1

Ch. 2 The Amnesty Contioveisy in

Inteinational Law


!"#$%&'(#)%"

Amnesty policies offeieu by states as components of peacemaking oi of longei-
teim tiansitional piocesses aie suiely among the most contioveisial aspects of
contempoiaiy tiansitional justice. The offei of immunity fiom ciiminal piosecution to
peipetiatois of some of the most heinous of ciimes is unueniably at ouus with the
uemanu foi ietiibution, an affiont to victims anu theii suivivois, anu potentially a blow
to the longei-teim piospects foi iule-of-law institutions in iecoveiing states. Anu yet
amnesties have also unueniably been impoitant components of negotiations that have
biought piotiacteu conflicts to iesolution oi iestoieu uemociacy aftei peiious of
authoiitaiian iule.
Aiguments foi anu against uomestic amnesties foi seiious ciimes unuei
inteinational law aie many anu complex, in keeping with the iemaikable numbei anu
uiveisity of amnesty policies anu measuies that have emeigeu in tiansitional contexts
aiounu the woilu ovei the past seveial uecaues. Bowevei, since the of the 199us at
least, an anti-impunity position has taken holu acioss a wiue spectium of inteinational
legal anu political bouies such as the 0niteu Nations secietaiiat, as well as inteinational
Nu0s anu acauemics. Accoiuing to this position, inuiviuual ciiminal accountability foi
seiious ciimes unuei inteinational law is a coineistone of a global human iights
community. Bomestic amnesties that waive piosecution of inuiviuuals foi uesignateu
acts aie thus at ouus with the basic values of such a community, anu foi this ieason
shoulu be inteipieteu as contiaiy to states' commitments unuei inteinational law. The
position, in othei woius, entails the pioject of iemoving amnesties foi such ciimes fiom
the political anu legal toolkits of tiansitional states.
The anti-impunity position has veiy seiious implications foi the conuuct of
inteinational peace negotiations, foi the compoitment of iegional anu inteinational


2

couits, anu foi the juuicial inteipietation of the obligations of states. In this chaptei, we
examine the specifically legal claims on which the anti-amnesty aspect of the position
iests. Specifically, we ieview some of the most ielevant aspects of public inteinational
law, both tieaty-baseu anu customaiy, as a way of assessing the stiength anu cogency of
the claim that amnesties violate states' inteinational legal obligations.
This chaptei uoes not offei a uefence of amnesties, whethei on piincipleu oi on
piagmatic giounus. We iegaiu amnesties as potentially seiious failuies of justice, whose
legitimacy anu piospects foi contiibuting to a moie just anu lasting peace iest upon a
complex anu contextual evaluation of a myiiau of factois that will vaiy fiom place to
place. We uo suggest, howevei, that the anti-impunity asseition that such amnesties aie
in eveiy instance contiaiy to inteinational law, iests on legal aiguments consiueiably
weakei than the auvocates of the position acknowleuge.
By ieviewing the most significant souices of public inteinational law, ielevant
texts anu iulings on the peimissibility of uomestic amnesties foi inteinational ciimes,
we aigue that tieaty law has little uiiectly to say about the peimissibility of amnesties,
though uoes offei numeious aiguments foi a state's uuty to piosecute anu punish, fiom
which the incompatibility of amnesties can be, anu has fiequently been, infeiieu.
Customaiy inteinational law has also been appealeu to as evincing a 'ciystallizing' noim
against impunity, fiom which a coiiesponuing ciystallizing anti-amnesty noim has once
again been infeiieu. Bowevei, this infeience is seiiously compiomiseu by the
inconsistency of establisheu state piactice iegaiuing the use of amnesty in the context
of tiansitional justice schemes, a necessaiy conuition foi the "ciystallization thesis" to
be convincing. Finally iecent iulings of inteinational ciiminal tiibunals anu the
compoitment of the Inteinational Ciiminal Couit (ICC) offei some inteiesting though
not entiiely consistent subsiuiaiy souices of inteinational ciiminal law iegaiuing
amnesties. In the case of the ICC in paiticulai, seiious questions peisist iegaiuing what
soits of post-conflict amnesty aiiangements woulu be acceptable.
By the enu of the uiscussion, it ought to have become cleai why the uebate on
amnesty continues to be contioveisial. The subject is one on which it always will be
uifficult to iemain neutial - especially when, as is so often the case, the inteiests of
peace anu justice must compete foi piioiity. Piecisely foi that ieason, a cential goal of
this chaptei is to offei a ciitical ieconstiuction of the ielevant inteinational legal


S

souices, in oiuei to chait moie cleaily just what states' obligations in iespect to
amnesties actually amount to.

+$,-#),. -"& /%"0,"#)%".
Inteinational tieaties woulu be the most obvious fiist place to look foi a
uefinitive statement of the legality of uomestic amnesties foi inteinational ciimes. Yet in
this aiea, what stanus out the most is the "#$%&'% of an explicit piohibition of amnesty
in any human iights, humanitaiian, oi ciiminal tieaty. Theie is not a single tieaty that,
in an explicit way, even uiscouiages any kinu of amnesty. This iemaikable fact about
amnesties anu inteinational law shoulu cause us to question any thesis about
wiuespieau state antagonism to amnesties foi human iights ciimes.
Regaiuing this lacuna fiom the peispective of inteinational ielations iathei than
inteinational law makes it less mysteiious. In the uiplomatic iealm, states aie jealous of
theii soveieignty. When negotiating the teims of inteinational tieaties, states have
unsuipiisingly been extiemely ieluctant to binu themselves to tieaties that explicitly
iemove what is unueistoou as a poweiful tool in any uiplomatic toolkit. Fuithei, we
shoulu be caieful to unueistanu amnesties not just as piagmatic tools foi tough
negotiations with peipetiatois, but also as poweiful anu moie geneial expiessions of
state soveieignty, useful both in foieign anu uomestic policy spheies. Amnesties foi any
ciime unuei uomestic law, let alone those ciimes whose giavity iises to meet the
uefinition of an inteinational ciime, aie acts wheieby the noimal opeiation of a
uomestic law system is suspenueu. The powei to uictate the noimal anu extiaoiuinaiy
function of uomestic law - as the ueiman legal theoiist Cail Schmitt woulu put it, the
powei to ueclaie the exception to the law - is an integial anu highly symbolically visible
uimension of state soveieignty.
Thus both on piagmatic anu what we can call symbolic giounus, states have
shown extieme ieluctance to commit to tieaty language that explicitly uisavows the
powei to giant amnesties, anu this may be paiticulaily apposite foi post-conflict
uemociatizing states, foi whom the expiessive uimension of soveieignty, both
inteinally anu exteinally, may well be veiy significant.
The silence of inteinational tieaty law on the veiy notion of amnesties uoes have
one exception, though it is an unexpecteu one. The 1977 Piotocol II to the ueneva
Conventions, which goveins the piotection of victims in non-inteinational conflicts,


4

pioviues that "|ajt the enu of hostilities, the authoiities in powei shall enueavoui to
giant the bioauest possible amnesty to peisons who have paiticipateu in the aimeu
conflict, oi those uepiiveu of theii libeity foi ieasons ielateu to the aimeu conflict,
whethei they aie inteineu oi uetaineu."
1
The majoiity of national couits that have
applieu Aiticle6(S) have useu it as a legal basis to valiuate oi upholu amnesties coveiing
seiious ciimes, incluuing wai ciimes that woulu violate Piotocol II to the ueneva
Conventions.1S9
Peihaps the most well-known analysis to uate is the juugment of the South
Afiican Constitutional Couit in the AZAP0 case, in which it was helu that the amnesty
piovisions of the 199S Piomotion of 0nity anu Reconciliation Act (which establisheu
the countiy's TRC) weie consistent with both the national constitution anu
inteinational law.
2
14uThough its analysis of Aiticle 6(S) is maue (& )#(*%+ (i.e., as a
juuicial asiue), the Couit offeis a compelling explanation of why the aiticle appeais
specifically in Piotocol II anu not in humanitaiian law tieaties that concein
inteinational aimeu conflicts: "It is one thing to allow the officeis of a hostile powei
which has invaueu a foieign state to iemain unpunisheu foi gioss violations of human
iights peipetiateu against otheis uuiing the couise of such conflict. It is anothei thing
to compel such punishment in ciicumstances wheie such violations have substantially
occuiieu in consequence of conflict between uiffeient foimations within the same state
in iespect of the peimissible political uiiection which that state shoulu take with iegaiu
to the stiuctuies of the state anu the paiameteis of its political policies anu wheie it
becomes necessaiy aftei the cessation of such conflict foi the society tiaumatiseu by
such a conflict to ieconstiuct itself. That is a uifficult exeicise which the nation within
such a state has to peifoim by having iegaiu to its own peculiai histoiy, its
complexities, even its contiauictions anu its emotional anu institutional tiauitions. What
iole punishment shoulu play in iespect of eistwhile acts of ciiminality in such a
situation is pait of the complexity."
S
141
Bespite the (neai) absence of any explicit iefeience to amnesties in the language
of inteinational tieaties, many couits anu legal scholais have neveitheless aigueu that

1
Piotocol Auuitional to the ueneva Conventions of 12 August 1949, anu ielating to the Piotection of
victims of Non-Inteinational Aimeu Conflicts (Piotocol II), 8 }une 1977, ait. 6(S).
2 ,-"&("& .%)/0%$ 1+2"&(-"*()& 3,4,.15 "&6 1*7%+$ 89 .+%$(6%&* ): *7% ;%/<#0(' ): =)<*7
,:+('" "&6 1*7%+$, Constitutional Couit of South Afiica, Case No. CCT1796 (}uly 2S,
1996).
S
Ibiu., at paia. S1.


S

inteinational tieaty obligations entail states' uuties to piosecute anu punish the
piohibiteu acts of genociue anu ciimes against humanity.
4
This of couise establishes an
infeience that amnesties, piecisely insofai as they may bai piosecutions foi such acts,
aie contiaiy to oi in violation of a state's legal tieaty obligations, anu in this sense,
ceitainly, contiaiy to inteinational law.
S

This infeience fiom inteinational tieaties can be uiawn in seveial ways, all of
which involve tieaty souices implicitly ielateu to amnesty: 1) In some cases,
inteinational tieaties can be inteipieteu to establish a binuing legal obligation on states
to /+)$%'<*%; 2) in otheis, tieaties seem to imply a vaiiety of iights of 0%2"0 +%>%6? on
the pait of victims anu suivivois that aie at least in piinciple incompatible with
amnesties; S) ceitain tieaties contain piohibitions on $*"*<*)+? 0(>(*"*()&$ foi ceitain
inteinational ciimes, which an amnesty woulu effectively eiase by eliminating the
possibility of piosecution; anu 4) finally, state paities may have the uuty to ''iespect anu
ensuie'' ceitain &)&6%+)2"#0% +(27*$ gianteu thiough tieaties, entailing policies of
pievention of inteinational ciimes that coulu piecluue amnesties. Though the legal
issues heie aie complex anu have geneiateu a laige inteipietive liteiatuie, no
unambiguous ieauing of tieaty law exists that uefinitively iules out uomestic amnesties,
since eveiy attempt to infei such a ban is subject to alteinative inteipietations that
establish at least the possibility of plausible aiguments foi the compatibility of
amnesties. Let us now examine these uistinct infeiential paths inuiviuually.
!" #$%&'()*%$+,- /0-+1,*+%2&
The fiist anu peihaps most fiequently useu aigument against amnesties centeis
on the significant numbei of multilateial tieaties that explicitly iequiie ciiminal
piosecution of inuiviuuals iesponsible foi specific ciimes.1S1 The piecise natuie anu
scope of the obligation vaiies fiom one tieaty to the next, but the geneial obligation to
ensuie inuiviuual ciiminal accountability is cleai.1S2
Examples incluue the following:
@%&)'(6%A Aiticle I of the uenociue Convention pioviues, "The Contiacting Paities
confiim that genociue, whethei committeu in time of peace oi in time of wai, is a ciime
unuei inteinational law which they unueitake to pievent anu to punish."1SS This seems

4
Foi a iecent nuanceu view see Nichael Schaif, "Fiom the eXile Files: An Essay on Tiauing }ustice foi
Peace," B"$7(&2*)& C D%% ;%8(%E no. 6S, 2uu6. Page numbeis.
S
Foi a classic statement see Biane 0ientlichei, "Settling Accounts: The Buty to Piosecute violations of a
Piioi Regime," F"0% D"E G)<+&"0 vol. 1uu, 1991. Page numbeis.


6

to imply that states offeiing amnesties to potential 2%&)'(6"(+%$ aie in bieach of theii
tieaty obligations, but this woulu be a mattei foi aujuuication, since it is not
immeuiately obvious whethei punishment coulu only entail the kinu of investigation,
piosecution, tiial, conviction, anu sentencing noimally envisioneu as the suite of legal
pioceuuies that amnesties foieclose.
@+"8% #+%"'7%$ ): *7% @%&%8" H)&8%&*()&$ "&6 .+)*)')0 IA All states aie paities to the foui
ueneva Conventions.1SS Each convention cieates state uuties conceining "giave
bieaches," which incluue willful killing, toituie oi inhuman tieatment, willfully causing
gieat suffeiing oi seiious injuiy to bouy oi health, anu unlawful confinement of civilians
committeu in the context of inteinational, but not inteinal, aimeu conflicts. Among
othei things, states paities aie obligateu to seaich foi, piosecute, anu punish
peipetiatois of giave bieaches, unless they extiauite them foi puiposes of tiial by
anothei state paity. It has been asseiteu that the official commentaiy to the ueneva
Conventions inuicates that the obligation to piosecute giave bieaches is absolute.1S8
This implies that an amnesty oi any similai impeuiment to piosecution of giave
bieaches woulu violate a state's obligations unuei the tieaty.
But whethei the "giave bieaches" piovisions of the ueneva Conventions
unambiguously ueteimines a state's legal uuty to eschew amnesties foi its own
nationals is not at all stiaightfoiwaiu. Theie is fiist of all the uistinction between
inteinational aimeu conflict, the ultimate concein of the Conventions, anu inteinal oi
uomestic conflict, which as we have seen is iefeiieu to in Piotocol II, but in that case in a
sense that actually seems to %&')<+"2% amnesties, iathei than foibiu them. The ultimate
puiview of all the Conventions, inteinational waifaie, is as many commentatois have
noteu now actually a iathei small subset of all global conflicts in which inteinational
ciimes aie committeu. Theiefoie, even insofai as we can inteipiet the ueneva
Conventions to ueclaie amnesties as violations of states' legal obligations to investigate
anu piosecute giave bieaches, this woulu apply only to the small minoiity of uomestic
amnesties gianteu foi involvement in an inteistate, as opposeu to an inteinal, conflict.
J)+*<+%A Aiticle 7 of the 0N Convention against Toituie anu 0thei Ciuel, Inhuman oi
Begiauing Tieatment oi Punishment (CAT) ueclaies an obligation on the pait of states
paities to piosecute oi extiauite peisons allegeu to have committeu toituie.161 Yet the
piecise woiuing implies something less than an absolute obligation.162 As Louise
Nallinuei notes, the convention iequiies any state paity, in which an allegeu toituiei is


7

piesent, to investigate the facts, anu if appiopiiate, 'submit the case to its competent
authoiities foi the puipose of piosecution' oi extiauite the suspect.
6
This woiuing is
moie ambiguous than the explicit obligations outlineu in the uenociue Convention, anu
consequently has causeu many commentatois to aigue that theie is a uegiee of
peimissiveness iegaiuing the mannei in which a state must caiiy out its uuties unuei
the CAT. It seems, insteau, to leave the uecision on whethei to piosecute allegeu
toituieis to the piosecutoiial authoiities.
7
16S
Theiefoie, while the iequiiement to piosecute toituie is explicit, it is not
manuatoiy, anu the ambiguity of the language gives states consiueiable uiscietion on
what kinu of investigation oi piosecution they must conuuct. 168 Noieovei, the tieaty
coveis only allegations of toituie committeu by public officials oi those who aie acting
unuei some soit of authoiization of public officials, effectively excluuing membeis of
iebel gioups fiom the ielevant piovisions.
K&:)+'%6 6($"//%"+"&'%A Aiticle 6 of the Inteinational Convention foi the Piotection of
All Peisons fiom Enfoiceu Bisappeaiance iequiies states paities to holu ciiminally
iesponsible those who aie both uiiectly anu inuiiectly iesponsible foi the commission
of enfoiceu uisappeaiance. Aiticle 11(1) fuithei pioviues: "The State Paity in the
teiiitoiy unuei whose juiisuiction a peison allegeu to have committeu an offence of
enfoiceu uisappeaiance is founu shall, if it uoes not extiauite that peison oi suiienuei
him oi hei to anothei State in accoiuance with its inteinational obligations oi suiienuei
him oi hei to an inteinational ciiminal tiibunal whose juiisuiction it has iecognizeu,
submit the case to its competent authoiities foi the puipose of piosecution." The Intei-
Ameiican Convention on the Foiceu Bisappeaiances of Peisons uses a similai
foimulation.166 Bowevei, like the uefinition of toituie, the uefinition of foiceu (anu
enfoiceu) uisappeaiance is applicable only to state actions. Theie is no tieaty-baseu
concept of enfoiceu uisappeaiance applicable to acts committeu outsiue of the state's
uiiection anu contiol.
3" 4+15* *% $'6'78

6
CAT, ait. 7(1): "The State Paity in teiiitoiy unuei whose juiisuiction a peison allegeu
to have committeu any offence iefeiieu to in aiticle 4 is founu, shall in the cases
contemplateu in aiticle S, if it uoes not extiauite him, submit the case to its competent
authoiities foi the puipose of piosecution."
7
L. Nallinuei, ,>&%$*?L M<>"& ;(27*$ "&6 .)0(*('"0 J+"&$(*()&$, L. Nallinuei, ,>&%$*?L M<>"& ;(27*$ "&6 .)0(*('"0
J+"&$(*()&$A N+(62(&2 *7% .%"'% "&6 G<$*('% O(8(6% (0xfoiu: Bait, 2uu8), at 127-28.


8

A seconu tieaty-baseu justification useu to oppose the legality of ceitain amnesties
conceins the iight-to-iemeuy piovisions establisheu in vaiious human iights tieaties.
The obligation to ensuie an effective iemeuy in the event of a human iights violation
appeaieu as eaily as the auoption of the 0niveisal Beclaiation on Buman Rights.174
0thei piominent examples incluue Aiticle 2(S) of the Inteinational Covenant on Civil
anu Political Rights (ICCPR) anu Aiticle 6 of the Committee on the Elimination of Racial
Bisciimination CERB.17S Bioauly unueistoou, the iight-to-iemeuy obligation
encompasses, intei alia, state iesponsibility anu authoiity to ensuie the punishment of
human iights violatois. In that iespect, it appeais to be in uiiect conflict with the
piimaiy function of amnesties, namely to iemove the piospect anu consequences of
uomestic ciiminal juugment.
Yet the iight to an effective iemeuy is not as bioau as it may appeai. Foi
example, it uoes not pioviue piivate peisons with a iight to foice the state to piosecute
a specific peison.177 The uecision to piosecute an inuiviuual - oi alteinatively to
uecline to uo so - is foi the state to make. In auuition, the iight to iemeuy meiely places
an obligation on the state to make a goou faith effoit to conuuct "a thoiough anu
effective investigation capable of leauing to the iuentification anu punishment of those
iesponsible, incluuing effective access foi the complainant to the investigatoiy
pioceuuie."
8
178 The piimaiy function of iight-to-iemeuy piovisions actually is to
ensuie the iight of victims of human iights violation to compensation thiough a juuicial,
oi possibly nonjuuicial, pioceeuing. Theie is theiefoie leeway in the type of 'thoiough
anu effective investigation' iequiieu. Foi example, Nallinuei emphasizes that amnesties
fiom ciiminal pioceeuings uo not necessaiily impeue the iight of victims to
compensation, as theie may be acceptable nonjuuicial iecouises that fulfill this iight. A
piominent example of this is the intiouuction of community-baseu justice piocesses in
0ganua. Tiauitional Acholi justice piactices such as >"*< )/<*L in combination with
conuitional amnesties, have been offeieu as ieconciliation mechanisms anu as a
potential ieplacement foi inteinational tiials.
9


9" #$%5+0+*+%2& %2 :*,*)*%$8 ;+6+*,*+%2&

8
,#6P<0$">%* F">"& 89 J<+Q%?, Euiopean Couit of Buman Rights (Novembei 2, 2uu4),
App. No. S244696, paia. SS.
9
L. Nallinuei 'Can Amnesties anu Inteinational }ustice be Reconcileu.' J7% I&*%+&"*()&"0
G)<+&"0 ): J+"&$(*()&"0 G<$*('% 1 (2uu7):2u8-2Su.


9

A thiiu tieaty-baseu justification auvanceu foi opposing the legality of ceitain
amnesties is ielateu to piohibitions on statutoiy limitations foi ceitain inteinational
ciimes. The Convention on the Non-applicability of Statutoiy Limitations to Wai Ciimes
anu Ciimes against Bumanity is the best-known tieaty on the subject.182 Aiticle 1 of
the Convention pioviues that no statutoiy limitations shall apply to wai ciimes anu
ciimes against humanity. Aiticle 4 pioviues that states paities to the convention must
ensuie that statutoiy "oi othei limitations" shall not apply to the piosecution anu
punishment of wai ciimes anu ciimes against humanity, anu "shall be abolisheu."
Aiticle 29 of the Rome Statute similaily pioviues that genociue, ciimes against
humanity, anu wai ciimes "shall not be subject to any statute of limitations."
The statutoiy-limitations-baseu aigument against amnesties is stiaightfoiwaiu.
The claim is that by putting an immeuiate enu to piosecutions foi specific ciimes, an
amnesty effectively eiases the piotection affoiueu by statutes of limitation, whose
piimaiy function is to pieseive the possibility of piosecutions uuiing a uesignateu time
fiame. The aigument, in shoit, is that it woulu be logically inconsistent to foibiu
statutoiy limitations foi specific ciimes yet allow amnesties foi the same ciimes. This
aigument is initially appealing but ultimately unconvincing. The main puipose of tieaty
piovisions piohibiting statutoiy limitations foi specific ciimes is to pievent states fiom
cieating a geneial oi stanuing law that woulu iestiict, au infinitum, the timing foi
piosecution of ceitain inteinational ciimes. The main puipose of an amnesty, by
contiast, is to put an immeuiate enu to piosecutions anu punishment foi specific ciimes,
not as a geneial iule, but as an au hoc, extiaoiuinaiy legal measuie.18S In othei woius,
the effect of an amnesty woulu not be to unueimine the benefit of the statutoiy
limitation piohibition in any geneial anu piospective sense. It woulu apply once, anu
not geneially, anu woulu have effect ietiospectively, not piospectively.184
Anothei significant weakness in the statutoiy-limitations-baseu aigument
against amnesties is that theie is no eviuence that states view oi tieat such piohibitions
as pei se limits on theii uiscietion to piomulgate amnesties. This fact was unueiscoieu
most iecently in the context of the negotiations of the Rome Statute, wheie the
uiscussions of statutoiy limitations, anu those on amnesties, weie conuucteu anu
concluueu sepaiately. Theie is no eviuence that any goveinment vieweu Rome Statute
Aiticle 29, which piohibits statutoiy limitations foi ICC ciimes, as having legal
consequences foi the issue of amnesty.


1u

!" <%27'$%1,0-' &*,*' %0-+1,*+%2&
The nonueiogability of ceitain state obligations in the iealm of human iights has
been useu an aigument against the legality of ceitain amnesties. In times of genuine
public emeigency thieatening the life of a state, goveinments may tempoiaiily suspenu
oi ueiogate fiom ceitain iights puisuant to ceitain tieaties that contain explicit
ueiogation clauses.18S Bowevei, most ueiogation clauses pioviue that ceitain coie
iights -incluuing the iight to life anu the piohibitions against toituie anu slaveiy -
cannot be the subject of ueiogation.186 0n this basis, it has been asseiteu, foi example,
that an amnesty that incluues toituie woulu, (/$) :"'*), violate inteinational law.187
Bowevei, the aigument is mistaken. The fact that the fieeuoms fiom state
sponsoieu toituie, muiuei, oi slaveiy aie nonueiogable state obligations only
establishes that theie is a hieiaichy of violations. That is to say, it establishes only that
ceitain uuties aie nonueiogable (e.g., ensuiing the iight not to be toituieu) wheieas
otheis aie not (e.g., ensuiing the iight of peaceful assembly). Nowheie uoes it state, foi
example, that the uuty to investigate anu punish toituie oi slaveiy is paiamount to the
uuty to halt oi pievent theii commission.
Insteau, theie is simply the iight to be fiee fiom such acts. Inueeu, in consiueiing
the ielevant aiticles of the ICCPR in this context, they pioviue only that humans shall
not be subjecteu to state-sponsoieu toituie oi slaveiy.188 In shoit, it is the negative
uuty to iefiain fiom the caiiying out of violations such as toituie oi slaveiy, anu not the
positive uuty to ensuie legal iemeuies foi such violations, which is explicitly
nonueiogable uuiing a national emeigency. Theiefoie, it uoes not necessaiily follow
that amnesties, which iemove ciiminal liability foi pieviously committeu offenses,
woulu violate these obligations.
In sum, while it is ceitainly tiue that states aie unuei a numbei of geneial obligations to uo
oi iefiain fiom uoing ceitain acts in iespect to theii status as paities to inteinational tieaties anu
conventions, it is fai less cleai whethei any tieaty iequiies a state paity to iefiain fiom a specific act
of national amnesty. The chain of infeiences leauing fiom states' obligations via the paths of
piosecutoiial uuties, iights of iemeuy, oi obligations iegaiuing statutes of limitations entail a
numbei of steps between the geneial legal uuties of states, anu the specific amnesty positions that
states may take. In most cases, these inteimeuiate steps iequiie quite extensive inteipietations, anu
while such inteipietations may well iesolve that a specific amnesty uoes inueeu compiise a bieach
of a state's legal obligations, otheis may well not.



11

/'.#%1-$2 !"#,$"-#)%"-3 4-5
0nlike national legal systems, public inteinational law claims among its souices
not just the text of inteinational tieaties (most of which, in any case, have less than
univeisal iatification amongst the community of nations) but also customaiy
inteinational law, which as its name implies iefeis to legal piinciples that aie the fiimly
establisheu, ieflecting a wiuespieau anu consistent piactice of states.
1u
Foi oui
puiposes in paiticulai it is impoitant to beai in minu that, unuei the ielevant
uefinitions as laiu out in Ait. S8 of the Statute of the Inteinational Couit of }ustice (the
couification of the accepteu souices of inteinational law), custom is equally valiu as a
souice of law as inteinational tieaties.
Two conuitions must be met in oiuei foi a law oi legal piinciple to iise to meet
the iequiiements of customaiy inteinational law. Fiist, the legal piinciple must be
factually obseiveu to be a geneial state piactice - in laypeison's teims, one must be able
to show convincingly that the piinciple is actually applieu by the vast majoiity of states.
Seconu, such state piactices, in which states uo factually confoim theii aujuuication to a
given piinciple, must be )/(&() R<+($; that is, it must be uemonstiable that states confoim
to the piinciple because they iecognize that they aie legally obligateu to uo so, iathei
than, say, because they believe confoimity may be in theii tempoiaiy inteiest oi
because it is expeuient to uo so.
While customaiy inteinational law pioviues a much iichei anu moie piomising
iesouice foi answeiing the question of the legal status of uomestic amnesties, that
iichness comes with its own piice, since customaiy inteinational law, in its vagueness
anu cuiiously self-valiuating quality, can be iemaikably open-enueu, leaving all too
much ioom foi inteipietation.
The questions foi us aie now the following: fiist, whethei establisheu customaiy
noims of inteinational law piohibit uomestic amnesties; seconu, if we cannot answei
this question affiimatively, whethei theie is neveitheless giowing eviuence that an
explicit anti-amnesty iule is in the piocess of emeiging as custom, oi as legal scholais
occasionally put it, "ciystallizing" as a customaiy noim.

1u
See the tiauitional souice foi the uefinition of customaiy inteinational law in the
Chaitei of the Inteinational Couit of }ustice Ait. S8.1.b., which uefines custom as
"eviuence of a geneial piactice accepteu as law."


12

The fiist question ueals with the specific ielevance of customaiy inteinational
law in its ueteimination of R<$ ')2%&$, liteially "compelling" oi highei law. The vienna
Convention on the Law of Tieaties uefines R<$ ')2%&$ as "a noim accepteu anu
iecognizeu by the inteinational community of States as a whole as a noim fiom which
no ueiogation is peimitteu anu which can be mouifieu only by a subsequent noim of
geneial inteinational law having the same chaiactei."
11

As it is commonly useu in the language of inteinational ciiminal law, R<$ ')2%&$
iefeis to a set of acts that must be illegal unuei any system of uomestic law; anu,
conveisely, to acts which all uomestic ciiminal law systems aie obligateu to ueclaie
illegal, even in the absence of specific tieaty obligations. Such R<$ ')2%&$ ciimes thus
establish a set of coiiesponuing noims that aie consiueieu peiemptoiy; that is, they aie
univeisally binuing on states without exception oi ueiogation. Anu the peiemptoiy,
nonueiogable status of R<$ ')2%&$ ciimes, in tuin, can be useu to giounu an infeience to
a univeisal oi peiemptoiy obligation on the pait of states to pievent, investigate,
piosecute, anu punish such ciimes. In the teiminology of inteinational law, insofai as a
state accepts that ceitain acts aie violations of R<$ ')2%&$, they also theieby assume a
uuty "%+2" )>&%$LS that is, a uuty oweu to eveiyone, univeisally anu inuepenuently of
any paiticulai juiisuiction oi any tieaty obligations a state may oi may not have.
12

Such an %+2" )>&%$ obligation ceitainly entails that states cannot auopt laws that
peimit R<$ ')2%&$ offences. An aigument can theiefoie be mounteu that amnesties
coveiing such offences woulu ueviate fiom this veiy stiong claim, anu inueeu much of
the legal opinion that holus uomestic amnesties as contiaiy to '<$*)>"+? inteinational
law infeis such a status fiom these peiemptoiy univeisal obligations to outlaw anu
punish.
G<$ ')2%&$ oiiginateu in the univeisal anu exceptionless ban on ciimes such as
high-seas piiacy anu state-sanctioneu slaveiy. The expansion of the catalogue of R<$
')2%&$ ciimes to genociue, ciimes against humanity, toituie, iape, anu othei giave
violations of inteinational tieaty law was among the less spectaculai but most

11
vienna Convention on the Law of Tieaties, 11SS 0.N.T.S. SS1, ait. SS. See Fieeman 274, note
2S6.
12
In the famous "Baicelona Tiaction Case," the Inteinational Couit of }ustice uefineu %+2" )>&%$
obligations as those that "ueiive, foi example, in contempoiaiy inteinational law, fiom the
outlawing of acts of aggiession, anu of genociue, as also fiom the piinciples anu iules
conceining the basic iights of the human peison, incluuing piotection fiom slaveiy anu iacial
uisciimination." 91, Baicelona Tiaction Case, (197u) IC} Repoits S at page S2.


1S

influential uevelopments in the post-Nuiembeig iegime of inteinational ciiminal law.
If, theiefoie, customaiy law has in fact geneiateu a coheient set of legal noims, unuei
which aie incluueu most if not all of the acts that aie usually piosciibeu as giave
violations of human iights unuei inteinational tieaties, then a numbei of conclusions
may follow that beai uiiectly on oui question.
Fiist, iuentifying ciimes such as genociue anu ciimes against humanity as R<$
')2%&$ violations, which geneiate in tuin %+2" )>&%$ uuties to piosecute, ciicumvents
the obvious limitations of tieaty law: the absence of explicit iefeiences to amnesties,
anu the patchwoik natuie of tieaties. Not all states aie paities to all inteinational
tieaties, aftei all. Nany states aie signatoiies of tieaties without having iatifieu them;
some states may iatify tieaties but subsequently fail to incoipoiate the tieaty
piovisions into theii uomestic law systems, anu so on. The stiongest tieaty-baseu uuty,
the "giave bieaches" iegime of the ueneva Conventions, goveins inteinational conflicts
only.
But a uuty to piosecute ueiiveu fiom customaiy inteinational law woulu be
binuing on all states iiiespective of theii tieaty commitments oi lack of them, coveiing
both inteinational anu inteinal conflicts. This commitment is eviuent in expeiiments in
'univeisal juiisuiction,' in which soveieign states investigate anu piosecute non-
nationals outsiue of theii own teiiitoiy. While the most famous of these expeiiments
weie the legal pioceeuings against foimei Chilean uictatoi Augusto Pinochet, aiiesteu
in Lonuon on a Spanish waiiant, othei (West Euiopean) countiies, most notably
Belgium, also maue conceiteu attempts to tiansfoim inteinational ciiminal law by
asseiting theii uuty anu juiisuiction to piosecute R<$ ')2%&$ ciimes.
1S
0n the suiface at
least, customaiy inteinational law's exceptionless chaiactei piesents a stiongei
infeience fiom states' uuties to a piosciiption of amnesties than tieaty law uoes.
Bowevei, the use of customaiy inteinational law as a iesouice foi mounting this
kinu of aigument against amnesties comes at a high piice. The piocess by which a legal
noim is gianteu this customaiy status is not meiely anu peihaps not even
pieuominantly legal but ultimately political in natuie. State piactices, in othei woius,
aie fiequently saiu to "ciystallize" into a new legal noim, a metaphoi suggesting a gieat
ueal of causal complexity. As a new legal noim ciystallizes, what begins as a fluiu anu

1S
For a balanced and not uncritical account of the ICTR in Rwanda, see Payam Akhavan (1997) Justice and
reconciliation in the Great Lakes Region of Africa: the contribution of the international criminal tribunal for
Rwanda, Duke Journal of Comparative and International Law, 7.


14

uynamic piocess of political negotiation, giauually soliuifies into haiu law as states,
looking to othei states, accept that a given noim is not just one policy option among
otheis to be followeu oi iejecteu accoiuing to the calculation of national inteiest, but
inueeu a geneially acknowleugeu legal obligation that constiains the fieeuom of states'
political action. Anu once ciystallizeu, so the metaphoi implies, colu haiu law will
iemain a uuiable baiiiei to state piactice inuefinitely into the futuie.
14

The wiuespieau use of the ciystallization metaphoi ceitainly has the auvantage
that it uesciibes the ueep mutual uepenuence of the uevelopment of new inteinational
law noims anu the uynamic piocess of political anu even moial noims in the context of
inteinational politics anu inteinational ielations. States' auoption of noims as binuing
on theii piactice obviously has both a political uimension, wheie in the couise of a
justice cascaue
1S
a noim ieaches a 'tipping point' wheie it is accepteu as valiu, iathei
than confoimeu to stiategically, anu a legal uimension that coiiesponus to the concept
of )/(&() R<+($, the seconu necessaiy conuition foi custom togethei with consistent state
piactice.
16

But like any contiolling metaphoi, ciystallization also has the potential foi
piouucing a iange of inteipietive pioblems, both geneially anu in the paiticulai context
of the question of the legality of national amnesties.
Ciystallization is, ciucially, in the eye of the beholuei: both establisheu state
piactices anu )/(&() R<+($ aie liable foi subjective juugments, anu those uoing the
subjective juuging - couits with theii iulings anu goveinmental agents but also legal
scholais, non-goveinmental oiganizations anu othei uiplomatic, policy anu acauemic
expeits - aie geneially inteiesteu paities. When it comes to amnesty, in paiticulai, two
peisons looking at the same facts can even come to opposite conclusions. Foi example,
one peison may view the wiuespieau iesistance to a puipoiteu anti-amnesty noim as
eviuence of an absence of )/(&() R<+($ on the subject, wheieas anothei peison may view
such iesistance as an implicit iecognition of the existence of the noim. Although the

14
0n customaiy inteinational law geneially see Naik E. villigei, H<$*)>"+? I&*%+&"*()&"0 D"E "&6
J+%"*(%$A , T"&<"0 )& *7% J7%)+? "&6 .+"'*('% ): I&*%++%0"*(&2 =)<+'%$, The Bague: Kluwei, 1997.
1S
We iefei heie to the influential teim coineu by Ellen Lutz anu Kathiyn Sikkink: see
Lutz, Ellen, anu Kathiyn Sikkink. "The }ustice Cascaue: The Evolution anu Impact in
Latin Ameiica of Foieign Buman Rights Tiials," H7('"2) G)<+&"0 ): I&*%+&"*()&"0 D"E ,
2:1 (Spiing 2uu1), 1-S4.
16
0n the uiffeiences between these aieas of inteinational law see, e.g., N. Fieeman anu
u. van EitL I&*%+&"*()&"0 M<>"& ;(27*$ D"E (Toionto: Iiwin Law, 2uu4), at 6S-67.


1S

lattei account is moie ciiculai in its ieasoning, as it means that iesistance oi
enuoisement of the noim constitutes eviuence of its existence, both views have
meiit.2SS Yet theie shoulu be little toleiance when theie is a failuie to examine actual
amnesty piactice, incluuing what amnesty laws actually say, how the enacting paities
actually explain anu uefenu them, anu how the exteinal community of states actually
ieacts.2S4 0n the lattei aspect, a ieview of the outcomes of the 0N Buman Rights
Council's 0niveisal Peiiouic Review piocess is telling foi its neai-total lack of ciiticism
of states that iecently auopteu amnesties coveiing human iights ciimes, such as Algeiia
anu Afghanistan.2SS (FRANCESCA T0 CBECK IF BRC BAS CRITICISEB 0TBER STATE
ANNESTIES SINCE N0v 2uu9 WBEN B00K CANE 00T)
Thus ueclaiing a customaiy noim to be ciystallizeu, oi ciystallizing, can iaise the
suspicion of wishful thinking, bootstiapping, oi the hope of a self-fulfilling piophecy,
uiesseu up as an objective claim of fact. The veiy iuea of customaiy inteinational law
labouis unuei the suspicion of enacting what philosopheis call a natuialistic fallacy, an
unjustifieu infeience fiom facts about what is the case to noimative claims about what
ought to be.
Natuialistic fallacies, howevei, iun in two uiiections, anu claims about a given
noim having alieauy ciystallizeu in custom, oi about noims that aie in the
ciystallization piocess, can easily appeai as unjustifieu infeiences fiom what the
commentatoi wishes to be so, to what she claims is alieauy so. Inueeu the peculiaiities
of the emeigence conuitions foi new legal noims lie at the heait of multiple ciiticisms of
custom as a valiu souice of inteinational law on a pai with tieaty law.
17

0n the question of the legality of amnesties foi inteinational ciimes, appealing to
customaiy inteinational law to aigue foi a ciystallizing oi ciystallizeu noim that such
amnesties aie contiaiy to states' legal obligations to piosecute, anu aie theiefoie
contiaiy to inteinational law, piesents us with a massive pioblem. 0n the one hanu,
theie can be no uoubt whatsoevei that the categoiy of R<$ ')2%&$ ciimes, anu theii %+2"
)>&%$ chaiactei, has in fact ciystallizeu, incoipoiating the Nuiembuig-eia scheuule of
basic human iights anu the coiiesponuing set of inteinational ciimes as the expiession
of a set of peiemptoiy legal noims. This ciystallization acceleiateu uiamatically in the

17
See e.g. }. Patiick Kelly, "The Twilight of Customaiy Inteinational Law," U(+2(&("
G)<+&"0 ): I&*%+&"*()&"0 D"E, no. 4u, 2uuu; N.C.B. Bunbai, "The Nyth of Customaiy
Inteinational Law," ,<$*(& F%"+#))Q :)+ I&*%+&"*()&"0 D"E no. 1, 198S.


16

late 198us anu thioughout the 199us, in the wake of uemociatization piocesses in Latin
Ameiica, the foimei Soviet 0nion, East Asia anu to a limiteu extent in sub-Sahaian
Afiica. With all obvious caveats, it is settleu piactice amongst the community of
soveieign states to bai such acts as toituie, genociue, ethnic cleansing anu mass
atiocity; anu one can ceitainly aigue that these bais aie not meie expeuiency but
expiess )/(&() R<+($V that states may not legally toituie oi muiuei theii way towaius
theii national inteiest.
Anu yet on the othei hanu, Louise Nallinuei's amnesty uatabase, collecting anu
analyzing amnesty policies inteinationally, offeis stiong empiiical confiimation foi the
claim that, in the yeais subsequent to the iise of a fai stiongei anti-impunity sentiment
ovei the last ten yeais, fai fiom ieuucing the numbei of uomestic amnesties foi
suspects of inteinational ciimes, states have in fact (&'+%"$%6 the numbei of such
amnesties.
18

0ne explanation foi this appaient paiauox is simply a piouuct of iealism in
inteinational ielations: just because inteinational legal noims ciystallize uoesn't mean
that states aie piepaieu to uo anything much about them.
19
But Nallinuei cites anothei,
peihaps uiametiically opposeu explanation offeieu by Ronalu Slye. Accoiuing to this
aigument, the incieaseu use of amnesties since the eaily 199us actually expiesses the
giowing influence of inteinational ciiminal law, which now iepiesents a cieuible thieat
that peipetiatois of the most seiious of inteinational ciimes will face inuictment anu
piosecution. Rathei than take impunity foi gianteu, then, state agents issue amnesties
to guaiu against piosecutions that pieviously woulu have been unlikely, whethei at the
uomestic oi the inteinational level. Bence in a classic example of blowback of
unintenueu consequences, the iise of inteinational law has actually seiveu if not to iaise
the value of uomestic amnesties, then to iaise at least the peiception of this value to
ielevant state agents, anu quite possibly foi expiessivist ieasons (the expiession anu
soliuification of the soveieignty claims of a paiticulai auministiation) that aie uistinct
fiom the immeuiate piagmatic goals of the amnesty policy itself.

18
Nallinuei, ,>&%$*(%$L M<>"& ;(27*$L "&6 .)0(*('"0 J+"&$(*()&$, chaptei S; see also Ronalu Slye,
"The Legitimacy of Amnesties unuei Inteinational Law anu ueneial Piinciples of Anglo-
Ameiican Law: Is a Legitimate Amnesty Possible." U(+2(&(" G)<+&"0 ): I&*%+&"*()&"0 D"E no. 4S,
2uu2; Tiumbull 29S.
19
See Leyla Sauat, "Exile, Amnesty, anu Inteinational Law," 9.


17

This casts aiguments foi a customaiy anti-amnesty noim unuei a ceitain clouu
of suspicion - of attempting to piomote (on scant eviuence), iathei than iepoit, the
ciystallization of such a noim: as Nichael Schaif puts the mattei, "|Tjhose who aigue
that customaiy inteinational law piecluues amnestyexile foi ciimes against humanity
base theii position on nonbinuing ueneial Assembly iesolutions, hoitative ueclaiations
of inteinational confeiences, anu inteinational conventions that aie not wiuely iatifieu,
iathei than on any extensive state piactice consistent with such a iule."
2u

0ne shoulu note, howevei, that some legal scholais take the view that customaiy
inteinational law is foiming in such a way that )/(&() R<+($ is aheau of state piactice in
its uevelopment. Applieu to amnesty, the aigument is that uespite the inconvenient
iealities of amnesty piactice (i.e., amnesties aie still extensively useu, accepteu, anu
unlike the piactice of toituie, openly uefenueu by piacticing states), one coulu still
asseit the existence of an emeiging customaiy noim on the basis that states
incieasingly believe themselves foibiuuen fiom amnestying ceitain inteinational
ciimes. If this weie the case, such state beliefs coulu inueeu constitute eviuence of an
embiyonic customaiy noim. Bowevei, a boluei claim of ciystallization woulu be
untenable in light of contiauictoiy state piactice anu the absence of uiscouiaging oi
piohibitive woiuing about amnesties in tieaty law.
In conclusion, even baseu on a selective anu paitial account of amnesty piactice,
the most that one can pioclaim is the existence of an emeiging customaiy noim against
amnesties that puipoit to covei inteinational ciimes. Whethei such a noim ultimately
ciystallizes, oi whethei a ieinteipietation aiises on the basis of a moie complete
consiueiation of amnesty piactice, is a mattei of speculation foi the time being.2S6 But
this uiscussion shoulu suffice to show that the most piomising souice of a univocal
voice in inteinational law on the status of amnesties, a puipoiteuly ciystallizing noim in
customaiy inteinational law, cannot be saiu to exist.
21


!"#,$"-#)%"-3 /%'$# 6'3)"7.

2u
Schaif, "Fiom the eXile Files," S6u-1.
21
Tiumbull concluues that "|sjtate piactice, especially the piactice of states most affecteu by
seiious ciimes unuei inteinational law, is the stiongest inuication that theie is no customaiy
inteinational law imposing a uuty to piosecute peipetiatois of such ciimes." 29S. See also
Schaif, "Fiom the eXile Files," S6u: "Notwithstanuing the chimeiical conclusions of some
scholais, theie is scant eviuence that a iule piohibiting amnesty oi asylum in cases of ciimes
against humanity has iipeneu into a compulsoiy noim of customaiy inteinational law."


18


State piactice can be expiesseu not just by national legislation but also by
national aujuuication; that is, how uomestic law systems opeiate, what kinu of juuicial
iulings they piouuce, anu whethei these iulings become uefinitive pieceuent foi
subsequent state piactices. But beyonu such national souices, tiansnational anu
inteinational couits also play a ciucial iole in the piouuction of customaiy law. Inueeu
the iemaikable iise of the piofile anu influence of public inteinational law ovei the
couise of the past yeais consists laigely in the caselaw of high-visibility inteinational
tiibunals such as the Euiopean Couit of Buman Rights (ECBR), the Intei-Ameiican
Couit of Buman Rights, (IACBR), the Inteinational Ciiminal Tiibunal foi Rwanua
(ICTR), the Inteinational Ciiminal Tiibunal foi the Foimei Yugoslavia (ICTY) the Special
Couit foi Sieiia Leone (SCSL), anu, since 2uu2, the Inteinational Ciiminal Couit (ICC).
Some of these juuicial bouies aie well-establisheu anu long-teim couits with a lengthy
histoiy of iulings; the ECBR uates to 19S9; the IACBR was establisheu as a coineistone
of the system of human iights piotection anu enfoicement of the 0iganization of
Ameiican States in 1979. 0theis, such as the ICTY anu SCSL, aie extiaoiuinaiy ciiminal
tiibunals with limiteu tempoial anu geogiaphical juiisuiction. The ICC, of couise, is a
peimanent anu global ciiminal couit with ovei 1uu state paities.
All of these couits have in vaiying uegiees hau to ueal with the amnesty
contioveisy. . Foi the most pait, they have been consistent in theii position that
uomestic amnesties foi inteinational ciimes aie inconsistent with inteinational legal
noims, anu iepiesent failuies of states to fulfill vaiious inteinational legal obligations.
Noieovei, inteinational couits fiequently appeal to one anothei's iulings, ieinfoicing
anu consoliuating a netwoik of caselaw. Theiefoie one might be inclineu to see the
uevelopment of juiispiuuence fiom the constellation of supei-national couits as making
a significant contiibution to the ciystallization of a customaiy anti-amnesty noim.
This conclusion woulu be uifficult to justify, howevei. Fiist of all the status of
such juuicial iulings is stiongly limiteu. Custom in inteinational law aiises by statute
fiom a combination of establisheu state piactice anu )/(&() R<+($. The iulings of
inteinational couits may be consiueieu ielevant seconuaiy iesouices that may inuicate
the bioau outlines of ueveloping inteinational law. Bowevei, while such couits can offei
obseivations on peiceiveu tienus in customaiy law oi on its peiceiveu content, they


19

cannot "make" customaiy law. In that iespect, any tienu in amnesty juiispiuuence, as
such, beais no uiiect ielation to the foimation of custom.
State piactice anu inteinational juiispiuuence can even move in contiaiy
uiiections, as eviuent by the incieasing use of calibiateu, paitial amnesties at the
uomestic level. Neveitheless, the amnesty-ielevant iulings of inteinational ciiminal
couits have been fiequently appealeu to by commentatois aiguing foi the
ciystallization of an anti-amnesty piinciple, anu foi this ieason it's impoitant to uiscuss
some of the most significant anu influential of inteinational couits' moie iecent
uecisions iegaiuing the status of amnesties.
But befoie uoing so it is impoitant to acknowleuge the amnesty juiispiuuence of
the Intei-Ameiican Couit of Buman Rights in paiticulai, which has uevelopeu a
substantial iecoiu in battling impunity in the Ameiicas, anu has long playeu a leau iole
in the effoit to compel iegional states to enfoice human iights, to make public
infoimation about the fate of "uisappeaieu" victims of state iepiession, anu to pievent,
investigate, piosecute, anu punish seiious human iights violations. The full scope of the
IACBR's caselaw in human iights enfoicement is well beyonu the scope of this chaptei.
We focus on one cleaily geimane iecent iuling to inuicate the Couit's postuie anu
influence.
In its iuling in @)>%$ D<&6 89 N+"-(0 (2u1u), the Couit took up the case of
membeis of the "gueiiillas of Aiaguaia," a small gioup of stuuents anu woikeis, ovei
sixty of whom weie "uisappeaieu" (in fact, biutally toituieu, muiueieu, anu tosseu in
local iiveis) by elements of the Biazilian aimy anu state police in the miu-197us.
Biazil's 1979 Amnesty Law has pieventeu both the ielease of uefinitive infoimation on
the fates of the victims anu the investigation anu piosecution of those iesponsible foi
theii uisappeaiance. In its uecision, the Couit founu that the many tiansitional justice
effoits of the post-1982 Biazilian goveinment - incluuing extensive effoits to locate the
bouies of the missing anu monetaiy iepaiations - uiu not iise to meet its obligations
unuei the Convention, which iequiies states to guaiantee citizens' iecouise to faii legal
pioceuuies in cases wheie theii funuamental iights have been violateu. Inueeu, the
Couit helu, "the investigation anu punishment of those iesponsible foi the enfoiceu
uisappeaiance of the victims |.j is impossible uue to the Amnesty Law.|.j The
application of amnesty laws to peipetiatois of seiious human iights violations is


2u

contiaiy to the obligations establisheu in the Convention anu in the Intei-Ameiican
Couit's juiispiuuence."
24

By infeiiing Biazil's inability to uischaige its obligations unuei the Ameiican
Convention because of its uomestic amnesty legislation, the Couit's iuling in @)>%$
D<&6 89 N+"-(0 asseiteu not only the "non-compatibility of amnesties ielateu to seiious
human iights violations with inteinational law;" but inueeu such amnesties' "illegality."
Citing Aiticle 2 of the Ameiican Convention, which iequiies state paities to take
measuies to ensuie that human iights aie piotecteu anu enfoiceu in theii own uomestic
legal systems, the Couit thus founu that "the piovisions of the Biazilian Amnesty Law
that impeues the investigation anu punishment of seiious human iights violations lack
legal effect."
uiven the Biazilian Supieme Couit's affiimation of the Amnesty Law only six
months befoie the IACBR's iuling, this is a iemaikably foiceful expiession. Noieovei,
the Couit was explicit in its cataloguing of paiallel tiansnational couits' iulings on
amnesties in othei contexts, that it was attempting to ciystallize anu consoliuate an
inteinational law noim. Bowevei, uespite such a musculai iuling, the IACBR is of couise
limiteu in its juiisuiction to its iegional state paities. Noie substantially, howevei, the
Couit's uecision in @)>%$ D<&6 8 N+"-(0, while affiiming that such 'soft' justice
mechanisms as monetaiy iepaiations foi next of kin uo not iise to meet states'
obligations to investigate anu punish human iights abuses, uoes not iesolve whethei, in
eveiy case, ciiminal piosecution, whethei at the uomestic oi inteinational level, is the
sole avenue foi uischaiging such obligations, oi whethei othei accountability anu
sanction mechanisms might also satisfy them.

We now tuin biiefly to ielevant iulings in two inteinational ciiminal tiibunals.
Fiist, in .+)$%'<*)+ 89 W<+<&6-(R", the Tiial Chambei of the ICTY iuleu that, insofai as
toituie is a R<$ ')2%&$ violation implying a legal obligation to piosecute, any amnesty foi
such an act woulu be "geneially incompatible with the uuty of states to investigate"
toituie.
2S
Insofai as the uiscussion of amnesties was not cential to the facts oi the legal
issues of the case, howevei, the Couit's asseition was )#(*%+ 6('*<>; that is, a comment

24
Intei-Ameiican Couit of Buman Rights, Case of uomes Lunu et al. ("uueiiilha uo
Aiaguaia" v. Biazil, }uugment of Novembei 24, 2u1u, 47.
2S
Piosecutoi v. Anto Fuiunuzija, }uugement, Case No., IT-9S-171-T, paia. 1SS.
http:www.icty.oigcasefuiunuzija4


21

not necessaiily essential to any legal piinciples asseiteu in the iesolution of the case.
26

Neveitheless, many commentatois cite the asseition as pioof of the state of
inteinational law in ielation to amnesties. The Couit's logic, howevei, is seiiously open
to question. To the extent that the toituie piohibition may be consiueieu a R<$ ')2%&$
noim, this fact woulu establish only that states aie piecluueu fiom engaging in toituie.
To ueteimine whethei, when, oi how acts of toituie may be the subject of an amnesty
involves moie legal analysis than the Couit pioviueu. The Couit uiu not even unueitake
the piioi step of auuucing existence of wiuespieau state piactice oi )/(&() R<+($ in
suppoit of its legal asseition conceining amnesty, without which it uoes not attain
customaiy status, let alone the supeicustomaiy status of R<$ ')2%&$9
In the moie significant case of the Special Couit foi Sieiia Leone, among the
couit's most piessing initial tasks was to confiont the geneial amnesties that hau been
gianteu to Fouay Sankoh anu his iebel movement in the 1999 Lome Accoiu, which
biought a tempoiaiy stop to the ongoing violence in Sieiia Leone's civil wai. Alieauy at
the time of the signing of the Lome Accoiu, the official 0N iepiesentative piesent hau
iegisteieu a last-minute ieseivation to the amnesty's inclusion of ciimes against
humanity anu wai ciimes, anu explaineu that the 0N, foi its pait, woulu not iecognize
any amnesty foi these ciimes.
The eventual statute of the Special Couit foi Sieiia Leone incoipoiateu the same
waivei foi amnesties foi ciimes against humanity anu wai ciimes containeu in the 0N's
ieseivation: no such amnesties woulu be iegaiueu as legitimate by the couit. It was this
statute anu its implications that weie subsequently challengeu. In the couit's iuling in
.+)$%'<*)+ 8 X"00)& "&6 X">"+", the couit iejecteu the claim that its iefusal to iecognize
the Lome amnesty violateu valiu inteinational tieaties. Suppoiting its iuling, the couit
wiote that ".that theie is a ciystallizing inteinational noim that a goveinment cannot
giant amnesty foi seiious violations of ciimes unuei inteinational law is amply
suppoiteu by mateiials placeu befoie the Couit |but the viewj that it has ciystallizeu
may not be entiiely coiiect.it is accepteu that such a noim is ueveloping unuei
inteinational law."
27
The Couit's juugment, howevei, have been ciiticizeu on a numbei

26
The Fuiunuzija iuling uiu not choose to issue any views of amnesties pei se, theiefoie took no position
on the geneial peimissibility of amnesties as a mattei of inteinational law.
27
Piosecutoi v Noiiis Kallon anu Biimma Bazzy Kamaia, SCSL-2uu4-1S-AR72(E) & SCSL-2uu4-16-
AR72(E), Becision of 1S Naich 2uu4, paia 71; Piosecutoi v Augustine ubao, SCSL-2uuS-u1-I, Becision of
S1 Nay 2uu4, paia 9. Foi a complete account of the Lome piocess anu its subsequent legal effect on the


22

of giounus. These incluue the confusing claim to be a couit possessing univeisal
juiisuiction insteau of tiansfeiieu teiiitoiial juiisuiction, the failuie to classify the Lome
amnesty accoiuing to the specific teims anu ciicumstances of its auoption, anu the
cuisoiy analysis of the link between an obligation to piosecute anu the valiuity of an
amnesty.249 The Couit's appioach anu conclusions aie especially unconvincing when
put siue by siue with the ieseaich anu finuings of Nallinuei whose compiehensive
ieseaich shows the ongoing anu extensive state piactice of auopting bioau amnesties
anu the iaie lack of ciiticism by othei states of such piactice. It is also woith iemaiking
that the Couit's views also contiasteu with those of Sieiia Leone's Tiuth anu
Reconciliation Commission, anothei piouuct of the Lome Accoiu, which accepteu the
teims of the accoiu's amnesty.
While inteinational tiibunals such as the SCSL anu the ICTY weie shaiply limiteu
both in theii teiiitoiial juiisuiction anu theii uuiation, the Inteinational Ciiminal Couit
is meant to be a peimanent, global couit of inteinational ciiminal law. Like othei
inteinational tieaties the Rome Statute of the Inteinational Ciiminal Couit makes no
explicit iefeience to amnesty; anu like othei tieaties, this omission expiesses the
ieluctance of the negotiating state paities to commit to such language, anu theiefoie an
awkwaiu compiomise that attempts to uefine the Couit's coie value of
complementaiity of piosecution in such a way that amnesties aie at least inuiiectly
uiscouiageu. The ICC's self-uefineu iole is as a 'backstop' ciiminal venue, anu the
piinciple of complementaiity holus that piefeience will always be given to uomestic
piosecutions foi the ciimes of genociue, ciimes against humanity, wai ciimes, anu
(potentially as of 2u17) ciimes of aggiession, the foui categoiies of inteinational ciime
that the Rome Statute ueteimines to be unuei the ICC's juiisuiction. uiven the obvious
ielevance of uomestic amnesties foi the piinciple of complementaiity, the Rome
Statute's extieme inuiiectness on the topic can be spun as a kinu of cieative ambiguity
28

that consciously iefiains fiom tying the hanus of the ICC's 0ffice of the Piosecutoi, anu

SCSL see Piiscilla Baynei, "Negotiating Peace in Sieiia Leone: Confionting the }ustice Challenge," H%&*%+
:)+ M<>"&(*"+("& O("0)2<% ;%/)+*," 2uu7.
28 Schaif attiibutes this teim to Phillipe Kiisch, Chaiiman of the Rome Biplomatic Confeience. Schaif also
cites the comments of Kofi Annan that it woulu be 'inconceivable' foi the ICC to "unueimine an amnesty-
foi-peace aiiangement by puisuing piosecution in a situation like South Afiica." Kofi Annan, Speech at
the Witwateisianu 0niveisity uiauuation Ceiemony, Sept. 1, 1998, quoteu in Baiiyl Robinson, "Seiving
the Inteiests of }ustice," 12; quoteu heie in Schaif, "Fiom the eXile Files," S67.


2S

that tough cases iegaiuing uomestic amnesties will be the subject of accumulateu case
law as the ICC ieceives iefeiials anu initiates piosecutions of its own.
29

Noie iealistically, howevei, the status of amnesties unuei inteinational ciiminal
law is such an immeuiate anu piessing concein foi the most basic piosecutoiial
functions of the ICC that the Statute's subtlety has enueu up uepiiving the ICC anu its
membei states of a minimally iequisite uegiee of legal claiity, anu the Couit's woik,
fiom its veiy fiist iefeiial, has ieflecteu this absence.
Su
The veiy complex iole playeu by
the ICC's aiiest waiiant against }oseph Kony, leauei of the Loiu's Resistance Aimy in
0ganua, is a uemonstiation of the challenges aiising when a uomestic amnesty has no
6)>%$*(' effect accoiuing to an inteinational piosecutoi.
S1

Aiticle 17 of the Rome Statute expiesses the piinciple of complementaiity by
ueteimining the aumissibility of cases befoie the Couit; specifically the aiticle claiifies
that such cases aie inaumissible wheie "|tjhe case is being investigateu oi piosecuteu
by a State which has juiisuiction ovei it, unless the State is unwilling oi unable
genuinely to caiiy out the investigation oi piosecution." Bence the question aiises of
what the attituue the ICC, in paiticulai the 0ffice of the Piosecutoi, will be in cases
wheie a uomestic amnesty can be inteipieteu as an expiession oi uocumentation of a
state's "unwillingness" to piosecute. The intiouuction of the woiu "genuinely" in the
language of the aiticle beais all the maiks of a cumbeisome negotiateu compiomise, at
once gianting ioom foi maneuvei foi inteinational negotiatois, but also cieating a legal
giey aiea.
Thus, the Couit has the uiscietion to call off a piosecution if the case woulu be
inaumissible unuei Aiticle 17. This coulu aiguably incluue a situation in which a state
paity auopts an amnesty coveiing ICC ciimes. Nost have concluueu that Aiticle 17 is the
piovision of the Rome Statute that offeis the most plausible basis to potentially allow
foi the types of amnesties unuei examination in this chaptei. Foi example, it is an open
question "whethei intense militaiy piessuie not to piosecute falls within the categoiy
of inability oi whethei an unwillingness to jeopaiuise a uemociatic tiansition

29 See |Cassessej
Su See Nichael Schaif, "The Amnesty Exception to the }uiisuiction of the Inteinational Ciiminal Couit,"
Coinell Inteinational Law }ouinal no. S2, 1999.
S1
See Nax Pensky, "Amnesty on Tiial: Impunity, Accountability, anu the Noims of Inteinational Law,"
K*7('$ "&6 @0)#"0 .)0(*('$ 1:1-2, }une 2uu8; Louise Nallinuei, "0ganua at the Ciossioaus: Naiiowing the
Amnesty." Woiking papei 1 fiom N%?)&6 D%2"0($>A ,>&%$*(%$L J+"&$(*()& "&6 H)&:0('* J+"&$:)+>"*()&,"
Institute of Ciiminology anu Ciiminal }ustice, Queen's 0niveisity Belfast, Naich 2uu9.


24

constitutes unwillingness within the teims of the Statute."S77 Be that as it may, the ICC
is inuepenuent. Thus, even wheie an amnesty has been auopteu in goou faith unuei
extieme exigency, the Couit's juuges might ueciue to ignoie the amnesty anu pioceeu
with the case baseu on a stiict inteipietation of unwillingness oi inability.
Theie is no question that the ICC uoes not anu shoulu not iegaiu itself as bounu
in any way by a uomestic amnesty foi a peison who has been investigateu anu inuicteu
in the couise of its own pioceuuies. Such a peison - foi example, Col. Nuammai Qauafi
in Libya, oi }oseph Kony in 0ganua - coulu not expect a national amnesty to have any
extiateiiitoiial effect in the eyes of the couit, but coulu also not expect the couit to
iecognize the amnesty as valiu foi its own puiposes even within Libyan oi 0ganuan
national teiiitoiy (though the question of the execution of an aiiest waiiant, oi moie
likely the impossibility of such an execution, iaises questions about the piactical
meaning of the couit's position.) In iefeience to 0ganua, it also was, anu
continues to be, impossible foi the goveinment to guaiantee that the ICC woulu iespect
any amnesty it wishes to offei to the LRA. 0nce the ICC is opeiating in a countiy -
whethei thiough state iefeiial, Secuiity Council iefeiial, oi Piosecutoiial initiation of
an investigation in iespect of such a ciime in accoiuance with Aiticle 1S - contiol ovei
the solutions necessaiily becomes a shaieu buiuen, anu all conceineu paities entei a
iealm of unceitainty in which politics inevitably compete with law.
S2
4u2.
A moie peitinent question is whethei the couit in geneial, anu the 0ffice of the
Piosecutoi in paiticulai, woulu be piepaieu to accept as legally appiopiiate a uomestic
tiansitional justice appioach that ieplicateu the ielevant quasi-juiiuical accountability
mechanisms in the absence of ciiminal tiials fiom the amnesty expeiiment of South
Afiica. That is, woulu a uomestic tiansitional justice appioach that integiateu
conuitional, inuiviuualizeu amnesties foi peipetiatois of inteinational ciimes meet
Aiticle 17's uefinition of a "genuine unwillingness" to piosecute.
SS


S2
Aiticle 1S of the Rome Statute states: 'The Piosecutoi may initiate investigations /+)/+() >)*< on the
basis of infoimation on ciimes within the juiisuiction of the Couit... If the Pie-Tiial Chambei, upon
examination of the iequest anu the suppoiting mateiial, consiueis that theie is a ieasonable basis to
pioceeu with an investigation, anu that the case appeais to fall within the juiisuiction of the Couit, it shall
authoiize the commencement of the investigation.'
SS
The question of the soit of amnesty that woulu piove acceptable to the 0ffice of the Piosecutoi of the
ICC - that is, that woulu not tiiggei the "genuine unwillingness to piosecute" clause of Aiticle 17 - has
been the subject of a veiy laige amount of scholaily speculation, most iecently in ielation to amnesty
piogiams in Colombia anu Aigentina. See among otheis Nichael Schaif, The Amnesty Exception to the
}uiisuiction of the Inteinational Ciiminal Couit," The Inteinational Ciiminal Couit, 2uu4; Baiiyl
Robinson, "Seiving the Inteiests of }ustice: Amnesties, Tiuth Commissions, anu the Inteinational Ciiminal


2S

0ne coulu aigue that the South Afiican amnesty mouel uiu inueeu pioviue a
mechanism foi piosecution. Those peipetiatois unwilling to satisfy the numeious
iequiiements foi the amnesty application - incluuing a ciiminal confession anu
exhaustive testimony - iemaineu liable to piosecution, as uiu those whose applications
weie iefuseu by the couit-like Amnesty Committee. Anu even in cases wheie such
conuitional, inuiviuualizeu amnesties weie offeieu - wheie selective amnesties in
exchange foi uemanuing conuitions coulu be uocumenteu to contiibute both to laigei
goals of justice anu to conuitions of ielative peace anu secuiity - many commentatois
finu it uifficult to imagine that an inteinational couit woulu attempt to block such a
policy, which in any event woulu iequiie a politically unlikely constellation of events,
incluuing the Piosecutoi's uecision to initiate investigation anu piosecution unuei his
oi hei own initiative (the Y/+)/+() >)*<S piovision of the Rome Statute), anu iefeiial oi
at least non-inteifeience by the 0N Secuiity Council. Piagmatically, such a unilateial
initiative coulu well uemonstiate that the ICC's willingness to intiuue in the couise of
uomestic tiansitional justice piocesses well in hanu woulu be too high a piice foi its
iole as a 'backstop' souice of ciiminal justice.
These incieasingly complex balancing acts between political anu legal conceins
may push the ICC to ieuefine its mission. Rathei than fiaming the Couit's iole as a
pioviuei of inuiviuual accountability, the focus may tuin to the uiiect anu inuiiect
benefits of the Rome Statute fiamewoik as a whole in the iealm of inteinational justice.
Signs of this iebianuing alieauy aie appaient to some uegiee. The ICC is incieasingly
emphasizing, foi example, how the thieat of ICC piosecution can leau to moie piincipleu
peace ueals,4u4 inciease the inteinational ciiminal law component of militaiy
tiaining,4uS anu encouiage changes in uomestic legislation anu piactice thiough what
the piosecutoi's office teims positive complementaiity.4u6 These signs ieflect
awaieness that in the "couit of public opinion," the ICC will lose if it is piimaiily
peiceiveu as a couit, wheieas it will win if it is peiceiveu piimaiily as a lynchpin in a
new global system of justice. As the piosecutoi emphasizeu fiom an eaily stage, a lack of
ICC tiials woulu, paiauoxically, constitute the best eviuence of an effective ICC, as that

Couit," K<+)/%"& G)<+&"0 ): I&*%+&"*()&"0 D"E no. 14, 2uuS; Southwick, Katheiine, "Investigating Wai in
Noithein 0ganua: Bilemmas foi the Inteinational Ciiminal Couit," F"0% G)<+&"0 ): I&*%+&"*()&"0 ,::"(+$
(SummeiFall 2uuS).



26

woulu imply states paities aie able anu willing to ueal with Rome Statute ciimes on
theii own.4u7

/%"(3'.)%"
In the cuiient geo-political constellation, inteinational ciiminal law is not able to
offei cleai guiuance iegaiuing the legality of uomestic amnesties foi inteinational
ciimes. The language of inteinational tieaties, silent on such amnesties, can be only be
inuiiectly inteipieteu as banning such amnesties, by expiessing a nonueiogable uuty to
piosecute such ciimes. This inuiiect ioute has enough aieas of ambiguity anu loopholes
as to make tieaty-baseu aiguments ielatively weak. A slightly stiongei aigument
against the use of amnesty can be founu in customaiy inteinational law, specifically the
ciystallization of a noim of states' obligations to outlaw R<$ ')2%&$ ciimes.
But again, uespite many attempts to ieau the uevelopment of customaiy
inteinational law in this mannei, such a ciystallizeu noim uoes not tianslate uiiectly
into a coiiesponuing noim baiiing uomestic amnesties. A key iequiiement foi such a
ciystallizeu noim, establisheu state piactice, cannot be unequivocally pioven. 0n the
contiaiy, the iise of inteinational ciiminal law is associateu with an inciease in such
amnesties, not a ueciease. The iulings of the inteinational ciiminal tiibunals foi Sieiia
Leone anu the foimei Yugoslavia have offeieu instances wheie amnesties weie
iegaiueu as contiaiy to inteinational law, anu tiacking these legal iulings anu opinions
uoes inuicate an emeiging uimension of ciiminal case law. But the weakness of the
couits' legal aiguments, anu the iaiity of inteinational caselaw in geneial when it comes
to amnesty - not least the lack of any uefinitive position on the pait of the ICC -
piecluue any seiious claim of a new legal noim
The status of amnesty unuei inteinational law is tiuly unsettleu. Inueeu, if theie
is such a thing as an emeigent noim of ciiminal justice, it may be an accountability
noim that moves beyonu a naiiow anu ietiibutivist conception of legal punishment:
given a pyiamiu of accountability, piocesses of uemilitaiization, uisaimament anu
ieintegiation of low-level combatants may encouiage conuitional, inuiviuualizeu
amnesties as a key component, maximizing the effectiveness of othei mechanisms to
ieconcile the goals of secuiity anu those of ciiminal accountability.
Such an accountability noim calling foi a combination of low-level conuitional
amnesties anu high-level manuatoiy piosecutions ceitainly uoes not answei the coie


27

question of the legal status of amnesties, anu in fact iaises significant new questions of
its own (not least, the status in such an appioach of the miu-level of ciiminal
iesponsibility, wheie aiguably many of those most appiopiiately piosecuteu woulu be
founu). But it also highlights a cential challenge facing inteinational ciiminal justice,
which can seive as a piovisional conclusion to this chaptei.
As the global expeiiment with new anu eneigizeu institutions of inteinational
ciiminal justice appioaches its twentieth biithuay, lingeiing questions iemain
conceining the fit, oi the lack of fit, between the paiauigmatic commitments of ciiminal
justice - the ueontological appioach - anu the chaiacteiistic challenges of post-conflict
tiansitions. The foimei is baseu on a ietiibutivist claim that ueseiveu punishment of
peipetiatois is such a poweiful intiinsic goou that it is the souice of a uuty uigent
enough to tiump othei consiueiations.
S4
The lattei involves a bioau, socializeu, anu
uiveise set of events, peisons anu piocesses in which inuiviuual ciiminal acts can
ceitainly always be iuentifieu, but only at the potential cost of a loss of peispective anu
context.
Within this wiuei fiamewoik, the question suiiounuing amnesty is what one can
uo about it to limit the concessions to impunity. Theie aie actually uozens of significant
choices in the uesign anu negotiation of an amnesty that can, anu shoulu, affect oui
evaluation of any inuiviuual amnesty. Such choices make the uiffeience between what
one might chaiacteiize as a piincipleu veisus an unpiincipleu amnesty. At the same
time, it is impoitant to iecognize that even a piincipleu amnesty cannot guaiantee
accountability in piactice. Amnesties aie meiely legal instiuments, anu no moie oi less
likely to be honoieu in the bieach than othei laws. We shoulu juuge states not meiely by
theii auoption of goou laws but also, anu to a much gieatei extent, by theii
implementation of both the lettei anu the spiiit of such laws.


S4
N. Pensky 'Amnesty on Tiial: impunity, accountability, anu the noims of inteinational
law' K*7('$ "&6 @0)#"0 .)0(*('$ 1 (1-2) (2uu8): 1-49