II. State of the Law
In 1999 a British court stated, “The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law.”[18] That statement is even truer today with the establishment of a standing international criminal court.
Because the debate about peace and justice is occurring in the context of an evolving system of international criminal justice, some background on the state of law is necessary. States have accepted that some crimes are so heinous that they must not go unpunished. Among other objectives, prosecuting these crimes is recognized as integral to preventing future violations of international law.[19] The duty to prosecute arising from these principles is reflected in both treaty and customary international law that create an obligation to prosecute those responsible for serious international crimes, such as genocide, crimes against humanity, and war crimes. The use of universal jurisdiction and the establishment of international courts and tribunals demonstrate the commitment to this principle in practice. Amnesties for these crimes are increasingly seen as contrary to international law.
A. The obligation in international law to prosecute serious international crimes
As a matter of both treaty and customary international law, there is a duty to prosecute serious international crimes or to extradite to a jurisdiction that will prosecute.[20]
The obligation to prosecute some crimes derives from international conventions.[21] The Convention on the Prevention and Punishment of the Crime of Genocide creates a legal obligation on states parties to take steps to provide effective penalties for those responsible for genocide.[22] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also binds states to prosecute violators.[23] The Geneva Conventions of 1949, applicable during armed conflict, establish a duty to provide “effective penal sanctions for persons committing, or ordering to be committed ... grave breaches of the Conventions.”[24] Grave breaches include the following when committed against persons who are not or are no longer taking part in the hostilities: “willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health.”[25]
The obligation to penalize crimes representing violations of the laws of war was initially considered limited to grave breaches of the Geneva Conventions, which are applicable only during international armed conflicts. However, the subject matter jurisdiction of the International Criminal Tribunal for Rwanda (ICTR) (which includes Common Article 3 of the four Geneva Conventions and its Second Additional Protocol) and decisions by the International Criminal Tribunal for the former Yugoslavia indicate acceptance of the extension of the prohibition to non-international armed conflicts (civil wars).[26]
This broader applicability of a duty to prosecute war crimes committed during non-international armed conflicts was recognized by the International Committee of the Red Cross (ICRC) in its 2005 study of customary international humanitarian law.[27] The UN Commission on Human Rights (the predecessor to the current Human Rights Council) adopted several resolutions calling for the investigation and prosecution of violations of international humanitarian law in the context of non-international armed conflicts in Burundi, Chechnya, Rwanda, Sierra Leone, Sudan, and the former Yugoslavia.[28]
Acceptance of the duty to prosecute as a matter of customary international law is evident in a number of places. In 1946 the UN General Assembly during its first session urged that all states, including those not members of the United Nations, arrest persons responsible for war crimes during the Second World War and return them for prosecution in the state where the crimes were committed.[29] A number of General Assembly resolutions since have reiterated the obligation of states to ensure the investigation and prosecution of alleged war crimes and crimes against humanity.[30]
The Rome Statute establishing the International Criminal Court is an important indicator that the obligation to prosecute serious violations of international law is supported by customary law. The obligation to prosecute is expressed in the statute’s preamble:
Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation...
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes ... .[31]
The obligation to prosecute can also be seen in article 17 of the Rome Statute. Under the principle of complementarity, national courts not only have the first opportunity to prosecute international crimes, but an obligation to prosecute them. In particular, “‘the point to be emphasized is that the competence to bring the perpetrator(s) of crimes within the jurisdiction of the ICC to justice remains the prime responsibility of national States[;]’” provided that the alleged human rights violator is not surrendered to the ICC, a duty exists for states subject to the jurisdiction of the ICC to prosecute them in domestic courts.[32] That 109 countries to date have ratified the Rome Statute manifesting an intent to enact domestic legislation to punish these crimes domestically or to submit the suspect to ICC prosecution is strong evidence of the widespread recognition of the duty to prosecute.
The UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity[33]also points to the emerging trend toward requiring prosecution of the most serious crimes. The principles, best practices endorsed by the Office of the United Nations High Commissioner for Human Rights (OHCHR), are intended to serve as guidelines to assist states in developing measures to combat impunity for human rights violations.[34] The principles indicate that states have a duty to investigate “serious crimes under international law” and to take measures to ensure that those suspected of criminal responsibility “are prosecuted, tried and duly punished.” Crimes falling into this category include violations of the Geneva Conventions, genocide, crimes against humanity, and other violations of international human rights that are crimes under international law or which international law requires states to penalize, such as torture, enforced disappearances, extrajudicial execution, and slavery.
The duty to investigate and prosecute these crimes has also been recognized in international law at the regional level. The Inter-American Court of Human Rights has found that a state must “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.”[35]
The European Court of Human Rights has similarly ruled that in cases of serious human rights violations, an effective remedy for victims may require states to carry out “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.”[36]
In recent years, states have been more willing to put the obligation to prosecute into practice. “Universal jurisdiction” refers to the competence of a national court to try a person suspected of a serious international crime—such as genocide, crimes against humanity, war crimes, or torture—even if neither the suspect nor the victims are nationals of the country where the court is located and the crime took place outside of that country. Human Rights Watch has documented that since 2000 there has been “a steady rise in the number of cases prosecuted under universal jurisdiction laws in Western Europe, evidencing a heightened willingness among certain European states to utilize universal jurisdiction.”[37] States may have been further motivated to use universal jurisdiction in order to avoid becoming a safe haven for war criminals not likely to be prosecuted by the ICTY or ICTR. (See also Chapter VII.C, for the impact of universal jurisdiction on developments in Chile and Argentina.)
B. No amnesty for the most serious crimes
The trend in international law is that state amnesty provisions must be considered void if they attempt to amnesty the most serious crimes because such provisions are contrary to states’ obligations to combat impunity for serious human rights violations.[38] Exempting the perpetrators of the worst crimes from prosecution and allowing these crimes to remain unpunished is increasingly viewed as unacceptable. This is an important reference point for the place of justice alongside other objectives when seeking to end conflicts.
A number of countries including the Democratic Republic of Congo, Côte d’Ivoire, Croatia, Ethiopia, and Venezuela have adopted legislation or constitutions that prohibit amnesties for the most serious crimes or that contain explicit exceptions to general amnesties for crimes under international law.[39] And related to the obligation under the universal/extraterritorial jurisdiction principle to prosecute serious international crimes is the rejection of state amnesties in the courts of other states. As the Sierra Leone Special Court held:
Where jurisdiction is universal, a State cannot deprive another State of its jurisdiction to prosecute the offender by the grant of amnesty. It is for this reason unrealistic to regard as universally effective the grant of amnesty by a State in regard to grave international crimes in which there exists universal jurisdiction. A State cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.[40]
The ICTY has also indicated that amnesties for internationally recognized crimes would not be accorded international legal recognition.[41]
United Nations’ bodies have repeatedly reflected this position against amnesties regarding the most serious crimes. For example, regarding the 1999 Lomé Peace Accord, despite the opposition of Sierra Leone President Ahmad Tejan Kabbah, the UN special representative attached a reservation to the agreement stating, “The United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”[42] The UN secretary-general also issued a statement that addressed the terms of the Lomé Peace Accord: “Some of the terms under which this peace has been obtained, in particular the provisions on amnesty, are difficult to reconcile with the goal of ending the culture of impunity ... .”[43]
Numerous additional documents and bodies also highlight the developing legal trend opposing amnesty for genocide, crimes against humanity, war crimes, and other violations of international humanitarian law.[44] The Inter-American Court of Human Rights has held that Peru’s blanket amnesty law, which discouraged investigations and denied any remedies to victims, was invalid.[45] The Court found 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 ... .”[46]
The Inter-American Commission on Human Rights has also found that amnesty laws in Chile, Argentina, and El Salvador do not satisfy a state’s duty to prosecute and are incompatible with the American Convention.[47]
[18]United Kingdom House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division),March 24, 1999 (citing Arthur Watts, “The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers,” Recueil des cours de l’Academie de droit international de La Haye, 1994, vol. 247, pp. 82-84).
[19]See UN Commission on Human Rights, “Impunity,” Resolution 2004/72, E/CN.4/RES/2004/72 (“Reaffirming the duty of all States to put an end to impunity and to prosecute, in accordance with their obligations under international law, those responsible for all violations of human rights and international humanitarian law that constitute crimes … Convinced that impunity for violations of human rights and international humanitarian law that constitute crimes encourages such violations and is a fundamental obstacle to the observance and full implementation of human rights and international humanitarian law … .”). See also Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, adopted December 3, 1973, G.A. Res. 3074, 28 UN GAOR Supp. (No.30) at 78, U.N. Doc. A/9030/(1973)(“War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.”).
[20]See Human Rights Watch, The Meaning of “the Interests of Justice” in Article 53 of the Rome Statute, June 1, 2005, http://www.hrw.org/node/83018, pp. 9-11.
[21]The obligation to “extradite or prosecute” (aut dedere aut judicare), also referred to as universal jurisdiction, can be found in approximately 70 international criminal law conventions. Michael J. Kelly, “Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecuting Foreign Terrorists – Passage of Aut Dedere Aut Judicare into Customary Law & Refusal to Extradite Based on the Death Penalty,” Arizona Journal of International & Comparative Law, vol. 20 (2003), p. 497.
[22]The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) states, “Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals ... . The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.” Genocide Convention, adopted by Resolution 260(III)A of the United Nations General Assembly, December 9, 1948, G.A. Res. 260 (III) A, entered into force January 12, 1951, arts. 4-5.
[23]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.
[24]Article 146 of the Geneva Convention Relative to the Protection of Civilian Persons in Times of War (Geneva IV) requires that “[t]he High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.” Geneva IV, adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950, art. 146.
[25]Ibid., art. 147.
[26]Prosecutor v. Zejnil Delalic, Zdavko Mucic, Hazim Delic and Esad Landžo (Elebici case), ICTY, Case No. IT-96-21-A, Judgment (Appeals Chamber), February 20, 2001, paras. 163-73; Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), October 2, 1995, para. 143. This view was reiterated by the UN Commission on Human Rights (CHR) in 1999 when it reminded all factions in the Sierra Leone conflict “that all countries are under the obligation to search for persons alleged to have committed or to have ordered committed, such grave breaches and bring such persons, regardless of their nationality, before their own courts.” CHR, “Situation of human rights in Sierra Leone,” Resolution 1999/1, E.CN.4.RES.1999.1, para. 2 (emphasis added).
[27] See Rule 158 in International Committee of the Red Cross, Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), p. 607.
[28]See, for example, UN Commission on Human Rights, “Situation of human rights in Rwanda,” Resolution 2000/21, E/CN.4/RES/2000/21; CHR, “Situation of human rights in the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Croatia and Bosnia and Herzegovina,” Resolution 2000/26, E/CN.4/RES/2000/26; CHR, “Situation of human rights in the Sudan,” Resolution 2001/18, E/CN.4/RES/2001/18; CHR, “Situation of human rights in Sierra Leone,” Resolution 2001/20, E/CN.4/RES/2001/20; CHR, “Situation of human rights in Burundi,” Resolution 2001/21, E/CN.4/RES/2001/21; and CHR, “Situation in the Republic of Chechnya of the Russian Federation,” Resolution 2001/24, E/CN.4/RES/2001/24. See also Andrew Clapham, “Human rights obligations of non-state actors in conflict situations,” International Review of the Red Cross, vol. 88/863, September 2006.
[29]Extradition and Punishment of War Criminals, adopted February 13, 1946, G.A. Res. 3(1), 1 U.N. GAOR (1st sess.) at 9-10, U.N. Doc. A/RES/3(I) (1946).
[30]See Question of the Punishment of War Criminals and of Persons who have Committed Crimes against Humanity (Question of Punishment), adopted December 15, 1969, G.A. Res. 2583(XXIV), 24 U.N. GAOR Supp. (No. 30) at 58, U.N. Doc. A/RES/2583(XXIV) (1969); Question of Punishment, adopted December 15, 1970, G.A. Res. 2712(XXV), 25 U.N. GAOR Supp. (No. 28) at 78-79, U.N. Doc. A/RES/2712(XXV) (1970); Question of Punishment, adopted December 18, 1971, G.A. Res. 2840(XXVI), 26 U.N. GAOR Supp. (No. 29) at 88, U.N. Doc. A/RES/2840(XXVI) (1971); and Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, adopted December 3, 1973, G.A. Res. 3074(XXVIII), 28 U.N. GAOR Supp. (No. 30) at 78-79, U.N. Doc. A/RES/3074(XXVIII) (1973).
[31] Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, preamble.
[32]Daniel W. Schwartz, “Rectifying Twenty-Five Years of Material Breach: Argentina and the Legacy of the ‘Dirty War’ in International Law,” Emory International Law Review, vol. 18 (2004), p. 343 (citing Johan van der Vyver, “The ICC,” ch.10, unpublished document on file with Schwartz, 2000).
[33]UN Commission on Human Rights, Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1, February 8, 2005, http://www.unhcr.org/refworld/docid/42d66e780.html (accessed June 1, 2009).
[34]Ibid., p. 5.
[35]Inter-American Court, Velásquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R., (Ser. C) No. 4 (1988), para. 174.
[36] ECHR, Aksoy v. Turkey, Judgment of 18 December 1996, No. 100/1995/606/694, para. 98. See also UN Commission on Human Rights, Independent Study on best practices, including recommendations, to assist States in strengthening their domestic capacity to combat all aspects of impunity, Diane Orentlicher, E/CN.4/2004/88, February 27, 2004, http://www.unhchr.ch/pdf/chr60/88AV.pdf (accessed June 2, 2009), paras. 24-56.
[37] See Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, vol. 18, no. 5(D), June 2006, http://www.hrw.org/sites/default/files/reports/ij0606web.pdf, pp. 2-3. However, there has also been some backtracking, with Belgium, Germany, and Spain seeking to place more restrictions on the use of universal jurisdiction.
[38]See Elizabeth G. Salmón, “Reflections on international humanitarian law and transitional justice: lessons to be learnt from the Latin American experience,” International Review of the Red Cross, vol. 88/862, June 2006, pp. 332-333.
[39]Democratic Republic of Congo – Décret-loi N°03-001 du 15 avril 2003 portant amnistie pour faits de guerre, infractions politiques et d'opinion,Journal Officiel de la République Démocratique du Congo,Numéro Spécial, http://www.unhcr.org/ refworld/country,,NATLEGBOD,,COD,,47305aae2,0.html (accessed June 2009), art. 1 (“pending adoption of an amnesty law, a temporary amnesty for acts of war and political offenses would apply for the period between 2 August 1998 and 4 April 2003, with the exception of war crimes, genocide and crimes against humanity.”);Côte d’Ivoire − Ordinance No. 2007-457 of 12 April 2007 enacting the Amnesty Law, Ordonnance N° 2007 457 du 12 Avril 2007 portant amnestie, http://www.cotedivoirepr.ci/ ?action=show_page&id_page=562 (accessed June 2009), art. 3(b) (providing a broad amnesty that explicitly omits crimes which under the Ivorian penal code qualify as crimes and offenses against people’s rights, crimes and offenses against persons, crimes and offenses against property other than those listed in Articles 1 and 2: “infractions qualifiées par le code pénal ivoirien de crimes et délits contre le droit des gens, crimes et délits contre les personnes, crimes et délits contre les biens autres que celles énumérées aux articles 1er et 2”); Croatia −Law on General Amnesty, HRV-110, 1996, http://www.unhcr.org/refworld/publisher,NATLEGBOD,,HRV,3ae6b4de2c,0.html (accessed June 2999), art. 3, and see also UN Human Rights Committee, “Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, CCPR/CO/71/HRV, April 30, 2001, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.71.HRV.En?Opendocument (accessed June 2, 2009), para. 11; Ethiopia − Constitution of The Federal Democratic Republic of Ethiopia, 1994, http://www.ethiopiafirst.com/Election2008/Constitution.pdf (accessed June 2009), art. 28(1) (“Criminal liability of persons who commit crimes against humanity … shall not be barred by statute of limitation. Such offenses may not be commuted by amnesty or pardon of the legislature or any other state organ.”); Venezuela − Constitution of the Bolivarian Republic of Venezuela, 1999, http://en.wikisource.org/wiki/Constitution_of_Venezuela (accessed June 2009), art. 29 (“The State is obliged to investigate and legally punish offenses against human rights committed by its authorities. Actions to punish the offense of violating humanity rights, serious violations of human rights and war crimes shall not be subject to statute of limitation. Human rights violations and the offense of violating humanity rights shall be investigated and adjudicated by the courts of ordinary competence. These offenses are excluded from any benefit that might render the offenders immune from punishment, including pardons and amnesty.”). See also Amnesty International, “Special Court for Sierra Leone: denial of right to appeal and prohibition of amnesties for crimes under international law,” October 31, 2003, http://www.amnestyusa.org/document.php?id=6463542D5D7BFD6980256DD000689A4C&lang=e (accessed June 2, 2009).
[40]Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Special Court for Sierra Leone, Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, March 13, 2004, para. 67 (emphasis added). Also, “the amnesty granted by Sierra Leone cannot cover crimes under international law that are the subject of universal jurisdiction” because “it stands to reason that a state cannot sweep such crimes into oblivion and forgetfulness which other states have jurisdiction to prosecute by reason of the fact that the obligation to protect human dignity is a peremptory norm and has assumed the nature of obligation erga omnes.” Ibid., para. 71.
[41]Prosecutor v. Anto Furundzija, ICTY, Case No. IT-95-17/1-T, Judgment, December 10, 1998, para. 155.
[42] William A. Schabas, “Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone,” U.C. Davis Journal of International Law & Policy, vol. 11 (2004), pp. 148-49 (emphasis added).
[43]Ibid., p. 149.
[44]For example, the “Vienna Declaration and Programme of Action” reads, “States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law.” World Conference on Human Rights, A/CONF.157/23, July 12, 1993, para. 60. In October 2000, the UN secretary-general reported to the Security Council that the United Nations has consistently maintained the position that “amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.” Carsten Stahn, “Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor,” American Journal of International Law, vol. 95 (2001), p. 955 (citing UN Security Council, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915, October 4, 2000, para. 22). The Report of the Secretary-General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies declares that states should “[r]eject any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes, [and] ensure that no such amnesty previously granted is a bar to prosecution before any United Nations-created or assisted court.” UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, S/2004/616, August 23, 2004, p. 21. See alsoCHR, Independent Study on Best Practices, Orentlicher, E/CN.4/2004/88, February 27, 2004, paras. 27-35.
[45]Inter-American Court, Barrios Altos Case, Judgment of March 14, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 75 (2001), paras. 41-44.
[46] Ibid., para 41.
[47]Inter-American Court, Garay Hermosilla Case, Case 10.843, Report No. 36/96, Inter-Am.Ct.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997), October 15, 1996, http://www.unhcr.org/refworld/docid/3ae6b71a4.html (accessed June 18, 2009); Inter-American Court, Consuelo Herrara Cases, Case Nos. 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Report No. 28/92, Inter-Am.C.H.R., OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), October 2, 1992, http://www.unhcr.org/refworld/docid/3ae6b6d434.html (accessed June 18, 2009).