Amnesties
An amnesty is a decree enacted by the authorities of a State that prescribes official disregard for one or more categories of offenses and cancels any penal consequences that would normally result from such acts.
In the case of a non-international armed conflict, international law encourages the granting of amnesties at the end of hostilities, stating that “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” (APII Art. 6.5). Rule 159 of the 2005 ICRC customary IHL study makes this provision binding on all States in the case of non-international armed conflict. These rules concern members of non-state armed groups. They cover their direct participation in the hostilities but exclude persons suspected of or sentenced for war crimes.
At the same time that humanitarian law sets forth amnesties as a measure of clemency—with the goal of favoring national reconciliation and a return to peace—it grants a central position to the importance of justice and the prosecution and punishment of certain serious crimes committed in the context of these conflicts. It forbids the application of amnesties to grave breaches of humanitarian law and establishes rules to combat impunity for the perpetrators of these crimes, who are often persons of high political or military ranking or who acted on the orders of their superiors.
The 1949 Geneva Conventions forbid States from absolving themselves or other States of any liability incurred with respect to grave breaches of humanitarian law (GCI Art. 51, GCII Art. 52, GCIII Art. 131, and GCIV Art. 148). Furthermore, since States party to the Conventions have undertaken to penalize such breaches, they may not grant amnesties for these crimes, whether by enacting national laws or in the context of negotiating peace accords.
States are under the obligation to enforce effective penal sanctions for war crimes committed during a conflict, no matter who the perpetrators were (GCI Art. 49, GCII Art. 50, GCIII Art. 129, and GCIV Art. 146), and many of these crimes are not subject to any statute of limitations. The fact that an individual committed a crime pursuant to an order issued by a superior in no way relieves the perpetrator of his or her individual criminal responsibility. Superiors are also criminally accountable if they fail to take measures to prevent or punish the commission of these crimes by persons under their authority.
This obligation to prevent and punish individuals accused of certain crimes is also entrenched in certain conventions applicable in times of peace, such as in the case of torture and genocide.
Amnesties are national measures that do not preclude other States from initiating legal procedures against the alleged perpetrators of crimes that are considered of an international nature.
▸ Impunity ▸ Judicial guarantees ▸ Non-applicability of statutory limitations ▸ Responsibility ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity
For Additional Information: Bassiouni, Cherif. “Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights.” In Post Conflict Justice , edited by Cherif Bassiouni, 3–54. Ardsley, NY: Transnational, 2002.
Chigara, Ben. Amnesty in International Law . Harlow, UK: Longman, 2002.
Matwijkiw, Anja. “A Philosophical Perspective on Rights, Accountability and Post-conflict Justice: Setting Up the Premises.” In Post Conflict Justice , edited by Cherif Bassiouni, 155–99. Ardsley, NY: Transnational, 2002.
Naqui, Yasmin. “Amnesty for War Crimes: Defining the Limits of International Recognition.” International Review of the Red Cross 85 (2003): 583–624.
O’Shea, Andreas. Amnesty for Crimes in International Law and Practice . The Hague: Kluwer Law International, 2002.