Every month approximately, TRIAL will comment on a video concerning international justice or current news on international humanitarian law or human rights. This month's video is  on the subject of amnesties.

Amnesties in international law

In a speech given on 19 December 2006, Laurent Gbagbo, President of the Ivory Coast, proposed a five point plant aimed at bringing the crisis to an end. This plan was to lead to the signing of the Ouagadougou Political Agreement of 4 March 2007.

In point four of his plan, Laurent Gbagbo proposed the adoption of a General Amnesty Law, considering that pardon was indispensible “in order to restore a society of unity and solidarity”. According to him it was necessary to adopt an entirely new Amnesty Law, since the 2003 Amnesty Law had in effect lapsed when hostilities again broke out between the rebels and the armed forces following the refusal on the part of the rebels to lay down their arms.

The President promised to submit a draft law to the National Assembly which would apply to all persons implicated in the conflict. This new law would not apply to crimes against humanity nor to financial crimes. Gbagbo clearly stated that he desired a return to peace but not at the cost of impunity.

What is an Amnesty?

An amnesty has as its goal to put an end to proceedings being taken against any person and, whenever this is the case, to rescind any sentence already imposed. It is generally in the form of a legislative or constitutional act, but it might also be incorporated in an international treaty, a political agreement or a peace agreement (Argentina, Cambodia, Haiti, Uruguay…)

For the most part, amnesties are adopted by States in transition, as for example when trying to end an internal conflict, and are aimed at promoting national reconciliation and a return to peace.

An amnesty can be either total (as a blanket amnesty) or partial. It generally is promulgated by way of an official act, most often as a law.

In the case of an internal armed conflict, Article 6 §5 of the Second Protocol Additional to the Geneva Conventions states that “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”. However, such an amnesty should only be granted to those persons being prosecuted for the sole fact of their participation in hostilities, and not to those persons guilty of crimes punishable under international law.

What are the consequences of an amnesty on international criminal law?

The question of amnesty raises the problem of choice between peace and justice. An amnesty can indeed be accompanied by other measures aimed at finding out the truth about the conflict (for example via a “truth commission”).In this respect these mechanisms should have a legal basis which is widely accepted to avoid having perpetrators of crimes refusing to cooperate in these forums for fear of prosecution in a third country. Furthermore, an amnesty can also have the effect of pacifying the parties to the conflict and of bringing to an end the internal disagreements.

However, over the last few years international criminal law has witnessed the development of a presumption of illegality for amnesties with respect to international crimes. According to the 2001 Princeton Principles on Universal Competence, amnesties are in general incompatible with the obligation on the part of a State to prosecute perpetrators of so-called “international” crimes (Principle No 7), such as genocide, war crimes, crimes against humanity, torture and enforced disappearances. The United Nations Human Rights Committee (General Comment No.20, Rodriguez v. Uruguay 1988) and the Inter-American Court of Human Rights (Barrios Altos Case 2001) also adopted this position with regard to amnesties.

Can a person who has been granted amnesty nevertheless be prosecuted?

Amnesties, as a general rule, are national decisions. As such they are not binding on other States which are therefore free to take up judicial proceedings against perpetrators of international crimes as defined and punishable under international law, on the basis, for example, of the principle of universal jurisdiction.  Those amnesties which are governed by peace treaties between two or more countries are only binding on the States which are party to the treaty by virtue of the principle of the relativity of treaties. When international crimes are involved, amnesties, in principle, are not required to be respected by third party States.

Also, an amnesty cannot be invoked to apply the legal principle of non bis in idem by virtue of which “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” (Art.14 §7 International Covenant on Civil and Political Rights) It should be recognised that an amnesty is not the same as an acquittal. Moreover the Human Rights Committee has deemed that this principle referred to above is not an obstacle to a person being tried for the same offence in another country.

National or International Tribunals themselves have also jurisdiction to prosecute perpetrators of international crimes even in the existence of an amnesty. As stated in Article 10 of the Statute of the Special Court for Sierra Leone “An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.” In a 2004 decision, the Appeals Chamber of the Court clearly set out that the amnesty granted under the 1999 Lomé Peace Agreement did not bar prosecution of perpetrators of international crimes by other States or by other International Tribunals (decision SCSL-04-15-PT-060).

For its part, the International Criminal Court also does not recognise amnesties as being a bar to prosecution by virtue of the principle of non bis in idem. Furthermore, the Statute of the Court has a provision whereby the Court’s jurisdiction is complementary to national criminal jurisdictions in cases where the State is incapable or unwilling to prosecute perpetrators of international crimes. This being the case an amnesty can be seen as a refusal to take up proceedings and a grievance which was the subject of a national amnesty could then be brought before this Court.

What is the scope and content of the Amnesty Law adopted by the Ivory Coast? What are the crimes covered by this amnesty?

On 4 March 2007, President Laurent Gbagbo and the rebel leader Guillaume Soro concluded a peace agreement in which, in particular, they undertook to set up government of transition.

As promised in his speech in December 2006, President Gbagbo adopted on 12 April 2007 an ordinance of amnesty (in French) in which was clearly set out the substance and scope of implementation of this amnesty for the violations committed since 2000 in the conflict in the Ivory Coast. This amnesty does not apply to financial crimes nor does it apply to crimes punishable under international law.

As opposed to the Amnesty Law of 2003 which excluded “infractions constituting serious violations of Human Rights, International Humanitarian Law and infractions covered under Articles 5 and 8 of the Treaty of Rome”, the 2007 ordinance is less precise and does not explicitly indicate the crimes excluded from the scope of the amnesty. However in an interview in July 2007 with Amnesty International, President Gbagbo and his Justice Minster clearly specified that war crimes and crimes against humanity were well and truly excluded from the scope of application of this amnesty and that the victims could therefore file these complaints with the courts.

This means therefore that the possibility exists for such crimes to be tried not only before the national courts of the Ivory Coast but also before outside international jurisdictions.

To go further

Amnesty for war crimes: defining the limits of international recognition, Yasmin Naqvi, RICR, septembre 2003, Vol. 85, n°851, pp.583-625.

Provoking the dragon on the patio – Matters of transitional justice: penal repression vs. amnesties, Laura M. Olson, RICR, juin 2006, Vol. 88, n°862, pp. 275-294.

Serving the interests of justice: amnesties, truth commissions and the International criminal court, Darryl Robinson, EJIL, 2003, Vol. 14, n°3, pp. 481-505.

Amnesties in international law: the experience of the Special court for Sierra Leone, Sarah Williams, HRLR, 2005, Vol. 5, n°2, pp. 271-309.

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