Peace v. Justice: Amnesties, Transitional Justice and International Law

A.  Introduction

“If peace is not intended to be a brief interlude between conflicts, then it must be accompanied by justice.”

Professor Cherif Bassiouni

The debate concerning transitional justice reveals much disagreement about the relationship between peace and justice. It raises multiple questions: should justice be pursued in response to mass atrocities when conflicts are still ongoing, or is it better to be delayed? Should peace and justice go together, or should justice always follow peace? Will granting amnesties to perpetrators of mass atrocities help or hinder building peace?[1]

These debates often arise in two stages. First, before the transitional justice[2] process begins- “throughout negotiating peace with dictatorship regimes or during the atrocities”. Second, throughout transitional justice process “after the step down of dictatorship regime or the cease of atrocities”. Civilians and a few individuals among the conflicting parties during these two stages always look forward to the cessation of hostilities and living in peace. Thus, we find a mass of people calling for reconciliation through amnesties, and to do away with the prosecution against the commission of the serious crimes or gross violations of human rights. For example, in mid-2018, the Houran People (the residents of Daraa city in Syria) sought reconciliation with the Government of Syria (GoS) by entering negotiations with the Russians; however, the GoS had met the uprising by levelling accusations of conspiracy. The reconciliation was sought with the aim of restoring peacefulness and expelling the foreign militias.[3]

One of the reasons that drives people to seek reconciliation is that prosecutions are seen as a threat to peace. Rebels often stand against such prosecutions, especially in countries where the military maintains its power during or after the transition period. For instance, the refusal of prosecution of military officers for their past human rights violations has caused rebellions against the Argentinian government.[4] On the other hand, many scholars believe that justice must be sought for numerous reasons, including but not limited to, keeping the prospective option of peace for a longer period of time. [5]

To consider the above-mentioned questions adequately, one needs to examine previous experiences and evaluate the accountability question vis-a-vis treaties, national and international case laws, and scholarly work.

B.  Case studies

1.  South Africa

For decades, South African history has been dominated by a serious conflict between a minority which controlled the political regime of the State and a majority who was resisting that domination. It eventually became clear to both the minority and the majority, that this conflict would ruin the country with all its natural wealth and human resources. It was this realization which mercifully rescued South African citizens in the early nineties, as those who controlled the State power began to negotiate a different future with those who had been imprisoned, silenced, or driven into exile. Those negotiations resulted in an interim Constitution committed to a transition towards democratic political order based on the protection of fundamental human rights. The negotiators widely acknowledged that the task of building such a new democratic order, would be very difficult due to historical and deep-rooted emotions of indefensible inequities that had been generated. The new government could not be formed without a firm and generous commitment to reconciliation and national unity. During the negotiations, it was recognized that much of the past abuses could not ever be fully repaired, and that it might be necessary to close the book on that past.[6]

The preamble of the Constitution of the Republic of South Africa (Act 200 of 1993) facilitated the bridge between the past, a deeply divided society characterized by conflict and injustice, and a future founded on the recognition of human rights, democracy, peaceful co-existence, and development opportunities for all South Africans. The pursuit of national unity, the well-being of all South African citizens and peace required reconciliation between the people of South Africa, as well as, the reconstruction of its society. The preamble further provided that in order to advance such reconciliation and reconstruction, amnesties should be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past.[7]

By virtue of the provisions of Act 200 of 1993, in 1995, South African Parliament enacted the Promotion of National Unity and Reconciliation Act 34 of 1995, colloquially referred to as the Truth and Reconciliation Act.[8]

The South African Truth and Reconciliation Commission (TRC)[9] was formed in 1995 after the end of apartheid. Its mandate was to record and acknowledge crimes motivated by the political aims of protecting apartheid or fighting to abolish it. Initially, the TRC was only entitled to recommend reparation. However, overtime, the TRC’s mandate expanded to include the authority to grant amnesty to the perpetrators of crimes that were politically motivated, in proportion to their political objective, and with a full disclosure of true facts.[10]

Amnesty hearings from both sides began in April 1996. The TRC heard testimony from thousands of victims and witnesses, in both closed proceedings and public hearings. On 28 October 1998, the commission presented its formal report, which condemned both the apartheid government and the African National Congress for committing atrocities.[11]Although the TRC is largely regarded as having been crucial to South Africa’s peaceful transition from apartheid, the offer of “amnesty in return for truth”[12] has been the most controversial aspect of the TRC’s mandate.[13]

While blanket amnesties have often been condemned continuously,[14] the Amnesty Committee of South Africa’s TRC asserted that “the country’s amnesty process was unique in that it provided not for blanket amnesty but for a conditional amnesty, requiring that offenses and delicts related to gross human rights violations be publicly disclosed before amnesty could be granted”.[15]Nevertheless, it has been said that if South Africa’s amnesty- the conditional amnesty- was challenged before international human rights mechanisms, it is doubtful that it would have survived the legal standards developed by Human Rights Committee and like bodies.[16]

2. Sierra Leone

Between 1991 and 2002, Sierra Leone witnessed an internal armed conflict between the government and various non-state actors, mainly the Revolutionary United Front. In July 1999, the conflicting parties signed Lomé Peace Agreement (LPA) in Lomé, Togo. The LPA entitled “pardon and amnesty,” and stated that in order to bring lasting peace to Sierra Leone, the Government of Sierra Leone should take appropriate legal steps to grant different parties an absolute and free pardon.[17]

Soon thereafter, the power-sharing elements of the LPA collapsed, and the country suffered a serious outbreak of violence in May 2000, at the end of which the international community intervened using force. Consequently, the government and the international community established not only the Truth and Reconciliation Commission[18] but also a hybrid Special Court for Sierra Leone (SCSL), where those bearing the “greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law” would be tried.[19] The SCSL stated that amnesties granted to any person fall within its jurisdiction, and that amnesties for the crimes referred to in Articles 2 to 4 of the SCSL’s Statute shall not be a bar to prosecution.[20] In the same view, the Appeals Chamber of the SCSL declared amnesty to be incompatible with the Court’s Statute.[21] This was an explicit assurance regarding the importance of justice to guarantee long-lasting peace.

3. El Salvador

It is unimaginable that leaders, engaged in atrocities and serious crimes, would agree to a peace settlement if they would find themselves or their close associates facing major punishments.[22]

El Salvador is a clear model of a blanket amnesty law which came as a direct response to a Truth Commission’s report that questioned the incapacity and bias of the courts, capacity of holding fair trials, etc.[23] After the Commission published its report naming over forty high-level officials responsible for serious abuses, the President of El Salvador immediately introduced a bill in Parliament to award a broad, absolute, and unconditional amnesty to all those who participated in political offenses or crimes with political ramifications. The bill was passed in Parliament a mere five days after the publication of the report.[24]

Sharp criticism has been directed against the Truth Commission. According to a senior staff member, “the commissioners even considered recommending that an amnesty be passed, given the extremely biased state of the judicial system.” Also, the head of one international rights organization felt that this argument “undid everything else good in the report” by taking away the expectation and obligation of the judicial system to work.[25]

Despite the strong criticism against the Truth Commission’s silence on the question of amnesty, Commissioner Thomas Buergenthal justified the Commission’s position arguing that to recommend prosecutions when serious trials were out of the question would have made things worse. “They would have gone through the motions and acquitted the accused” he said, giving the government an opportunity in effect to retry the commission’s findings.[26]

“How would you expect anyone to testify against these people? Who would testify against Defense Minister Ponce, for example?[27] Trials would have had the opposite effect of what people expect, I am sure. Nobody would have given testimony, and everybody would be acquitted, except those on the left. People were almost too scared to talk to us” Buergenthal further commented.[28]

Several months after the amnesty, members of the high command who were named in the report were retired from the armed services, with full honors. Thus, some observers saw amnesty as a package deal by which military officers received an amnesty in exchange of their voluntary retirement.[29]

When amnesty was brought before the Inter-American Commission on Human Rights, it ruled that laws restricting or prohibiting prosecutions of the military in El Salvador violate the American Convention on Human Rights. The Commission based its conclusions on Article 25 (right to a remedy provision) read together with protections of the right to life and physical integrity, Article 1 (the obligation to ensure rights), and Article 8 (the right to due process or judicial process).[30]

Eventually, the country found its way towards peace and democratic change, although little progress was made towards the attainment of justice over the next seventeen years.[31]

4. Yugoslavia

In May 1999, the then-Yugoslav President Slobodan Milošević was indicted by the International Criminal Tribunal for the former Yugoslavia at a time when he was engaged in negotiations aimed at securing an end to the conflict in Kosovo. Many feared that the indictment would increase the conflict length, but Mr. Milošević agreed to withdraw Serbian forces from Kosovo shortly thereafter. One diplomat concluded: “These and other cases cast considerable doubt on the received wisdom that peace and justice are somehow at odds.”[32]

It is noticeable that in contrast to the prevailed claims, peace agreements have been reached without amnesty provisions in some situations where amnesty had been said to be a necessary condition of peace.

C. Application of amnesty in international laws

1. Amnesty in treaties and customary international law

International law indicates specific groups of rights that are non-derogable and cannot be suspended even within an emergency state. These groups of rights include gross violations of human rights, like torture and arbitrary deprivation of one’s life.[33]

Impunity for the perpetrators of those crimes forms impermissible ex post facto derogation of rights.[34] In other words, impunity exempts the perpetrators retroactively from their liability for the actions that were considered crimes when they had committed those actions. This is unacceptable due to the retroactivity nature of the impunity, and because it violates the international human rights law[35].

Article 8 of the Universal Declaration of Human Rights provides: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Besides, the HRC commentary on Article 2 (3) of International Covenant on Civil and Political Rights (ICCPR) holds that pardons and blanket amnesties violate the right to remedy, as they provide an impunity climate and prohibit the victims’ rights to a remedy.[36]

When it comes to core international crimes like genocide,[37] amnesty for its commission not only violates the ICCPR[38] but also jus cogens norms, as held by the International Court of Justice.[39] Furthermore, the duty to punish perpetrators of genocide is embedded in customary international law. This means that an amnesty that prevents prosecution of genocide would violate States’ obligations under customary law as well.[40] Likewise, an amnesty that exempts crimes against humanity from punishment and/or civil remedies would contradict State parties’ obligations under several comprehensive human rights treaties including the ICCPR and the American Convention. These treaties do not explicitly prohibit these international crimes but have been interpreted to require the punishment of crimes against humanity.[41] 

According to the international human rights law, torture shall also be considered a crime under national criminal laws.[42] The crime of torture is sanctioned under international law and attracts punishment[43] while providing remedial claims to the victims.[44] Thus, any amnesty for the perpetrators of torture crimes would be in violation of international law and would be considered internationally unlawful.[45] In addition, the prohibition of torture is a rule of jus cogens,[46] and cannot be allowed even by a treaty.

2. Amnesty before International Courts

The International Criminal Court (ICC)

Many of the ICC’s commentators[47] claim that targets of the ICC will certainly “dig their heels in” and have little choice but to fight to the bitter death. Yet critics assume that all the targets of the ICC will fight to the death and never agree to peace. Other critics, including Thabo Mbeki and Mahmood Mamdani[48], believe that reconciliation,[49] restorative justice,[50] and truth-telling[51] are more appropriate means of building long-lasting and meaningful peace as opposed to pursuing an international criminal justice model.[52] Nevertheless, from the preamble of the Rome Statute, it seems that the ICC has no intention to accept amnesties.[53]

However, few articles of the Rome Statute of the ICC can be seen to provide implicit basis for amnesties through shielding perpetrators from criminal responsibility for crimes that they had committed.

Article 16 provides that upon the request of the United Nations Security Council (UNSC), the ICC may not commence or proceed with an investigation or prosecution for renewable 12 months.  

Statutorily, the UNSC has the authority to require the ICC to respect an amnesty if two requirements are met, namely: (1) where the Security Council has determined the existence of a threat to the peace, a breach of the peace or an act of aggression under Article 39 of the UN Charter; and (2) where the resolution requesting the Court’s deferral is consistent with the purposes and principles of the United Nations with respect to maintaining international peace and security, resolving threatening situations in conformity with principles of justice and international law, and promoting respect for human rights and fundamental freedoms under Article 24 of the UN Charter.[54] In practice, such a deferral may well arise where a member state of the UNSC is engaged in peace negotiations with the fighting parties.[55]

At the onset, it is clear that suspension of prosecutions, by virtue of Article 16 of the Rome Statute, is neither absolute nor permanent.[56] Moreover, it is suggested that the ICC is entitled not to (throughout examining the deferral for the first time or its renewal) be compelled by a UNSC’s Resolution to terminate an investigation or prosecution were it to find that an amnesty encompasses infringement of international conventions that create obligations to prosecute.[57] To sum up, the ICC has its own discretion power to accept the UNSC’s request or reject it.  

Furthermore, one of the strong evidences that support the above-mentioned claim is the decision of the Appeals Chamber of the Yugoslavia Tribunal in the Tadic case.[58] This decision suggests that the ICC has the authority to independently assess whether these two requirements (under which the UNSC has the authority to require the ICC to respect an amnesty) were met as part of its incidental power to determine the propriety of its own jurisdiction (competence de la competence).[59]

Under Article 17(1)(b), a case would stand inadmissible if it had been investigated or if a decision had been made not to proceed with the prosecution upon investigation, unless the said decision resulted from the unwillingness or inability of the state to genuinely prosecute.

By virtue of Article 17, amnesty will not be accepted before the court if this amnesty was due to a country’s unwillingness to prosecute with the purpose of protecting the person from criminal responsibility for crimes within the jurisdiction of the Court.[60] 

If the national court’s decision not to prosecute was based on reasons other than the unwillingness and inability, the ICC thereby will not vest itself with jurisdiction over the crime. The reason for this is that the jurisdiction of the ICC is intended to be complementary[61] (not alternative) to that of States.[62] To clarify, not having the jurisdiction to prosecute is different from passing an amnesty for crimes that are in the ICC’s jurisdiction.

It is clear from both the Rome Statute and the ICC’s current practice that national immunity arrangements which prevent prosecution will not be respected by the ICC regardless of any argument of national “preference” for an “alternative” approach.[63] The ICC intends to prosecute those “most responsible” for serious crimes, and thus might not have any impact on an amnesty that applies to many other perpetrators.[64]

This is consistent with the ICC’s recent ruling in the case of Saif Al-Islam Gaddafi. On 27 June 2011, the Court issued an arrest warrant against the accused on charges of murder and persecution as crimes against humanity.[65] In June 2018, the accused introduced an admissibility challenge based on two claims. One of those claims was based on the fact that he had been released from prison on an application of a Libyan amnesty law.[66] The ICC’s Pre-Trial Chamber I rejected Gaddafi’s admissibility challenge in a decision.[67] The Court concluded that granting amnesty for the crimes alleged against the defendant is incompatible with internationally recognized human rights.[68]

On 9 March 2020, the Appeals Chamber’s judgment essentially confirmed the Pre-Trial Chamber’s decision.[69] It also decided that for the purpose of the admissibility challenge, it was sufficient to say that “international law is still in in the developmental stage on the question of acceptability of amnesties” when compared to the Pre-Trial Chamber’s statement about “a strong, growing, universal tendency“ opposing the granting of amnesty for crimes against humanity.[70]

Although this latest decision has been considered as a backtracking and refrainment from affirming a general ban on amnesties[71], it does not change the fact that the amnesty has not been admissible before the ICC till now. Furthermore, even if amnesties one day become (under certain conditions) compatible with international laws, this does not oblige the ICC to admit amnesties as the ICC is entitled to commit primarily to its case law that prohibits amnesties.[72]

The European Court of Human Rights (ECtHR)

In the case of Jelić v. Croatia, the ECtHR affirmed the country’s obligation to prosecute the perpetrators of human rights violations on the account that the national authorities should have carried out an adequate and effective investigation.[73] The ECtHR additionally noted that the main purposes of imposing criminal sanctions include retribution as a means of justice for victims and general deterrence.[74] These aims cannot be obtained without bringing the alleged perpetrators to justice.[75]

The Inter-American Court of Human Rights (IACtHR)

The IACtHR, in several important cases including Barrios Altos v. Peru[76], concluded that amnesty for the perpetrators of serious human rights violations was incompatible with the right of each person to a fair hearing before an impartial and independent court.[77]

D.  Conclusion

The experience of Sierra Leone and Argentina highlight that amnesties which exempt individuals from criminal sanction for atrocious crimes in the hope of securing peace have often failed to achieve their aim and have instead encouraged committing further crimes. Conversely, peace agreements have been reached without amnesty provisions in some situations, such as Yugoslavia, where amnesty had been alleged to be a necessary condition of peace and where many had feared that indictments would prolong the conflict. The UN has recognized that, when properly pursued, justice mechanisms can help ensure a just and sustainable peace by opposing amnesties that afford impunity for atrocities.[78]

In addition, truth commissions that are used throughout the transitional justice periods, although they greatly differ in their powers and results, offer these guiding principles: independence,[79] complementarity,[80] victims’ empowerment,[81] and flexibility.[82]Truth Commissions work better when they complement the full exercise of victims’ rights to pursue criminal justice and reparations rather than serve as a substitute for those rights.[83]

Moreover, reparations only are not enough since mere monetary compensation cannot remedy the entire harm suffered by victims. Reparation efforts should be designed in close link with other transitional justice or redress initiatives, for instance, criminal justice, truth-telling and institutional reform.[84] Therefore, truth, justice and reparations shall complement each other. None of them can replace the other in response to gross violations of human rights. Measures of intermediate justice such as the establishment of Truth Commissions should not exempt perpetrators from the criminal process in exchange for their testimony.[85]

One of main reasons behind the call for criminal punishment is that it is an effective deterrence against future violations.[86] The UN Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities have concluded that impunity is a major reason for continuing human rights violations throughout the world.[87]

Last but not least, prosecutions, as one of the transitional justice measures, play a vital role in promoting civic trust by reaffirming the relevance of the norms that perpetrators violated, norms that turn natural persons into rights-bearers. Judicial institutions would have the opportunity to prove their trustworthiness if they can establish that no one is above the law.[88] This would positively affect the nation’s unity.

Eventually, in cases where it is completely impossible to reach justice and peace at the same time, I tend to support the suggestion that the demands of justice and political stability can be reconciled through a model of prosecutions that has strict limits, to the extent that the purpose of prosecutions is to prevail the rule of law and deter repetition of violations. It is not necessary that a transitional government prosecute all who participated in previous crimes. Once the main targets of criminal law enforcement are achieved, further prosecutions may reverse progress toward consolidating a democratic transition.[89] To elucidate, if the prevalence of the rule of law and deterrence will be achieved through prosecuting, for instance only the most responsible persons for crimes or only the persons who were involved in most serious crimes, it will be unnecessary to prosecute the those who participated in less serious crimes.[90]


Fares Abdelhamid is an Egyptian Lawyer and Legal Researcher. He obtained his Bachelor of Laws degree from the Faculty of Law at University of Ain Shams, Cairo, Egypt. He also studied at the University of Nottingham, United Kingdom. His practical experience varies between International Human Rights Law, International and National Criminal Law, Labor Law, and Family law.


[1] Mark Kersten, Seeing the Forest for the Trees: The International Criminal Court and the Peace-Justice Debate, Justice in Conflict blog, 21 July 2016 https://justiceinconflict.org/2016/07/21/seeing-the-forest-for-the-trees-the-international-criminal-court-and-the-peace-justice-debate/ last checked 19 March 2021.

[2] Transitional justice is the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination of all of them.

[3] Haytham Manna, Reconciliation Initiatives in Daraa: A Testimony for History, October 2020, https://dam.gcsp.ch/files/doc/reconciliation-initiatives-daraa last checked 12 March 2021.

[4] Argentine Departs, Democracy Hardly Bankrupt, N.Y. Times, 8 July 1989, at 2, col. 1.

[5] For instance, Ms. Diane F. Orentlicher sees that governments should sue their predecessors’ atrocious crimes to enhance a society’s democratic culture. Also, Mr. Malamud-Goti considers that the importance of seeking justice lies in the deterrence of potential violators.

[6] The Constitutional Court of South Africa, Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others, https://collections.concourt.org.za/handle/20.500.12144/2014 last checked 21 March 2021.

[7] The Republic of South Africa’s Act 200 of 1993.

[8] The Constitutional Court of South Africa, note 6.

[9] Truth commissions in general are nonjudicial, independent panels of inquiry typically set up to establish the facts and context of serious violations of human rights or of international humanitarian law in a country’s past. The commissions’ members are usually empowered to conduct research, support victims and propose policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional reforms. Most commissions focus on victims’ needs as a path toward reconciliation and reducing conflict over the past.

[10] Promotion of National Unity and Reconciliation Act, No. 34 of 1995, in 1 1995 JSRSA 2-385 (Truth and Reconciliation Act). The cut-off date was originally 6 December 1993, but was later extended to 11 May 1994.

[11] The International Center for Transitional Justice (ICTJ), Truth Commissions II Manual, www.ictj.org last checked 21 March 2021.

[12] South Africa’s Truth and Reconciliation Commission—had the power under certain circumstances to grant amnesties to perpetrators who completely and voluntarily revealed the truth about apartheid crimes. Some commentators believe it should be possible to forego prosecutions even for atrocious crimes if doing so would facilitate full disclosure of the truth.

[13] The International Center for Transitional Justice (ICTJ), note 11.

[14] See Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions (Economic and Social Council resolution 1989/65, annex, Principle 19); Special Court for Sierra Leone, Prosecutor v. Kondewa, Separate Opinion of Justice Robertson, para 47.

[15] Truth and Reconciliation Commission of South Africa, Report of the Amnesty Committee, vol 6, sect 1, chap 5, para 1. See also Special Court for Sierra Leone, note 14, para 32 (explaining that South Africa’s Constitutional Court had “approved an amnesty which was not ‘blanket’ because each person had to be considered in the circumstances of individual cases by a Truth and Reconciliation Commission”).

[16] Sherrie L. Russell-Brown, “Out of the crooked timber of humanity: the conflict between South Africa’s Truth and Reconciliation Commission and international human rights norms regarding ‘effective remedies’”, Hastings International and Comparative Law Review, vol. 26, No. 2 (2003), p. 227. The South African amnesty was challenged before South Africa’s Constitutional Court, which upheld the validity of the amnesty under both domestic and international law. The South African Court’s treatment of relevant international law has, however, been widely criticized.

[17] Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999 (S/1999/777, annex, art IX).

[18] Truth and Reconciliation Commission Act 2000, www.sierra-leone.org/Laws/2000-4.pdf.

[19] Elena Naughton, Sierra Leone: Case Study, Challenging the Conventional: Can Truth Commissions Strengthen Peace Processes?, International Center for Transitional Justice and the Kofi Annan Foundation, 2014.

[20] Statute of the Special Court for Sierra Leone, article 10 “Amnesty”.

[21] The Appeals Chamber of the Special Court for Sierra Leone, Prosecutor Against Morris Kallon, (Case No. SCSL-2004-15-AR72(E)), 2004, paras 86-88; The Appeals Chamber of the Special Court for Sierra Leone, Prosecutor against BRIMA BAZZY KAMARA, (Case No. SCSL-2004-16-AR72(E)), 2004, paras 86-88.

[22] Scharf, Michael P. (1999) “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, Cornell International Law Journal: Vol 32: Iss 3, Article 8.

[23] Priscilla B. Hayner, Unspeakable Truth, second edition.

[24] Ibid.

[25] Michael Posner, Lawyers Committee for Human Rights, interview, 13 March 1996, New York.

[26] Priscilla B. Hayner, note 23.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] The Inter-American Commission on Human Rights, Masacre Las Hojas v. El Salvador, Case 10. 287, Report No. 26/92, Inter-Am. C.H.R. OEA/Ser.L/V/II.83 Doc. 14 at 83 (1993) (hereinafter the “Las Hojas” petition).

[31] Priscilla B. Hayner, note 23.

[32] Darryl Robinson, “Serving the interests of justice: amnesties, Truth Commissions and the International Criminal Court”, European Journal of International Law, vol 14, No 3 (2003), p 481.

[33] Article 4(2) of the ICCPR.

[34] Juan E. Mendez, Accountability for the Past Abuses article, published by the Johns Hopkins University Press in collaboration with JSTOR Organization.

[35] Art 15(2) of ICCPR: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

[36] Recently, the Human Rights Committee had an occasion to issue a condemnation of blanket amnesties in commenting on Peru’s periodic report. Comments of the Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 Of the Covenant, 10, U.N. Doc. CCPR/C/79/Add.46 (1995) (Comments on Periodic Report by Argentina).

[37] Rome Statute of the International Criminal Court, art 6.

[38] Art 6(3) of ICCPR: “When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.”

[39] The International Court of Justice (ICJ), Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda), Rep 6, para 64, 2006.

[40] Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Amnesties, 2009.

[41] Human Rights Committee, General comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para 18.

[42] The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art 4(1).

[43] Ibid, art 4(2) and art 7(1).

[44] Ibid, art 14.

[45] A 1998 decision by a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) suggested, however, that an amnesty for torture (and, by implication, for other conduct whose prohibition in international law has the status of a peremptory norm) would be “internationally unlawful”. See Prosecutor v. Anto Furundžija, case No. IT-95-17/1-T, Judgement of 10 December 1998, para 155.

[46] A and others v Secretary o State for the Home Department (No 2) [2005] UKHL 71.

[47] Philippe Sands believed that the ICC’s arrest warrants will make Colonel Gaddafi dig in his heels. In addition, John Bolton in his speech on 10 September 2018 to the Federalist Society in Washington, DC announced that the United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this “illegitimate court”. Besides, Michael P. Scharf sees that it is unrealistic to expect leaders to agree to a peace settlement if they would find themselves or their close associates facing life imprisonment.

[48] Thabo Mbeki and Mahmood Mamdani, Courts Can’t End Civil Wars, 5 February 2014, https://www.nytimes.com/2014/02/06/opinion/courts-cant-end-civil-wars.html last checked on 18 March 2021.

[49] Reconciling individual victims and perpetrators.

[50] The use of truth and reconciliation commissions or informal customary mechanisms where the focus is on rebuilding or restoring relationships and community (Tutu 1999; Hayner 2010; Isser 2011). According to Martha Minow, it is repairing the injustice, to make up for it, and to effect corrective changes in the record, in relationships and in future behavior.

[51] The perpetrators of human rights violations completely and voluntarily reveal the truth about violations in return of amnesty (e.g. in South Africa).

[52] Mark Kersten, note 1.

[53] The Rome Statute of the ICC affirmed that the most serious crimes must not go unpunished and that their effective prosecution must be ensured. It further determined to put an end to impunity for the perpetrators of these crimes.

[54] Charter of the United Nations, art 24.

[55] Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice, second edition, 2016, p 697.

[56] Yasmin Naqvi, Amnesties and the ICC, the website of Peace and Justice Initiative, https://www.peaceandjusticeinitiative.org/implementation-resources/amnesties-and-the-icc last checked 21 March 2021.

[57] Scharf, Michael P. (1999), note 22.

[58] When the Appeals Chamber examined the jurisdiction of the tribunal (that was created by the Security Council) to review its establishment by the Security Council, it found that the International Tribunal has jurisdiction to examine the plea against its jurisdiction based on the alleged invalidity of its establishment by the Security Council.

[59] International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Tadic, Case No. IT-94-1-AR72 (Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995), paras 15-22.

[60] Yasmin Naqvi, note 56.

[61] The principle of complementary, in ICC context, is meant to reflect the primary role of national jurisdictions in prosecuting international crimes.

[62] Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran, International Human Rights Law, third edition, p 534.

[63] Priscilla B. Hayner, note 23.

[64] From the Court’s perspective, it would consider any amnesty on an individual, case-by-case basis: if an amnesty were granted domestically to someone of interest to the Court, it would likely find that the state is unwilling or unable to prosecute, and thus that the case is admissible before the Court.

[65] International Criminal Court, Warrant of arrest for Saif Al-Islam Gaddafi, ICC-01/11 (27 June 2011).

[66] International Criminal Court, Prosecutor v. Saif Al-Islam Gaddafi, (admissibility challenge) ICC-01/11-01/11 (5 June 2018).

[67] International Criminal Court, Prosecutor v. Saif Al-Islam Gaddafi, (admissibility decision) ICC-01/11-01/11 (5 April 2019).

[68] International Criminal Court, Prosecutor v. Gaddafi, (admissibility decision) paras 77-78.

[69] International Criminal Court, Prosecutor v. Saif Al-Islam Gaddafi, (admissibility appeal decision).

[70] Ibid, para 96.

[71] Josepha Close, The ICC refrains from affirming a general ban on amnesties in the Gaddafi admissibility appeal decision, 20 April 2020, https://internationallaw.blog/2020/04/20/the-icc-refrains-from-affirming-a-general-ban-on-amnesties-in-the-gaddafi-admissibility-appeal-decision/ last checked 19 March 2021.

[72] Ibid.

[73] Para 89: During the investigation three witnesses stated that A.H. had personally shot and killed Vaso Jelić. While a ballistic report was carried out in that connection (see para 29 above), that could not excuse the State authorities from taking further relevant steps to verify statements given by three witnesses. In the situation where the names of potential perpetrators have been revealed to the authorities by witnesses whose reliability has not been called into question and where some of them were direct eyewitnesses, it should be expected of the prosecuting authorities that they take appropriate steps in order to bring those responsible to justice. It does not appear however that such steps were taken.

[74] Para 90: In this connection the Court notes that among the main purposes of imposing criminal sanctions are retribution as a form of justice for victims and general deterrence aimed at prevention of new violations and upholding the rule of law.

[75] European Court of Human Rights (ECHR), Case of Jelić v. Croatia, Judgement, 12 June 2014.

[76] Inter-American Court of Human Rights, Case of Barrios Altos v. Peru, Judgment of March 14, 2001, https://www.corteidh.or.cr/docs/casos/articulos/seriec_75_ing.pdf

[77] Para 41: “This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.” In para 51(c) the Court found that Peru violated the right to a fair trial and judicial protection embodied in Articles 8 and 25 of the American Convention on Human Rights.

[78] Office of the United Nations High Commissioner for Human Rights, note 40.

[79] According to the International Center for Transitional Justice (ICTJ), independence of truth commission can be defined as having full autonomy to control its resources, conduct its investigation, build alliances and propose policy.

[80] According to ICTJ, complementarity can be achieved when the truth commissions reveal the truth about atrocity simultaneously with drawing comprehensive policies to punish perpetrators, comfort the victims, and put in place institutional reforms.

[81] According to ICTJ, victims’ empowerment refers to focusing on victims’ rights, interests and needs. It also could be the source of the truth through victims’ testimony.

[82] According to ICTJ, flexibility means not allowing the respect for legal strictures to hinder creativity and innovation.

[83] The International Center for Transitional Justice (ICTJ), note 11.

[84] Pablo de Greiff, Reparations Programs: Patterns, Tendencies, and Challenges in Dealing with the Past, Politorbis, N°50 3/2010, p 53.

[85] Office of the United Nations High Commissioner for Human Rights, note 39.

[86] Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals? 12 HUM. RTS. Q. 1, 12 (1990).

[87] United Nations Commission on Human Rights: Report on the Consequences of Impunity, U.N. Doc. E/CN.4/1990/13, reproduced in TRANSITIONAL JUSTICE: HOW EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES 18, 19 (N. Kritz ed., 1995).

[88] Pablo de Greiff, note 84.

[89] Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. (1991). Available at: https://digitalcommons.law.yale.edu/ylj/vol100/iss8/10.

[90] The Belfast Guidelines on Amnesty and Accountability, Principles 1 and 3.

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