Are Amnesties For

Crimes Against
Humanity
Permissible Under
International Law?
Module 6 Assignment

STUDENT NUMBER 10675664

5/30/2010
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DATE : _____30 May 2010________

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 This essay will aim to answer the question in first defining the terms amnesty and crimes
against humanity. It will then examine amnesties granted under national laws and finally at the
International Criminal Court as the main body that is mandated to prosecute crimes against
humanity. By the end of this piece, it should be clear that amnesties granted for crimes against
humanity are not permissible under international law.

1. DEFINITIONS

a) Amnesty

Amnesty according to the Black’s Law Dictionary is ‘a sovereign act of forgiveness of

past acts, granted by a government by all persons (or to a certain class of persons) who have
been guilty of crime or derelict...when it is granted, both the crime and punishment are
abrogated. ‘1

Amnesties have been used to end wars or conflict. Amnesty can take two forms. Firstly,
when a government gives immunity to all those involved in a conflict for all wrongful acts
committed during the conflict. Secondly, amnesty can be limited to certain wrongful acts or
certain classes of offenders. Both these forms of amnesties can be conditional or unconditional.2

The main objectives of amnesty are to end an ongoing conflict as soon as possible
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(peace) and also for reconciliation and social harmony in a society Article 6 (5) of Additional
Protocol 1 of the Geneva Conventions encourages states to grant the ‘broadest’ possible
amnesties to end hostilities in a non international armed conflict. The International Committee
on the Red Cross further sheds light in its commentary to this in Additional protocol II by
explaining that paragraph 5 is meant to encourage reconciliation which can contribute to re
establishing the normal relations in a country coming from conflict.4 Amnesty clauses can be
granted in national legislation as well as in peace treaties. Examples of this are Uganda’s
Amnesty Act of 2000 and the amnesty clause in the Lome Declaration that was signed to end
hostilities in Sierra Leone. 5

1
H.C. Black, Black’s Law dictionary, 1992, p 82 – 83.
2
F.Z. Ntoubandi, Amnesty for Crimes against Humanity under International Law, p 13.
3
N 2 above p 14.
4
N 3 above.
5
Roderick O’Brien, (2005) Amnesty and International Law, Nordic Journal of International Law 47, p 267
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 b) Crimes against humanity

Crimes against humanity are defined by the Rome statute of the International Criminal
Court under Article 7. They are defined as the following acts that are committed as part of a
systematic attack directed against any civilian population with knowledge of the attack. The acts
include murder, extermination, enslavement, deportation or forcible transfer of population,
imprisonment or other severe deprivation of physical liberty, torture, rape or sexual violence,
apartheid, persecution against an identifiable group. The attacks against the civilian population
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must be multiple and should be for the furtherance of state or particular group’s policy. Crimes
against humanity are also jus cogens meaning that there can be no derogation by a state when
it comes to dealing with perpetrators of these crimes. 7

2. AMNESTIES GRANTED UNDER NATIONAL LAWS

States by their nature enact laws and legislation which will guide both the citizens and
the government. This is a sign of state sovereignty. States have been granting amnesty to
perpetrators for a very long time. Since the mid 1970s, at least 14 states on four continents
have declared amnesty, or enacted amnesty laws immunising past regimes from accountability
and liability. 8

As mentioned previously, the Lome Declaration gave amnesties to the parties involved
in the conflict in Sierra Leone. The special court for Sierra Leone under its founding statute in
Article 10 - rejects amnesty for crimes against international law. This was applied despite the
amnesties granted in the declaration in the cases of Prosecutor v Kallon and Prosecutor v
Kamara. 9

In the ICTY- Prosecutor v Furunidzija case, the court held that torture is a jus cogens
crime and therefore amnesties were not permissible to bar prosecutions under any

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Article 7 Rome Statute of the International Criminal Court 2002. Please see the statute for clarifications on the way
the acts in this article are meant to be interpreted.
7
R v Bow street Metropolitan Stipendary Magistrate and others ex parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827 p
841.
8
Burke-White, W. (2001) ‘Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty
Legislation’ in Harvard International Law Journal, 42, p. 467.
9
Roderick O’Brien, (2005) Amnesty and International Law, Nordic Journal of International Law 47, p 267.
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circumstances at the international level or the local level. The Pinochet case is also a good
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example that that national law cannot be used to escape international obligations.
Countries where the amnesty laws were not granted but the perpetrators are within their
borders have circumvented the notion of amnesties. This has been done by a principle known
as universal jurisdiction. ‘This mechanism enables states to exercise criminal jurisdiction over a
criminal act even if there is no connection between the acts in question and the sates exercising
jurisdiction’. This is because some crimes are so heinous that they affect the international
community and therefore a state is permitted to prosecute this crime on behalf of the
International community. 12

This was successfully carried out by Mexico who extradited Argentine ex-navy officer
Ricardo Cavallo to Spain, where a court charged him with genocide and terrorism in June 2003
for crimes committed in Argentina between 1976 and 1983. 13

In the Inter American Court of human rights case Garay Hermosilla et al. v. Chile, it was
held that Chile had acted unconstitutionally in failing to provide the families of the 70 people who
had ‘disappeared’ at the hands of the state during the dictatorship rule in the country. Chile
violated Article 1 and 2 of the Inter American Convention on Human rights as well as other
provisions within the Inter American system which Chile was a party to by granting amnesties. 14

To curb against potential abuse of universal jurisdiction, The Princeton Principles were
formulated. These 14 principles define as well as when and under which conditions universal
jurisdiction can be invoked by a state. The principles also define what crimes are applicable to
universal jurisdiction, procedures of application, ways to circumvent national laws that do not
allow national legislation amongst others. These principles are used by states to invoke
universal jurisdiction and how to guide them in applying them.15

10
N 9 above p 265.
11
Andrea O’Shea (2000), Pinochet and beyond; The International Implications of amnesty, South African Journal of
human rights, 6, p 645.
12
Gabriel Bottini (2003-2004) universal jurisdiction after the international criminal court, New York University journal
of law and politics 36, p 510- 511.
13
[Link] last accessed on 29 May 2010.
14
Case 10.843, Report No. 36/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997).
15
Princeton Principles [Link] last accessed on 29 May 2010

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 South Africa is one of the few countries which have been cited as using amnesty laws
positively to achieve peace through the Truth and Reconciliation Commission despite dissent
from quarters like AZAPO. This was an anti- apartheid movement challenged the granting of
amnesties but with no success.16

3. AMNESTIES AND THE INTERNATIONAL CRIMINAL COURT

One of the main objectives of the ICC is to end impunity in regards to serious human
rights violations as outlined in the Rome statute. Though the ICC does not expressly convey
that amnesties are not permissible, international law obligations ensure that the ICC can never
17
permit amnesties to enable them to not prosecute perpetrators. Article 21 of the Rome statute
dictates that the court shall apply international law as well as established laws of international
armed conflict. 18

Nothing in the ICC apart from the Article 17 (b) which gives the prosecutor the power to
not prosecute a case in the interest of justice which would include an alternative process going
on. For example if there is a truth and reconciliation commission but this still does not stop the
prosecutor from deciding to prosecute. The Prosecutor under Article 53 (1) (c) can also decide
which cases to investigate. This could be implied to mean that the Prosecutor could decline to
investigate a case where a genuine amnesty process is ongoing which will result in peace and
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reconciliation. This is an implication that the Prosecutor has the discretion to decide whether
to accept the amnesty or not.

Though this is the case, from the spirit of the Rome statute, amnesties are not
permissible. This is clearly seen in the speeches during the UN Conference on establishment of
the International Criminal Court which clearly reiterate the importance of prosecuting
perpetrators of international crimes including crimes against humanity. 20
16
John Dugard (1999) Dealing with crimes of a past regime: is amnesty still and option? , Lieden International
Journal of International law 12, p 1012.
17
Claudia Angaimer (2004), The ICC and amnesty: can the ICC, can the court accommodate a model of restorative
justice? Eyes on the ICC, 1, p 138.
18
Article 21 Rome Statute 2002.
19
N 9 above p 271.
20
Statement by Ambassador Fode M Dabor, leader of, Sierra Leone delegation at the UN Conference on the
establishment of the ICC 17 July 1998, [Link] last accessed 29 May 2010,
Statement by the United Nations Secretary General Kofi Annan at the ceremony held at Campidoglio celebrating the
adoption of the statute of the International Criminal Court 17 July 1998, [Link]
last accessed on 29 May 2010.
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 The second principle that can be applied is that from the preamble of the ICC Statute,
there is a duty for the Court to prosecute. This is because the crimes are so grave that
amnesties cannot be reconciled. This is further reiterated in the UN report of Human rights
questions: implementation of human rights instruments Question of torture and other cruel,
inhuman or degrading treatment or punishment. This report reiterates that prohibiting amnesty
has become an international norm. It also ties in granting of amnesty as impunity which is a
violation of international law. 21

4. CONCLUSION
It is clear that under International law, amnesties under crimes against humanity are not
permissible. This applies even when amnesties are granted by state. The current jurisprudence
proves that the international community is changing and will not permit amnesty to be used to
protect perpetrators from prosecution especially with regards to crimes against humanity. States
are also slowly repealing amnesty laws that were enacted by previous regimes to grant
amnesty. A good example of this is Argentina. This is an illustration that the international
community has no room for amnesties for crimes covered by the ICC Statute as this would
encourage impunity and this may lead to further widespread violations in the world.

WORD COUNT 1,788 (including foot notes)

21
UN report of Human rights questions: implementation of human rights instruments Question of torture and other
cruel, inhuman or degrading treatment or punishment, [Link]
Last accessed on 29 May 2010.
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