can no longer be carried out.

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The present ordinance takes effect at the date of its signature.

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. 

The Plenum of the Intercongolese Dialogue has adopted,

The President of the Republic promulgates the Constitution of the Transition with the following content:

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At its first session, the National Assembly of the transition shall adopt, in accordance with universal principles and international law, a law on amnesty for acts of war, political offences and offences of opinion, with the exception of war crimes, crimes of genocide and crimes against humanity.

On a provisional basis and while awaiting the adoption and promulgation of the amnesty law, the amnesty shall be promulgated by a presidential decree-law. 

Considering the Constitution of the Transition, especially articles 65, 118 and 199;

Considering the Global and Inclusive Agreement on the Transition in the Democratic Republic of the Congo, signed on 17 November 2002 and adopted by the Plenum of the Intercongolese Dialogue on 1 April 2003, especially point III, principles of the Transition, point 8;

Considering the urgency and necessity to realize national reconciliation, one of the major objectives of the Transition;

Awaiting the adoption of the amnesty law by the National Assembly and its promulgation, amnestied are, on a provisional basis, the acts of war, political offences and offences of opinion committed during the period of 2 August 1998 to 4 April 2003, with the exception of war crimes, crimes of genocide and crimes against humanity. 

It is in the implementation of such recommendation that the government introduces the present law.

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An amnesty is granted to all Congolese, whether residing at the territory of the Democratic Republic of the Congo or abroad, for acts of war and insurrection committed in the provinces of North and South Kivu.

For the purpose of this law, it is understood:

The present amnesty law does not apply to the crime of genocide, war crimes and crimes against humanity

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This amnesty covers acts committed during the period from June 2003 to the date of promulgation of the present law.  [emphasis in original]

Absolute amnesty is granted ipso jure to all persons, whether nationals or foreigners, who have acted as the immediate or proximate perpetrators of or accomplices to political crimes or related ordinary crimes or ordinary crimes committed prior to 22 October 1987 in which no fewer than 20 persons were involved.

This shall apply to those who have taken up arms if they approach the civilian or military authorities and state their wish to renounce violence and receive amnesty within 15 days of the date this law enters into force. 

The release from penal responsibility … does neither apply to crimes of genocide, torture and forced disappearance nor to the crimes which are not subject to limitations or which, in conformity with internal law or international treaties ratified by Guatemala, do not allow the release from penal responsibility. 

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Considering that the civil conflict was generally characterized by … violation of international humanitarian laws and standards.

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Section 26. The TRC [Truth and Reconciliation Commission] shall enjoy and exercise such functions and powers as are relevant for the realization of its mandates. Its functions and powers shall include, but not be limited to:

Amnesty is hereby granted in favor of those who have applied for amnesty under Executive Order No. 350, and whose applications had already been processed and are ready for final action as of date hereof, and whosoever may want to apply for amnesty under Executive Order No. 350 from the date of this Proclamation up to December 31, 1992, who have committed any act covered under Section 2 of Executive Order No. 350, series of 1989. 

Amnesty is hereby granted to all persons who shall apply therefor and who have or may have committed crimes, on or before thirty (30) days following the publication of this Proclamation in two (2) newspapers of general circulation, in pursuit of political beliefs, whether punishable under the Revised Penal Code or special laws, including but not limited to the following: rebellion or insurrection; coup d’etat; conspiracy and proposal to commit rebellion, insurrection or coup d’etat; disloyalty of public officers or employees; inciting to rebellion or insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal assembly; illegal association; direct assault; indirect assault; resistance and disobedience to a person in authority or the agents of such person; tumults and other disturbances of public order; unlawful use of means of publication and unlawful utterances; alarms and scandals; illegal possession of firearms, ammunition or explosives, committed in furtherance of, incident to, or in connection with the crimes of rebellion or insurrection; and violations of Articles 59 (desertion), 62 (absence without leave), 67 (mutiny or sedition), 68 (failure to suppress mutiny or sedition), 94 (various crimes), 96 (conduct unbecoming an officer and a gentlemen), and 97 (general article) of the Articles of War; Provided, that the amnesty shall not cover crimes against chastity and other crimes committed for personal ends.  [emphasis in original]

Amnesty is hereby granted to all personnel of the AFP [Armed Forces of the Philippines] and the PNP [Philippine National Police] who shall apply therefor and who have or may have committed, as of the date of this Proclamation, acts or omissions punishable under the Revised Penal Code, the Articles of War or other special laws, in furtherance of, incident to, or in connection with counter-insurgency operations; Provided, that such acts or omissions do not constitute acts of torture, arson, massacre, rape, other crimes against chastity, or robbery of any form; and Provided, that the acts were not committed for personal ends.  [emphasis in original]

Whereas, the judicious grant of amnesty, as an instrument of reconciliation, to members and supporters of the MILF [Moro Islamic Liberation Front] will facilitate their return to a peaceful, democratic and pluralistic society so essential to the attainment of peace and prosperity;

Now, Therefore, I, Joseph Ejercito Estrada, President of the Republic of the Philippines, by virtue of the powers vested in me by Section 19, Article VI of the Constitution, do hereby declare and proclaim:

Section 1. Grant of Amnesty. – Amnesty is hereby granted to members and supporters of the MILF who have committed crimes on or before issuance of this Proclamation in pursuit of their political beliefs; Provided, that the amnesty granted under this Proclamation shall not cover kidnapping for ransom, massacre or torture of civilian non-combatants, rape, crimes against chastity and other crimes for personal ends; Provided further, that those who have already been granted amnesty under Proclamation Nos. 347, 724 and 21 can no longer qualify for amnesty under this Proclamation. 

Whereas, a Peace Agreement was signed and executed on 06 December 2000 between the Government of the Republic of the Philippines (GRP) and the Rebolusyonaryong Partido ng Manggagawa sa Pilipinas/Revolutionary Proletarian Army/A Boncayao Brigade (RPM-P/RPA/ABB) on the basis of their mutual interest to pursue a peaceful settlement of the present armed conflict and hasten the progress and development of the country to equally enjoy the fruits thereof by all citizens of the Republic of the Philippines.

Whereas, the Peace Agreement provides for the release of political prisoners and for the dismissal of charges filed against RPM-P/RPA/ABB officers and members currently under prosecution and for them to reintegrate and join the civil society. 

Whereas, accepting rebels back into the folds of the law through amnesty, and eventually providing them access to the government’s existing socio-economic services, are essential to attaining peace and reconciliation in the country;

Whereas, an amnesty program is an integral component of the Government’s comprehensive peace efforts as mandated in Executive Order No. 3 dated 28 February 2001;

Whereas, the granting of amnesty is part of the Social Integration Program for former rebels as provided under Administrative Order No. 172 dated 23 March 2007;

Whereas, there is an urgent need and expressed desire to extend amnesty to members of the CPP-NPA-NDF [Communist Party of the Philippines-New People’s Army-National Democratic Front] and other communist rebel groups as an instrument of reconciliation, and as a path for their return to a peaceful, democratic, and pluralistic society;

Now, therefore, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and the laws of the land do hereby declare and proclaim:

Section 1. Grant of Amnesty. Amnesty shall be granted to members of the CPP-NPA-NDF and other communist rebel groups who shall apply under this Proclamation.

Section 2. Coverage. Amnesty shall cover the crime of rebellion and all other crimes included therein or incident thereto to pursuit of political beliefs as defined by jurisprudence, whether punishable under the Revised Penal Code or special laws.

Provided, that the amnesty granted under this Proclamation shall not cover the crimes against chastity, rape, torture, kidnapping for ransom, use and trafficking of illegal drugs and other crimes for personal ends and violations of international law or convention and protocols, even if alleged to have been committed in pursuit of political beliefs.

Section 3. Who may file for amnesty. Any member of the CPP-NPA-NDF and other communist rebel groups who has committed any act or omission in pursuit of political belief, referred to in Section 2, including those detained, charged or convicted for such acts or omission, may file an application for amnesty.

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Section 4. Effects of Amnesty. The grant of amnesty shall have the following effects:

Extinction of Criminal Liability. Amnesty under this Proclamation shall extinguish any criminal liability for acts committed in pursuit of political beliefs, without prejudice to the grantee’s civil liability for injuries or damages caused to private persons.

Restoration of Civil or Political Rights. The grant of amnesty shall restore the grantee’s civil and political rights lost or suspended by virtue of conviction for crime/s covered thereby. 

The provisions of acts and decrees issued before 7 December 1989 providing for amnesty or abolition shall not apply to perpetrators of war crimes, crimes against humanity or communist crimes. 

Amnestied by law are all criminal offences … [committed] between 1 August 1987 and 1 June 1991 in Senegal or abroad in relation to the events referred to as “of Casamance”.

Amnestied by law are the crimes of attacking and plotting to destabilize the security of the Senegalese State and the integrity of the national territory, prohibited and punished by Articles 72 and 73 of the Penal Code, committed prior to 31 July 1987 and in relation to events referred to as “of Casamance” and whose perpetrators have been punished with a penalty of or above 15 years’ imprisonment. 

facilitate and promote the granting of amnesty in respect of acts associated with political objectives, by receiving from persons desiring to make a full disclosure of all the relevant facts, applications for the granting of amnesty in respect of such acts, and transmitting such applications to the Committee on Amnesty for its decision, and by publishing decisions granting amnesty, in the Gazette. 

(1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26th day of January, 1986 engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by –

(2) A person referred to under subsection (1) shall not be prosecuted or subjected to any form of punishment for the participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion. 

WHEREAS: I) Article 1º of Law No. 15.848 of 22 December 1986 on the Expiry of the Punitive Claims of the State [1986 Amnesty Law] states: “It is recognized that, following the logic of the events triggered by the agreement between the political parties and the Armed Forces in August 1984, and in order to complete the transition toward the full enforcement of the constitutional order, the punitive powers of the State regarding the offences committed up to 1 March 1985 by police and military personnel, equivalents and assimilated [personnel], for political motives or while fulfilling their duties and as a result of orders set by the commanders who operated during the de facto period, have expired”;

II) Article 3º of the same Law states: “For the purposes provided in the previous articles, the Judge hearing the complaints shall ask the Executive Power to be informed, within the peremptory term of thirty days from when the communication was received, of whether the act under investigation falls under Article 1º of the present Law. If the Executive Power replies in the affirmative, the Judge shall order the closing of the proceeding. If, on the contrary, no reply is received or the Executive Power replies in the negative, the Judge shall order the continuation of the investigation. … ”;

CONSIDERING: I) that the decision of the Inter-American Court of Human Rights in the case Gelman v. Uruguay of 24 February 2011 provides, in paragraph 11, that: “The State must guarantee that the Expiry Law, for lacking effects due to its incompatibility with the American Convention [of Human Rights] and the Inter-American Convention on the Forced Disappearance of Persons, as far as it can prevent or hinder the investigation and possible sanction of those responsible for serious human rights violations, will never again be an impediment to the investigation of the facts and for the identification, and w[h]ere applicable, punishment of those responsible, in conformity with paragraphs 253 and 254 of the Judgment.”;

II) that paragraph 254 states: “Consequently, the State should ensure that no other analogous norm, such as a statute of limitations, non-retroactivity of the criminal law, res judicata, ne bis in idem or any other similar law exonerating responsibility, be applied and that the authorities refrain from carrying out acts that would implicate the obstruction of the investigative process”;

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V) that paragraph 244 of the abovementioned decision states: “The Inter-American Court concludes that the State violated the rights to fair trial and judicial protection provided for in Articles 8(1) and 25(1) of the American Convention, in relation to Articles 1(1) and 2 thereof, and of the mentioned norms of the Inter-American Convention on Forced Disappearance of Persons …” and paragraph 246 states: “Due to the interpretation and application that has been given to the Expiry Law, which lacks legal effect in regard to human rights violations in the terms indicated above … the State has not fulfilled its obligation to adapt its domestic legislation to the Convention, contained in Article 2 thereof, in relation to Articles 8(1), 25, and 1(1) thereof and Articles I(b), III, IV, and V of the Inter-American Convention on Forced Disappearance of Persons.”;

VI) that Uruguay has, in addition, ratified the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 24 October 1986, and the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity on 21 September 2001;

VII) that according to the foregoing, Uruguay’s international responsibility has been recognized by the abovementioned decision of the Inter-American Court of Human Rights, and therefore Uruguay is obliged to give effect to that decision;

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IX) that the Court additionally held that illegal acts do not create subjective rights nor legitimate interests protected by Law, and that when the revocation is grounded on reasons of legitimacy, its effects are projected in the past;

ON THE BASIS of the foregoing;

Acting in the Council of Ministries

1º. – For reasons of legitimacy, all administrative acts and communications issued in accordance with Article 3 of Law 15.848 of 22 December 1986 by the Executive Power declaring that the reported facts fell under the provision of Article 1 of the same law are abolished, and in lieu thereof it is declared that those facts did not fall under the abovementioned legal provision. 

The full exercise of the State’s punitive powers with regard to the offences committed in pursuance of State terrorism up to 1 March 1985 and falling under Article 1º of Law 15.848 of 22 December 1986 [1986 Amnesty Law] is restored. 

Article 1. A general, and full, political amnesty is granted to all those persons who, confronted to the general established order, have been prosecuted, sentenced or are being pursued for committing, with political motivations, political or related offences up until 31 December 1992.

As a result, all those persons, whether prosecuted or not, sentenced or in the process of being sentenced, for committing, with political motivations, political or related offences provided for in ordinary or military criminal legislation will be covered by the present Law. The effects of this amnesty will extend to all the authors of, and participants in, these offences.

Article 2. In accordance with the previous article, criminal procedures as well as administrative, judicial, military and police processes initiated by any organ of the State, ordinary or military criminal tribunals, corresponding to the offences referred to in the previous article shall be extinguished.

In addition, the sentences and sanctions [imposed] on the authors and participants are in general condemned. 

Article 1. Amnesty will be granted to all those persons, confronted to the general established order, who … have been subjected to criminal proceedings, [and] have been prosecuted or sentenced for the commission of offences during the following acts:

Article 2. In accordance with the previous article, criminal procedures, judicial, military and police processes initiated by any organ of the State, ordinary or military criminal tribunals, corresponding exclusively to the offences referred to in the previous article shall be extinguished. 

In non-international armed conflicts, those who raise arms against a legitimate government are subject to the penal sanctions imposed by the State in question since legally they do not have the right to participate in combat or to take up arms. If they nonetheless do raise arms in such circumstances, they thereby commit crimes such as rebellion or sedition. These crimes are punishable under domestic law since the application of international humanitarian law in internal [armed] conflict does not imply the recognition of belligerence, nor does it change the legal status of the parties to the conflict (since the government in question is not compelled to grant the status of prisoners of war to its [captured] opponents) nor does it suspend the applicability of domestic criminal law. In contrast to international armed conflicts, there is no “combatant privilege” [in internal armed conflict] … It is precisely for this reason that Article 2(2) of [the 1977 Additional] Protocol II extends humanitarian protection to persons who have been deprived of their liberty for reasons related to the internal conflict.

In such circumstances, one can understand the reasons for a rule that, after the end of an [internal armed] conflict, the government in power should grant as broad an amnesty as possible due to reasons related to the conflict. This is what clearly emerges from the text and context of the provision, namely that the purpose of the amnesty would be to facilitate the re-establishment of social peace by supporting the defeated in the conflict who are in the hands of those who hold the power in the State, facilitating the restoration of peace in that society. 

In internal armed conflicts … those who have taken up arms do not in principle enjoy prisoner-of-war status and are consequently subject to penal sanctions imposed by the State, since they are not legally entitled to fight or to take up arms. In so doing they are guilty of an offence, such as rebellion or sedition, which is punishable under domestic legislation … It is easy to understand the purpose of a provision designed to ensure that the authorities in power will grant the broadest possible amnesty for reasons related to the conflict, once hostilities are over, as this can pave the way towards national reconciliation. 

Regardless of the fact that Decree-Law 2.191 of 1978 can be considered contrary to international ius cogens, said Decree-Law is not tantamount to a true pardon in accordance with the Spanish rules applicable in this case and can be considered a rule that waives punishment for reasons of political expediency; it therefore does not apply in the case of someone who has been acquitted or pardoned abroad … but rather in the case of conduct … that is not punishable in the country in which the offence was committed … which has no effect on Spain’s extraterritorial jurisdiction in application of the principles of protection and universal persecution. 

[t]he promulgation of a law of general amnesty with regard to the soldiers, combatants and civilians of the politico-military movements of APRD, FDPC and UFDR for crimes and offences prosecuted under national Central African jurisdiction. 

[H]aving conducted a profound analysis of all questions, roots and causes of the armed conflict and the crisis, noting all the disastrous consequences brought about by the war;

…

The exiled combatants and soldiers of FRUD are granted amnesty without exception for the acts committed before 12 June 1994, and they shall regain all their civil rights. Their safety is guaranteed by the State. 

46. Following independence in 1977, Djibouti experienced a difficult period of internal tension, which led to a visible, steady rise in violations of human rights and individual freedoms. This state of affairs reached its height during the civil war between government forces and the armed opposition of the Front pour la restauration de l’unité et de la démocratie [Front for the Restoration of Unity and Democracy] (FRUD).

47. With the signing of [the] peace agreement between the warring parties in 1994 and again in 2001, the human rights situation improved dramatically. …

…

49. … Djibouti has … adopted a number of laws … These include the law declaring amnesty for acts other than droit commun offences committed between 1994 and the date of the law’s promulgation … Many … demobilized FRUD combatants have benefited from this legislation. 

34. The Republic of Djibouti’s peaceful history was tarnished by a brief difficult period of internal armed conflict between 1991 and 1994.

…

40. The conflict, which had a disastrous effect on the national economy and caused widespread destruction, mostly in the north of the country, ended with the signing of two peace agreements.

41. The Aba’a peace and national reconciliation agreement of 26 December 1994 between the dissident wing of FRUD [Front for the Restoration of Unity and Democracy] and the Government signalled the end of armed conflict and a return to peace. The combatants were amnestied and returned to their civilian and military occupations. The public infrastructure destroyed by the conflict was rebuilt (hospitals and dispensaries, schools, water and electricity supply systems, and basic administrative services). 

The internal armed conflict gave rise to acts that could, in legal terms, be classed as political offences or ordinary offences. In the interests of achieving peace and reconciliation in Guatemala, there was a need for fair and even-handed treatment that took into account the various circumstances and factors involved in the armed conflict. To that end, the National Reconciliation Act was adopted under Decree No. 1445-96, which laid an obligation on the State to assist victims of armed conflict, such assistance to be provided, under the supervision of the Peace Secretariat, by governmental measures and programmes of a civil, social and economic nature. The Act does not, however, apply to the crimes of genocide, torture and enforced disappearance, or to any other offences that are not subject to statutory limitations or discharge from criminal liability in accordance with domestic law and the international treaties ratified by Guatemala. 

73. The implementation of this article of the Convention encounters serious obstacles in Senegal and this has led to much debate between the authorities of the country, on the one hand, and the United Nations human rights monitoring bodies and some non-governmental organizations, on the other. In order to have a better idea of the problem, this report must clearly describe the position under international and internal law and the facts at issue.

74. Basically, both international and Senegalese internal law are applicable.

75. Article 12 of the Convention against Torture provides that “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”.

76. Article 79 of the [2001] Constitution stipulates that “Treaties or agreements duly ratified or approved shall, upon their publication, prevail over the laws, subject to each treaty or agreement being implemented by the other party”.

…

83. Amnesty laws also exist: the Act of 4 June 1988, the Act of 10 July 1991 and the Act of 8 July 1993. These legal texts were adopted by the Senegalese legislative authorities between 1988 and 1993 in response to the growing instability in the Casamance region, in the south of the country, after December 1982. Their aim was to enable the authorities to restore peace throughout the country whenever the opportunity arose and to repair the national social fabric, which had been damaged by events in this region.

84. Under article 8 of these texts, all offences and all principal, related, secondary or supplementary judgements in criminal or correctional cases were amnestied under the first articles. They were to be expunged forever from the police record of the persons concerned. Moreover, these texts prohibited any public servant or other official from referring to these offences or to the judgements relating to them under any pretext whatsoever.

85. As far as the facts at issue are concerned, it will be remembered that the 1980s were a time of serious instability in the Casamance region in the south of Senegal and that this resulted in the intervention of the armed forces to restore and maintain order. This conflict between the central Government and the separatist movement in the region (MFDC [Movement of Democratic Forces of Casamance]) took the form of armed confrontations leading to deaths and injuries on both sides.

86. One of these clashes, at Kaguitt on 1 September 1992[,] was particularly deadly, as it occurred the day after the agreement was signed between the Senegalese Government and the separatist movement. The latter broke its promises by suddenly taking up arms again. The security forces arrested many persons who were brought before the courts.

87. The 1993 agreement led to the release of all persons detained in connection with this event, even before trial. However, some Senegalese and international non-governmental organizations took up the Kaguitt file by lodging a complaint with the African Commission on Human and Peoples’ Rights in Banjul and with the monitoring bodies of the Commission on Human Rights in Geneva. These complaints contained a list of the names of persons who had allegedly disappeared or been executed extrajudicially during the September 1992 events.

88. The Senegalese Government was questioned by both bodies and asked to conduct investigations in accordance with the provisions of article 12 of this Convention and to try and punish the guilty parties.

89. The Senegalese authorities pointed out that the amnesty laws had erased the memory of this tragic episode in Senegal and that, in their opinion, further reference to these events would jeopardize the peace which had already been established and even the stability of the country.

…

95. The various events described above have prompted much discussion between the Senegalese authorities, on the one hand, and humanitarian organizations and the human rights monitoring bodies, on the other.

96. With regard to the presumed disappearances and extrajudicial executions in connection with the events in Casamance in general, the human rights monitoring bodies are demanding that impartial investigations should be conducted in accordance with article 12 of the Convention to identify the persons responsible, who would then be tried and punished. The Senegalese authorities have pointed out, in this connection, that the amnesty laws no longer permit such investigations, which would be likely to jeopardize the newly restored peace, national cohesion and the stability of public institutions.

97. The Senegalese authorities have received the reply that article 79 of their own Constitution gives the Convention precedence over the internal law of the State party to the international instrument. As the Convention is a multilateral international instrument reciprocally applied by several States parties, this situation is becoming a permanent problem. 

…

The Committee is concerned that, in its report, the State party invokes a discrepancy between international and internal law to justify granting impunity for acts of torture on the basis of the amnesty laws.

200. In the 1990s, as part of the search for possible solutions to the crisis in Casamance, Parliament was obliged to pass an amnesty law specifically targeting the combatants of the Movement of Democratic Forces of Casamance in order to ease tensions and to establish a framework conducive to cooperation and dialogue that would bring about lasting peace.

201. The improvement in the situation that this brought allowed the Government of Senegal to open a dialogue with the leaders of the Movement and, on 30 December 2004, to conclude peace agreements that were welcomed by all. The restoration of peace went hand in hand with a project in which the State is investing tens of thousands of CFA francs to rebuild the devastated region. The plan is intended to stimulate economic recovery and to facilitate the integration of former combatants into the workforce.

202. War and armed conflict are closely associated with the denial of fundamental human rights. Their prolongation is tantamount to creating a climate conducive to the perpetration of acts of torture and other violations of the physical integrity of human beings.

203. However, the Declaration on the Right of Peoples to Peace, adopted by the General Assembly in its resolution 39/11 of 12 November 1984, clearly provides that: “The peoples of our planet have a sacred right to peace” and that “the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State”.

204. Senegal fully subscribes to the view expressed by the Human Rights Committee in its general comment No. 20 of 10 April 1992 on the prohibition of torture or cruel, inhuman or degrading treatment or punishment when it states that: “Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.”

205. Nevertheless, Senegal would like the Committee to take into account the fact that the sole aim of the aforementioned amnesties was to restore peace and to put an end to a situation that was conducive to massive violations of fundamental human rights.

206. The amnesty laws adopted in order to bring peace to the Casamance region were born out of the necessity to respond to “a pressing social need” and Senegal, in good faith, maintains that it acted to safeguard the general interest without undermining the basic rights of the individual in any fundamental way.

207. Indeed, under the Senegalese legal system, although an amnesty law does bar criminal prosecution and remits any sentences that have been handed down, it does not eradicate material facts or their civil consequences. It is always possible for victims to refer their case to the civil courts in order to obtain a settlement that will grant them just satisfaction. 

Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 

128. The Government has adopted a number of strategies aimed at persuading the different armed groups to give up rebellion. Significant among these is the enactment of the Amnesty Act, 2000. The main objective of this Act is to provide for amnesty to Ugandans involved in acts of a war like nature in various parts of the country.

129. Under section 3 of the Amnesty Act, amnesty is declared in respect of any Ugandan who has at any one time since 1986 engaged in or is engaging in war or armed rebellion against the Government of Uganda. A person granted amnesty shall not be prosecuted or subjected to any form of punishment for the participation in war or rebellion or for any crime committed in the cause of war or armed rebellion. An Amnesty Commission is established under the Act to administer the grant of amnesty and to help the former rebels to integrate in their communities. 

97. In January 2000 the Amnesty Act became law after presidential assent. The main purpose of the law was to encourage a peaceful resolution of rebellion particularly by the LRA [Lord’s Resistance Army] in Northern Uganda. Accordingly the Amnesty Act offered full pardon for all persons (Children & Adults) involved in insurgency on condition that they abandon acts of rebellion and seek amnesty.

98. Section 3 (1) of the current Amnesty Act declares an Amnesty in respect to any Ugandan who has, at any time since 1986, engaged in war or armed rebellion against the Government of Uganda by actual participation in combat. … It also outlines that such persons shall not be prosecuted or subjected to any form of punishment for participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion as long as they renounce their activities and apply for Amnesty. This is in consonance with the Article 28 (10) of the Constitution that guarantees non prosecution to those who claim the amnesty:

Therefore those … who request and receive the amnesty receive a pardon that is constitutionally guaranteed. As such, all rescued children and sometimes adults from the LRA have the right to seek amnesty and should be released into the hands of the Amnesty Commission or other rehabilitation agencies unconditionally. While the law guarantees non-prosecution of all persons, it does put on record the fact that the person granted amnesty was engaged in combatant acts against government and committed crimes, and therefore unfair to children, who are forcefully conscripted and forced to commit crimes. 

We may note at this point that despite the difficult circumstances besetting Yemen in the summer of 1994 as a result of a war of secession, the Government was able to respect human rights. No special courts were established; on the contrary, a general amnesty was proclaimed for all those who took part in the unrest, and fundamental human rights were respected and were not violated in any way. The course of democracy has continued since that time, and the war of the summer of 1994 is over and done with. The subsequent extension of the general amnesty, by republican decree, to the persons whose names were included in the “list of 16” reflected the nation’s conviction that the Republic of Yemen had room enough for all. Appropriate steps were taken to deal with their situations and their property, and they were given posts suited to their skills and qualifications, in accordance with the declaration of amnesty. 

[T]he Yemeni Government managed to safeguard human rights, notwithstanding the difficulties that Yemen confronted during the war of secession in the summer of 1994. The Government did not establish any special courts but instead declared a general amnesty for those responsible for the war. Fundamental human rights were protected and were not infringed in any way. 

To investigate and clarify without further delay the fate of persons arrested for political reasons who have subsequently disappeared, without the granting of amnesty which creates an obstacle for the identification of those responsible and the administration of justice. 

One potential obstacle to the return of young adult males is the requirement that they first undergo interrogations by Croatian authorities concerning their activities on behalf of the so-called “Republic of Serb Krajina”. In the absence of broad amnesty legislation, these interrogations have caused widespread apprehension among potential returnees, as well as delays in the processing of applications. 

54. The new Law on Amnesty, passed by the Parliament on 25 September 1996, has been hailed by most observers as a significant step towards both the return of Croatian Serb refugees and the peaceful reintegration of the region of Eastern Slavonia into the rest of the country. However, the Special Rapporteur’s attention has been drawn to the need to scrutinize the Law’s application in practice.

55. The Law, which became effective on 3 October 1996, applies to criminal acts referred to in Croatian legislation as “participation in armed rebellion”, and specifically excludes war crimes. The Law stipulates that all current investigations and trials shall be stopped, all completed trials annulled and all prisoners sentenced for “armed rebellion” released.

56. Some 100 prisoners reportedly were released between 5 and 7 October 1996 from various detention centres in Croatia. The Special Rapporteur has received reliable information, however, that at least seven of these persons were rearrested only a few days after their release in connection with an investigation of alleged involvement in war crimes by the Karlovac Public Prosecutor’s Office, although they had not previously been charged with war crimes. The remainder of those released reportedly were to be transported at their request to the FRY [Federal Republic of Yugoslavia] for resettlement.

57. The rearrest of several Croatian Serbs is of great concern to the Special Rapporteur, and she will seek to monitor this situation closely. The potential benefit of the new amnesty legislation in raising the confidence of Croatia’s Serb population and encouraging returns will be substantially damaged if persons still find themselves the subject of criminal proceedings. 

I warmly welcome the adoption yesterday of a Law on Amnesty by the Assembly of the former Yugoslav Republic of Macedonia (FYROM).

With its adoption, the elected representatives of the citizens have taken a courageous step forward, towards peace, stability and reconciliation. 

The Commission considers … that the amnesty law, which is entirely exceptional in character, was adopted in the context of a process designed to resolve conflicts between the various communities of the islands.

It is not for the Commission to assess the advisability of the measures taken by France to that end. The State is justified in adopting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected by law.