August 3, 1999

The Sierra Leone Amnesty under International Law

On July 7, 1999, the Special Representative of the Secretary-General attached a disclaimer to the Sierra Leone Peace Agreement saying: "The United Nations interprets that the amnesty and pardon in article nine of this agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law."

This disclaimer is in keeping with international law, which does not accept amnesties for these crimes. Indeed, international law provides that a state has a duty to prosecute the perpetrators of serious violations of human rights law and international humanitarian law. The Security Council must, therefore, disassociate itself with the amnesty when considering the Sierra Leone Peace Agreement.

Earlier this year, the Commission on Human Rights reminded "all factions and forces in Sierra Leone that in any armed conflict, including an armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman treatment of persons taking no active part in the hostilities constitutes a grave breach of international humanitarian law, and that all countries are under the obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches and bring such persons, regardless of their nationality, before their own courts." (Resolution 1999/1, para. 2. emphasis added).

Amnesties for Grave Human Rights Crimes Violate International Law

For the last decade the United Nations, through different organs, has consistently rejected amnesty laws for serious violations of human rights.

In 1989 the General Assembly endorsed Resolution 1989/65 of the U.N. Economic and Social Council which adopted the "Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions". Principle 19.2 strongly opposes amnesty laws for these crimes: "In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions."(A/Res/44/162)

In 1992 the General Assembly, again, rejected amnesty laws in adopting the Declaration on the Protection of All Persons from Enforced Disappearance, which provides that those responsible for this crime "shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction."

The U.N. Human Rights Committee, in its General Comment 20 concerning article 7, noted "that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of the 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, States may not deprive of individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible." (10/04/92, General Comment 20 concerning article 7, replaces General Comment 7 concerning prohibition of torture and cruel treatment or punishment.) See also comments of the Committee on Peru: "The Committee is deeply concerned that the amnesty granted ... absolves from criminal responsibility and, as a consequence, from all forms of accountability, all military, police and civilian agents of the State who are accused, investigated, charged, processed or convicted for common and military crimes for acts occasioned by the 'war against terrorism' from May 1980 until June 1995...Such an amnesty prevents appropriate investigation and punishment of perpetrators of past human rights violations, undermines efforts to establish respect for human rights, contributes to an atmosphere of impunity among perpetrators of human rights violations, and constitutes a very serious impediment to efforts undertaken to consolidate democracy and promote respect for human rights and is thus in violation of article 2 of the Covenant." (CCPR/c/79/Add.67 paragraph 9).

The Committee against Torture has also rejected amnesty laws for serious human rights violations. In its 1996 annual report, it stressed the incompatibility of amnesty laws with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: "[t]he Committee considers amnesty laws in force in Senegal to be inadequate to ensure proper implementation of certain provisions of the Convention." (Annual Report of the Committee against Torture to the General Assembly, 09/07/1996, A/51/44, para. 117 .)

Mr. Louis Joinet, Special Rapporteur of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, in his final report on the Question of the impunity of perpetrators of human rights violations (civil and political) affirmed that "[a]mnesty cannot be accorded to perpetrators before the victims have obtained justice by means of an effective remedy." E/CN.4/Sub.2/1997/20, para 32. In principle 19 of the "Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity" annexed to his report, he calls for "[s]afeguard against the use of reconciliation or forgiveness to further impunity."

More recently, the Commission on Human Rights in resolution 1999/32, regarding torture and other cruel, inhuman or degrading treatment or punishment, urged "all Governments to ... abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations." It also stressed "that those who encourage, order, tolerate or perpetrate such acts (torture and other cruel, inhuman or degrading treatment) must be held responsible and severely punished." (Resolution 1999/32, o.p. 2 and 4.)

The same organ, in Resolution 1999/34, regarding impunity, recognized "that accountability of perpetrators of grave human rights violations is one of the central elements of any effective remedy for victims of human rights violations and a key factor in ensuring a fair and equitable justice system and, ultimately, reconciliation and stability within a State." (Resolution 1999/34, paragraph 6.)

States Have a Duty to Prosecute Grave Human Rights Crimes

The Security Council has, in two Presidential Statements, underlined the need to prosecute those responsible for criminal violations of human rights and humanitarian law: "The Council stresses the obligation of all States to prosecute those responsible for grave breaches of international humanitarian law." (Presidential Statement on children and armed conflict, S/PRST/1998/18 of 29 June 1998) and "The Council affirms the need to bring to justice, in an appropriate manner, individuals who incite or cause violence against civilians in situations of armed conflict or who otherwise violate international humanitarian and human rights law." (Presidential Statement on the protection of civilians in armed conflict, S/PRST/1999/6 of 12 February 1999). These Presidential Statements recognize what was previously asserted by the Security Council in Resolution 935 (S/RES/935) of 1994, "that all persons who commit or authorize the commission of serious violations of international humanitarian law are individually responsible for those violations and should be brought to justice."

Principle 18 of the previously cited "Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions" provides that "[g]overnments shall ensure that persons identified by the investigation as having participated in extra-legal, arbitrary and summary executions in any territory under their jurisdiction are brought to justice. Governments shall either bring to such persons to justice or co-operate to extradite such persons to other countries wishing to exercise jurisdiction. This principle shall apply irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed."

The International Law Commission has established in article 9 of the Draft Code of Crimes Against the Peace and Security of Mankind that "each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in articles 17(genocide), 18 (crimes against humanity), . and 20 (war crimes), irrespective of where or by whom those crimes were committed."(A/48/10, adopted by the Commission at its 48 session in 1996, Published in Yearbook of the International Law Commission 1996, Vol. II, (2).)

Finally at the regional level, the Inter-American Court of Human Rights, has decided, on more than one occasion, that a "State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation." (Inter-American Court of Human Rights, Case Velazquez Rodriguez, Judgment of July 29,1988, series c, No.4, para. 174. See also Case Neira Alegr a and others, Judgment of 19 January, 1995. Series C No. 20, para.69; Case Caballero Delgado and Santana, Judgment of December 8, 1995. Series C No. 22, para. 56, Case Blake, Preliminary Exceptions, Judgment of July 2, 1996. Series C No. 27, para. 39 and Case Castillo Paez, Judgment of November 3, 1997. Series C No. 34, para. 90.)

The European Court of Human Rights has also ruled that "the notion of an 'effective remedy' entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure." (European Court of Human Rights, Case Zeki Aksoy v. Turkey, Judgment of 18 December 1996- No. 100/1995/606/694, para. 98.)