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Amnesty

AMNESTY

The action of a government by which all persons or certain groups of persons who have committed a criminal offense—usually of a political nature that threatens the sovereignty of the government (such asseditionor treason)—are grantedimmunityfrom prosecution.

Amnesty allows the government of a nation or state to "forget" criminal acts, usually before prosecution has occurred. Amnesty has traditionally been used as a political tool of compromise and reunion following a war. An act of amnesty is generally granted to a group of people who have committed crimes against the state, such as treason, rebellion, or desertion from the military. The first amnesty in U.S. history was offered by President george washington, in 1795, to participants in the whiskey rebellion, a series of riots caused by an unpopular excise tax on liquor; a conditional amnesty, it allowed the U.S. government to forget the crimes of those involved, in exchange for their signatures on an oath of loyalty to the United States. Other significant amnesties in U.S. history were granted on account of the Civil and Vietnam Wars.

Because there is no specific legislative or constitutional mention of amnesty, its nature is somewhat ambiguous. Its legal justification is drawn from Article 2, Section 2, of the Constitution, which states, "The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." Because of their common basis, the difference between amnesty and pardon has been particularly vexing. In theory, an amnesty is granted before prosecution takes place, and a pardon after. However, even this basic distinction is blurry—President gerald r. ford, for example, granted a pardon to President richard m. nixon before Nixon was charged with any crime. Courts have allowed the two terms to be used interchangeably.

The earliest examples of amnesty are in Greek and roman law. The best documented case of amnesty in the ancient world occurred in 403 b.c. A long-term civil war in Athens was ended after a group dedicated to reuniting the city took over the government and arranged a general political amnesty. Effected by loyalty oaths taken by all Athenians, and only later made into law, the amnesty proclaimed the acts of both warring factions officially forgotten.

In other nations in which amnesties are accepted parts of the governing process, the power to grant amnesty sometimes lies with legislative bodies. In the United States, granting amnesties is primarily a power of the executive branch, though on some occasions Congress may also initiate amnesties as part of legislation. The Immigration Reform and Control

Act of 1986 (100 Stat. 3359, 8 U.S.C.A. §1101) attempted to reduce the number of aliens illegally entering the United States by punishing employers who knowingly hired them. However, because of concerns voiced by both employers and immigrant community leaders, the act compromised: it contained provisions for an amnesty giving citizenship to illegal immigrants who had been residents for a set period of time.

Though the Supreme Court has given the opinion that Congress can grant an independent amnesty, it has never expressly ruled on the issue. However, the president's power to grant amnesty autonomously has never been in serious question. The president always has recourse to the pardoning powers granted the office by the Constitution.

During the Civil War period, President abraham lincoln offered a series of amnesties without congressional assent to Union deserters, on the condition that they willingly rejoin their regiments. After the war, Lincoln issued a proclamation of amnesty for those who had participated in the rebellion. Though Congress protested the leniency of the plan, it was helpless to alter or halt it. Lincoln's amnesty was limited, requiring a loyalty oath and excluding high-ranking Confederate officers and political leaders. Lincoln hinted at but never offered a broader amnesty. It was not until President andrew johnson's Christmas amnesty proclamation of 1868 that an unconditional amnesty was granted to all participants in the Civil War. Amnesty used in this way fosters reconciliation—in this case, by fully relinquishing the Union's criminal complaints against those participating in the rebellion.

Amnesty was used for a similar purpose at the conclusion of the vietnam war. In 1974, President Ford attempted reconciliation by declaring a conditional amnesty for those who had evaded the draft or deserted the armed forces. The terms of the amnesty required two years of public service (the length of a draft term), and gave evaders and deserters only five months to return to the fold. Many of those whom the amnesty was designed to benefit were dissatisfied, viewing the required service as punishment. On the other hand, many U.S. citizens agreed with President Nixon that any amnesty was out of the question. It was left to President jimmy carter, in 1977, to issue a broad amnesty to draft evaders. Carter argued the distinction that their crimes were forgotten, not forgiven. This qualification makes clear the purpose of an amnesty: not to erase a criminal act, nor to condone or forgive it, but simply to facilitate political reconciliation.

Though an amnesty can be broad or narrow, covering one person or many, and can be seriously qualified (as long as the conditions are not unconstitutional), it cannot grant a license to commit future crimes. Nor can it forgive crimes not yet committed.

further readings

Barcroft, P. 1993. "The Presidential Pardon—A Flawed Solution." Human Rights Law Journal 31 (December): 381–94.

Damico, A. 1975. Democracy and the Case for Amnesty. Gainesville, Fla.: Univ. Presses of Florida.

Hagan, John. 2001. Northern Passage: American Vietnam War Resisters in Canada. Cambridge, Mass.: Harvard Univ. Press.

Kane, Joseph N. 1981. Facts about the Presidents. New York: Wilson.

Norton, M., et al., eds. 1991. A People and a Nation. Boston: Houghton Mifflin.

Slye, Ronald C. 2002. "The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?" Virginia Journal of International Law 43 (fall): 173–247.

Young, Gwen K. 2002. "Amnesty and Accountability." U.C. Davis Law Review 35 (January): 427–82.

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Amnesty

AMNESTY

AMNESTY is the pardon of individuals or categories of people for the violation of law. Article II, Section 2 of the U.S. Constitution gives the president the power to "grant reprieves and pardons for offenses against the United States." In the last quarter of the twentieth century and into the twenty-first, categorical amnesty typically involved issues surrounding the Vietnam War (1946–1975, American involvement 1964–1975) or illegal immigration. During the 1970s, amnesty became a significant subject of debate, as the Vietnam War began to wind down and the domestic problems associated with that conflict required immediate attention. How would the United States deal with perhaps as many as fifty thousand military deserters and draft evaders? Actions taken after earlier wars set numerous precedents. In 1795, George Washington pardoned two participants in the Whiskey Rebellion. Abraham Lincoln and Andrew Johnson issued more than 200,000 such pardons in order to "bind up our nation's wounds" after the Civil War (1861–1865). More recently, Presidents Franklin D. Roosevelt and Harry Truman pardoned several thousand draft evaders from World War II (1939–1945). But at a time when political passions deeply divided the nation, would history offer helpful instruction for those involved in the heated political disputes of the present?

While participation in the Vietnam War continued, presidents refused to consider amnesty, but as soon as American soldiers were out of harm's way after 28 March 1973, the issue became less of a political hot potato. Thus, as the 1972 election approached, Democratic party nominee George McGovern was portrayed as the counter-culture candidate who favored "amnesty, abortion and acid." But after Richard Nixon's resignation and Gerald Ford's pardon of the former president in September 1974, it became easier to broach the amnesty question. Still, when Ford offered conditional amnesty to military deserters and draft evaders, many combat veterans sent him their Vietnam medals in protest. Ford's program required unconvicted military deserters and draft evaders to turn themselves in to the government, reaffirm their allegiance to the United States, and then perform service jobs for two years. Those convicted of crimes associated with desertion and evasion would have their cases reviewed by a presidential clemency board. Jimmy Carter, in one of his first acts as president, granted a "full, complete, and unconditional pardon" to draft dodgers and deserters on 21 January 1977, thereby drawing to a close the legal, if not the political, antagonisms of the Vietnam War. A generation later, however, the issue of Vietnam service generated much less passion, as evidenced by Bill Clinton's election, even though he had legally (but perhaps irregularly) dodged military service during the Vietnam War, and by George W. Bush's election, even though he avoided Vietnam service by joining the Texas Air National Guard.

BIBLIOGRAPHY

Baskir, Lawrence M. and William A. Strauss. Reconciliation After Vietnam: A Program of Relief for Vietnam Era Draft and Military Offenders. Notre Dame, Ind.: University of Notre Dame Press, 1977.

Polner, Murray, ed. When Can I Come Home? A Debate on Amnesty for Exiles, Antiwar Prisoners, and Others. New York: Anchor Books, 1972.

Schardt, Arlie, William A. Rusher, and Mark O. Hatfield. Amnesty? The Unsettled Question of Vietnam. Croton-on-Hudson, N.Y.: Sun River Press, 1973.

ThomasReins

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amnesty

amnesty (ăm´nəstē), in law, exemption from prosecution for criminal action. It signifies forgiveness and the forgetting of past actions. Amnesties are usually extended to a group of persons during a period of prolonged disorder or insurrection. The criminals are offered a promise of immunity from prosecution if they will abandon their unlawful activities. After a revolution or civil war the victorious side will often extend amnesty to the losers; e.g., the United States granted a qualified amnesty to the Confederate forces after the Civil War. An amnesty is distinguished from a pardon, which is an act of forgiveness after the criminal has already been convicted.

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amnesty

am·nes·ty / ˈamnistē/ • n. (pl. -ties) an official pardon for people who have been convicted of political offenses: the new law granted amnesty to those who illegally left the country. ∎  an undertaking by the authorities to take no action against specified offenses or offenders during a fixed period: a month-long weapons amnesty. • v. (-ties, -tied) [tr.] grant an official pardon to.

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amnesty

amnesty XVI. — F. amnestie or L. amnēstia — Gr. amnēstíā oblivion; see prec. and -Y3.

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amnesty

amnestybanditti, bitty, chitty, city, committee, ditty, gritty, intercity, kitty, nitty-gritty, Pitti, pity, pretty, shitty, slitty, smriti, spitty, titty, vittae, witty •fifty, fifty-fifty, nifty, shifty, swiftie, thrifty •guilty, kiltie, silty •flinty, linty, minty, shinty •ballistae, Christie, Corpus Christi, misty, twisty, wristy •sixty •deity, gaiety (US gayety), laity, simultaneity, spontaneity •contemporaneity, corporeity, femineity, heterogeneity, homogeneity •anxiety, contrariety, dubiety, impiety, impropriety, inebriety, notoriety, piety, satiety, sobriety, ubiety, variety •moiety •acuity, ambiguity, annuity, assiduity, congruity, contiguity, continuity, exiguity, fatuity, fortuity, gratuity, ingenuity, perpetuity, perspicuity, promiscuity, suety, superfluity, tenuity, vacuity •rabbity •improbity, probity •acerbity • witchetty • crotchety •heredity •acidity, acridity, aridity, avidity, cupidity, flaccidity, fluidity, frigidity, humidity, hybridity, insipidity, intrepidity, limpidity, liquidity, lividity, lucidity, morbidity, placidity, putridity, quiddity, rabidity, rancidity, rapidity, rigidity, solidity, stolidity, stupidity, tepidity, timidity, torpidity, torridity, turgidity, validity, vapidity •commodity, oddity •immodesty, modesty •crudity, nudity •fecundity, jocundity, moribundity, profundity, rotundity, rubicundity •absurdity • difficulty • gadgety •majesty • fidgety • rackety •pernickety, rickety •biscuity •banality, duality, fatality, finality, ideality, legality, locality, modality, morality, natality, orality, reality, regality, rurality, tonality, totality, venality, vitality, vocality •fidelity •ability, agility, civility, debility, docility, edibility, facility, fertility, flexility, fragility, futility, gentility, hostility, humility, imbecility, infantility, juvenility, liability, mobility, nihility, nobility, nubility, puerility, senility, servility, stability, sterility, tactility, tranquillity (US tranquility), usability, utility, versatility, viability, virility, volatility •ringlety •equality, frivolity, jollity, polity, quality •credulity, garrulity, sedulity •nullity •amity, calamity •extremity • enmity •anonymity, dimity, equanimity, magnanimity, proximity, pseudonymity, pusillanimity, unanimity •comity •conformity, deformity, enormity, multiformity, uniformity •subcommittee • pepperminty •infirmity •Christianity, humanity, inanity, profanity, sanity, urbanity, vanity •amnesty •lenity, obscenity, serenity •indemnity, solemnity •mundanity • amenity •affinity, asininity, clandestinity, divinity, femininity, infinity, masculinity, salinity, trinity, vicinity, virginity •benignity, dignity, malignity •honesty •community, immunity, importunity, impunity, opportunity, unity •confraternity, eternity, fraternity, maternity, modernity, paternity, taciturnity •serendipity, snippety •uppity •angularity, barbarity, bipolarity, charity, circularity, clarity, complementarity, familiarity, granularity, hilarity, insularity, irregularity, jocularity, linearity, parity, particularity, peculiarity, polarity, popularity, regularity, secularity, similarity, singularity, solidarity, subsidiarity, unitarity, vernacularity, vulgarity •alacrity • sacristy •ambidexterity, asperity, austerity, celerity, dexterity, ferrety, posterity, prosperity, severity, sincerity, temerity, verity •celebrity • integrity • rarity •authority, inferiority, juniority, majority, minority, priority, seniority, sonority, sorority, superiority •mediocrity • sovereignty • salubrity •entirety •futurity, immaturity, impurity, maturity, obscurity, purity, security, surety •touristy •audacity, capacity, fugacity, loquacity, mendacity, opacity, perspicacity, pertinacity, pugnacity, rapacity, sagacity, sequacity, tenacity, veracity, vivacity, voracity •laxity •sparsity, varsity •necessity •complexity, perplexity •density, immensity, propensity, tensity •scarcity • obesity •felicity, toxicity •fixity, prolixity •benedicite, nicety •anfractuosity, animosity, atrocity, bellicosity, curiosity, fabulosity, ferocity, generosity, grandiosity, impecuniosity, impetuosity, jocosity, luminosity, monstrosity, nebulosity, pomposity, ponderosity, porosity, preciosity, precocity, reciprocity, religiosity, scrupulosity, sinuosity, sumptuosity, velocity, verbosity, virtuosity, viscosity •paucity • falsity • caducity • russety •adversity, biodiversity, diversity, perversity, university •sacrosanctity, sanctity •chastity •entity, identity •quantity • certainty •cavity, concavity, depravity, gravity •travesty • suavity •brevity, levity, longevity •velvety • naivety •activity, nativity •equity •antiquity, iniquity, obliquity, ubiquity •propinquity

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Amnesty

AMNESTY

Amnesty is the blanket forgiveness of a group of people for some offense, usually of a political nature. Although there is a technical distinction between an amnesty, which "forgets" the offense, and a pardon, which remits the penalty, historical practice and common usage have made the terms virtually interchangeable. In the United States, amnesty may be granted by the President (under the pardoning power) or by Congress (as necessary and proper to the carrying out of any of several powers). Amnesty may be granted before or after conviction, and may be conditional or unconditional. But neither Congress nor the President may grant amnesty for offenses against state law.

The first instance of amnesty under the Constitution was extended in 1801 by President thomas jefferson to persons convicted or charged under the alien and sedition acts. Between 1862 and 1868, Presidents abraham lincoln and andrew johnson issued a series of six proclamations of conditional amnesty for southern rebels. Congress specifically authorized the first three but repealed the authorizing statute in 1867; President Johnson issued the last three on his own authority alone. In the test oath cases (1867), the Supreme Court struck down, as an unconstitutional interference with the pardoning power, an attempt by Congress to limit the effect of Johnson's amnesty. In 1872, exercising its power under section 3 of the fourteenth amendment, Congress passed the Amnesty Act restoring the civil rights of most rebels.

President gerald r. ford granted conditional amnesty in 1974 to military deserters and draft evaders of the vietnam war period. The terms of the amnesty required case-by-case determination by a special Presidential Clemency Board empowered to direct performance by applicants of alternative public service. Ford acted on his own authority after Congress failed to approve any of several amnesty proposals.

Dennis J. Mahoney
(1986)

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Amnesty

Amnesty

In order to end an international or internal conflict, negotiations often must be held with the very leaders who are responsible for war crimes and crimes against humanity. When this is the case, some argue that insisting on criminal prosecutions can prolong the conflict, resulting in more deaths, destruction, and human suffering. Reflecting this view, peace arrangements reached over the past two decades in Argentina, Cambodia, Chile, El Salvador, Guatemala, Haiti, Sierra Leone, South Africa, and Uruguay have granted amnesty to members of former regimes who allegedly had committed international crimes. With respect to Cambodia, El Salvador, Haiti, and South Africa, the United Nations pushed for, helped negotiate, and/or endorsed the granting of amnesty as a means of restoring peace and democratic government.

The term amnesty is derived from the Greek word amnestia, meaning forgetfulness or oblivion. Legally, amnesty is an act of sovereign power immunizing persons from criminal prosecution for past offenses. The practical equivalent of amnesty occurs when asylum is granted to a former leader by a neighboring state, as in the case of former Ugandan ruler Idi Amin in Saudi Arabia, former Haitian leader Jean Claude "Baby Doc" Duvalier in France, former Ethiopian leader Megistu Haile Mariam in Zimbabwe, former Haitian leader General Raoul Cedras in Panama, and former Liberian leader Charles Taylor in Nigeria.

Interests Favoring Amnesty

The leaders of all parties to a conflict must agree to cooperate in order to end the fighting and halt violations of international humanitarian law. However, they have no incentive to agree to a peace settlement if, following the agreement, they could find themselves or their close associates facing potential life imprisonment. Three case studies—Haiti, South Africa, and Liberia—show that the offer of amnesty or asylum may induce human rights violators to agree to peace and to relinquish power.

Haiti

From 1990 to 1994 Haiti was ruled by a military regime, headed by General Raoul Cedras and Brigadier General Philippe Biamby that executed over three thousand civilian political opponents and tortured hundreds of others. The United Nations mediated negotiations at Governors Island in New York Harbor, during which Haiti's military leaders agreed to relinquish power and permit the return of democratically elected President Jean-Bertrand Aristide in exchange for a full amnesty for the members of the military regime and a lifting of the economic sanctions imposed by the UN Security Council. Under pressure from the UN mediators, Aristide agreed to the amnesty clause of the Governors Island Agreement. The UN Security Council approved the agreement, which it later said, "constitutes the only valid framework for resolving the crisis in Haiti." When the military leaders initially failed to comply with the Governors Island Agreement, on July 31, 1994, the Security Council took the extreme step of authorizing an invasion of Haiti by a multinational force. On the eve of the invasion, September 18, 1994, General Cedras agreed to retire his command "when a general amnesty will be voted into law by the Haitian parliament." The amnesty permitted Aristide to return to Haiti and reinstate a civilian government, the military leaders left the country, much of the military surrendered their arms, and most of the human rights abuses promptly, if temporarily, ended.

South Africa

Until 1994 black South Africans were routinely abused under the then-operative, segregationist system known as apartheid. Facing the prospect of civil war, the outgoing administration, then headed by F. W. de Klerk, made some form of amnesty a condition for the peaceful transition of power. The leaders of the majority black population decided that the commitment to afford amnesty was a fair price to pay for a relatively peaceful transition to full democracy. In accordance with the negotiated settlement between the major parties, on July 19, 1995, the South African Parliament created a Truth and Reconciliation Commission, consisting of a Committee on Human Rights Violations, a Committee on Amnesty, and a Committee on Reparation and Rehabilitation. Under this process, amnesty would be available only to individuals who personally applied for it and who fully disclosed the facts of their apartheid crimes. After conducting 140 public hearings and considering 20,000 written and oral submissions, the South African Truth Commission published a 2,739-page report of its findings on October 29, 1998. Most observers believe the amnesty in South Africa helped to defuse tensions and avoid a civil war. Others believe it was a means for both sides to cover up crimes they had committed.

Liberia

Beginning in 1980 Liberia experienced a series of bloody coups. Factional fighting repeatedly flared up during the 1990s. Conflict under the presidency of Charles Taylor left more than 100,000 Liberians dead between 1997 and 2002. In August of 2003, Taylor was indicted by the Special Court for Sierra Leone on the charge of "bearing the greatest responsibility" for war crimes and crimes against humanity in Sierra Leone, which shares a border with Liberia. With rebel troops on the verge of taking over the populous Liberian capitol of Monrovia, Taylor was induced to relinquish power and leave Liberia in return for a guarantee of asylum in Nigeria. This action immediately brought the fighting in Liberia to a halt, and thereby may have saved the lives of hundreds of thousands of civilians in Monrovia who otherwise would have been caught in the crossfire had Taylor and his supporters been forced to make a last stand against the rebels.

Amnesty with Accountability?

As in both Haiti and South Africa, the offering of amnesty may be tied to accountability mechanisms. Sometimes the concerned governments have made monetary reparations to the victims and their families, established truth commissions to document the abuses (and sometimes identify perpetrators by name), or instituted employment bans and purges (referred to as "lustration") that keep such perpetrators from positions of public trust. While not the same as criminal prosecution, these mechanisms may encompass much of what justice is intended to accomplish: prevention, deterrence, punishment, and rehabilitation. Indeed, some experts believe that these mechanisms do not merely constitute "a second best approach" when prosecution is impracticable, but that in many situations they may be better suited to achieving the aims of justice.

The Benefits of Prosecution

Although providing amnesty or asylum to perpetrators may sometimes be seen as necessary to achieve peace, there are several important countervailing considerations favoring prosecution. In particular, prosecuting persons responsible for violations of international humanitarian law can serve to discourage future human rights abuses, deter vigilante justice, and reinforce respect for law and the new democratic government. Although such prosecutions might initially provoke resistance, many analysts believe that national reconciliation cannot take place as long as justice is foreclosed. Professor Cherif Bassiouni, chairman of the UN investigative Commission for Yugoslavia and author of Searching for Peace and Achieving Justice: The Need for Accountability, has said that "if peace is not intended to be a brief interlude between conflicts," then it must be accompanied by justice.

Failure to prosecute leaders responsible for human rights abuses may breed contempt for the law and encourage future violations. The UN Commission on Human Rights and its Sub-Commission issued a Report on the Consequences of Impunity, in which it concluded that impunity is one of the main reasons for the continuation of grave violations of human rights throughout the world. Fact-finding reports on Chile and El Salvador indicate that the granting of amnesty or impunity in those countries had led to an increase in abuses.

A new or reinstated democracy needs legitimacy, which in turn requires a fair, credible, and transparent accounting of what crimes may have taken place and who was responsible during the pre-democratic regime. Criminal trials, especially in cases involving widespread and systematic abuses, can generate just such a comprehensive record of the nature and extent of violations, how they were planned and executed, the fate of individual victims, who gave the orders, and who carried them out. While there are various means to develop the historic record of such abuses, the most authoritative rendering of the truth occurs through the crucible of a trial that accords full due process. United States Supreme Court Justice Robert Jackson, who served as Chief Prosecutor at the Nuremberg Trials, underscored the logic of this proposition in his Report to the President, in which he stated that the most important legacy of the Nuremberg trial was the documentation of Nazi atrocities "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future." According to Jackson, the establishment of an authoritative record of abuses that would endure the test of time and withstand the challenge of revisionism required proof "of incredible events by credible evidence."

There is also a responsibility to provide justice to the victims and their families. Serious crimes against persons, including rape and murder, require holding the violators accountable for their acts. Prosecuting and punishing the violators gives significance to the victims' suffering and serve as partial remedy for their injuries. Moreover, prosecutions help restore the victims' dignity and prevent private acts of revenge by those who, in the absence of justice, might take it into their own hands.

Failure to punish former leaders who were responsible for widespread human rights abuses encourages cynicism about the rule of law and distrust toward the political system. To the victims of human rights crimes, amnesty represents the ultimate in hypocrisy. When those with power are seen to be above the law, the ordinary citizen will never come to believe in the principle of the rule of law as a fundamental necessity in a democratic country.

Finally, amnesty risks encouraging rogue regimes in other parts of the world to engage in gross abuses. Richard Goldstone, the former prosecutor of the International Criminal Tribunal for the Former Yugoslavia has concluded that the failure of the international community to prosecute Pol Pot, Idi Amin, Saddam Hussein, and Mohammed Aidid, among others, encouraged the Serbs to launch their policy of ethnic cleansing in the former Yugoslavia with the expectation that they would not be held accountable for their international crimes. When the international community encourages or endorses an amnesty for human rights abuses, it sends a signal to other regimes that they have nothing to lose by instituting repressive measures—if things start going badly, they can always bargain away their crimes by agreeing to peace.

Overriding the Grant of Amnesty

In a few narrowly defined situations there is an international legal obligation to prosecute and failure to prosecute can itself amount to an international wrong. An amnesty given to the members of a former regime could be invalidated in a proceeding before the state's domestic courts or an international forum. Moreover, it would be inappropriate for an international criminal court to defer to a national amnesty if the amnesty violates obligations contained in the very treaty that makes up the subject matter of the court's jurisdiction.

The prerogative of a state to issue an amnesty for an offense can be circumscribed by treaties to which the state is a party. Several international conventions clearly include a duty to prosecute the humanitarian or human rights crimes defined therein, including the grave-breaches provisions of the 1949 Geneva Conventions, the Genocide Convention, and the Torture Convention. When these Conventions are applicable, the granting of amnesty or asylum to persons responsible for committing the crimes defined therein would constitute a breach of a treaty obligation for which there can be no excuse or exception.

The 1949 Geneva Conventions

Each of the four Geneva Conventions negotiated in 1949 contains a specific enumeration of "grave breaches," which are war crimes for which there is individual criminal liability and for which states have a corresponding duty to prosecute or extradite. Grave breaches include willful killing, torture, or inhuman treatment, willfully causing great suffering or serious injury to body or health, extensive destruction of property not justified by military necessity, willfully depriving a civilian of the rights of fair and regular trial, and unlawful confinement of a civilian.

Parties to the Geneva Conventions have an obligation to search for, prosecute, and punish perpetrators of grave breaches of the Geneva Conventions, unless they choose to hand over such persons for trial by another state party. The Commentary to the Geneva Conventions, which is the official history of the negotiations leading to the adoption of these treaties, confirms that the obligation to prosecute grave breaches is "absolute," meaning that signatories to the conventions can under no circumstances grant perpetrators immunity or amnesty from prosecution for grave breaches of the conventions.

States or international tribunals may prosecute persons who commit war crimes in internal armed conflicts, whereas the duty to prosecute grave breaches under the Geneva Conventions is limited to the context of international armed conflict. There is a high threshold of violence necessary to constitute a genuine armed conflict, as distinct from lower level disturbances such as riots or isolated and sporadic acts of fighting. Moreover, to be an international armed conflict, the situation must constitute an armed conflict involving two or more nations, or a partial or total occupation of the territory of one nation by another.

The Genocide Convention

Most of the countries of the world are party to the Genocide Convention, which entered into force on January 12, 1952, and the International Court of Justice has determined that the substantive provisions of the Convention constitute customary international law that is binding on all states. Like the Geneva Conventions, the Genocide Convention imposes an obligation to prosecute persons responsible for genocide as defined in the Convention. It says that all persons who commit genocide shall be punished, irrespective of their official position. Furthermore, states are required to enact legislation and to provide effective penalties for criminal prosecutions of genocide.

The Torture Convention

Although the Torture Convention entered into force in 1987, it has not been widely ratified and currently has less than ninety state parties. The Torture Convention requires each state party to ensure that all acts of torture are offenses under its internal law, establish its jurisdiction over such offenses in cases where the alleged offender is present in a state's territory, and if such a state does not extradite the alleged offender, the convention requires it to submit the case to its competent authorities for the purpose of prosecution. Although there is no comparable treaty requiring states to prosecute crimes against humanity generally, where there are specific allegations that the crime against humanity included systematic acts of torture, and where the relevant states are parties to the Torture Convention, the granting of amnesty or asylum would violate the treaty's clear duty to prosecute or extradite.

General Human Rights Conventions

General human rights conventions include the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the American Convention on Human Rights. Although these treaties do not expressly require states to prosecute violators, they do obligate states to ensure the rights enumerated within the conventions. There is growing recognition in the jurisprudence of the treaty bodies responsible for monitoring enforcement of these conventions and the writings of respected commentators that the duty to ensure rights implies a duty to hold specific violators accountable for at least certain kinds of violations.

Yet, a careful examination of the jurisprudence of these bodies suggests that methods of obtaining specific accountability other than criminal prosecutions would meet the requirement of ensuring the rights enumerated in the various conventions. This jurisprudence indicates that a state must fulfill five obligations in confronting gross violations of human rights committed by a previous regime:

  1. investigate the identity, fate and whereabouts of victims;
  2. investigate the identity of major perpetrators;
  3. provide reparation or compensation to victims;
  4. take affirmative steps to ensure that human rights abuse does not recur; and
  5. punish those guilty of human rights abuse.

Punishment can take many noncriminal forms, including imposition of fines, removal from office, reduction of rank, and forfeiture of government or military pensions and/or other assets.

Universal Jurisdiction

In the absence of a treaty containing the duty to extradite or prosecute, so-called universal jurisdiction is generally thought to be permissive, not mandatory. Yet, several commentators and human rights groups have recently taken the position that customary international law not only establishes permissive jurisdiction over perpetrators of crimes against humanity, but also requires their prosecution and conversely prohibits the granting of amnesty to such persons.

Commentators often cite the UN Declaration on Territorial Asylum (UN General Assembly Resolution 2312) as the earliest international recognition of a legal obligation to prosecute perpetrators of crimes against humanity. The declaration provides that "states shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a . . . crime against humanity." Yet, according to the negotiating record of this resolution, as discussed in the United Nations Year Book of 1967:

[t]he majority of members stressed that the draft declaration under consideration was not intended to propound legal norms or to change existing rules of international law, but to lay down broad humanitarian and moral principles upon which States might rely in seeking to unify their practices relating to asylum (p. 759).

This evidences that, from the onset, the General Assembly resolutions concerning crimes against humanity were intended to be aspirational, not binding. To the extent any state practice in this area is widespread, it is the practice of granting amnesties or de facto impunity to those who commit crimes against humanity. That the United Nations itself has felt free of legal constraints in endorsing recent amnesty for peace deals in situations involving crimes against humanity confirms that customary international law has not yet crystallized in this area.

Amnesty and the International Criminal Court (ICC)

At the preparatory conference for the establishment of the permanent international criminal court in August 1997, the U.S. Delegation circulated an informal proposal (or "nonpaper") suggesting that the proposed permanent court should take into account amnesties in the interest of international peace and national reconciliation when deciding whether to exercise jurisdiction over a situation or to prosecute a particular offender. According to the U.S. text, the policies favoring prosecution of international offenders must be balanced against the need to close "a door on the conflict of a past era" and "to encourage the surrender or rein-corporation of armed dissident groups," thereby facilitating the transition to democracy. While the U.S. proposal met with criticism from many quarters, the final text of the Rome Statute contains several ambiguously drafted provisions which, for better or worse, could potentially be interpreted as codifying the U.S. proposal.

The preamble of the Rome Statute suggests that deferring a prosecution because of the existence of a national amnesty would be incompatible with the purpose of the ICC, namely to ensure criminal prosecution of persons who commit serious international crimes. Yet, notwithstanding this preambular language, there are several articles of the Rome Statute that might be read as permitting the court under certain circumstances to recognize an amnesty exception to its jurisdiction. The apparent conflict between these articles and the preamble reflect the schizophrenic nature of the negotiations at Rome: The preambular language and the procedural provisions were negotiated by entirely different drafting groups, and in the rush of the closing days of the Rome Conference, the drafting committee never fully integrated and reconciled the separate portions of the Statute.

With respect to a potential amnesty exception, the most important provision of the Rome Statute is Article 16. Under that article, the international criminal court would be required to defer to a national amnesty if the Security Council adopts a resolution under Chapter VII of the United Nations Charter requesting the court not to commence an investigation or prosecution, or to defer any proceedings already in progress.

The Security Council has the legal authority to require the court to respect an amnesty if two requirements are met. First, the Security Council must have determined the existence of a threat to the peace, a breach of the peace, or an act of aggression under Article 39 of the UN Charter. Second, the resolution requesting the court's deferral must be consistent with the purposes and principles of the United Nations with respect to maintaining international peace and security, resolving threatening situations in conformity with principles of justice and international law, and promoting respect for human rights and fundamental freedoms under Article 24 of the UN Charter.

The decision of the Appeals Chamber of the Yugoslavia Tribunal in the case of Dusko Tadic suggests that the ICC could assert its authority to independently assess whether these two requirements were met as part of its incidental power to determine the propriety of its own jurisdiction. Jose Alvarez, a commentator writing of the Tadic appeal decision, has said that this decision "strongly support[s] those who see the UN Charter not as unblinkered license for police action but as an emerging constitution of enumerated, limited powers subject to the rule of law" (1969, p. 249). It is possible, then, that the international criminal court would not necessarily be compelled by the existence of a Security Council Resolution to terminate an investigation or prosecution, were it to find that an amnesty contravenes international law.

While an amnesty accompanied by the establishment of a truth commission, victim compensation, and lustration might be in the interests of justice in the broad sense, it would nonetheless be in contravention of international law where the grave breaches provisions of the 1949 Geneva Conventions or the Genocide Convention are applicable. It is especially noteworthy that the Geneva Conventions require parties "to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Convention," the Genocide Convention requires parties "to provide effective penalties for persons guilty of genocide," and the Torture Convention requires parties "to make these offenses punishable by appropriate penalties which take into account their grave nature."

This would suggest that the International Criminal Court might not defer to the UN Security Council under Article 16 of the Rome Statute where the accused is charged with grave breaches of the 1949 Geneva Conventions, the crime of genocide, or torture. Yet, a counter argument can be made that the Rome Statute codifies only the substantive provisions of the 1949 Geneva Conventions and the Genocide Convention, and does not incorporate those procedural aspects of the Conventions that require prosecution. Accordingly, the nature of the charges might constitute a factor to be considered, but would not necessarily be a bar to recognizing an amnesty.

Where the UN Security Council has not requested the international criminal court to respect an amnesty and thereby to terminate a prosecution, the court's prosecutor may choose to do so under Article 53 of the Rome Statute. That article permits the prosecutor to decline to initiate an investigation (even when a state has filed a complaint) if the prosecutor has concluded that there are "substantial reasons to believe that an investigation would not serve the interests of justice." However, the decision of the prosecutor under Article 53 is subject to review by the pre-trial chamber of the court. In reviewing whether respecting an amnesty and not prosecuting would better serve the interests of justice, the pre-trial chamber would have to evaluate the benefits of a particular amnesty and consider whether there is an international legal obligation to prosecute the offense.

When neither the UN Security Council nor the prosecutor have requested the International Criminal Court to defer to a national amnesty, the concerned state can attempt to raise the issue under Article 17(1)(a) of the Rome Statute. That article requires the court to dismiss a case where "the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." It is significant that the article requires an investigation, but does not specify that it be a criminal investigation. The concerned state could argue that a truth commission (especially one modeled on that of South Africa) constitutes a genuine investigation. On the other hand, subsection (2) of the article suggests that the standard for determining that an investigation is not genuine is whether the proceedings are "inconsistent with an intent to bring the person concerned to justice"—a phrase which, read together with the Preamble to the Treaty, might be interpreted as requiring criminal proceedings.

Conclusion

Nearly a decade ago, David J. Scheffer, then U.S. Ambassador-at-Large for War Crimes Issues publicly remarked: "[o]ne must understand that amnesty [and asylum] are always on the table in [peace] negotiations." In his view, there are frequently no legal constraints to the negotiation of an amnesty for peace deal. This is because the international procedural law imposing a duty to prosecute is far more limited than the substantive law establishing international offenses. But there are situations, such as the cases of Slobodan Milosevic of Serbia and Saddam Hussein of Iraq—each accused of grave breaches of the Geneva Conventions and genocide—where the international procedural law would rule out amnesty or asylum as a legitimate option for the peacemakers. Moreover, even in situations where amnesties do not contravene an applicable international obligation to prosecute, peacemakers must recognize that amnesties vary greatly. Some, as in South Africa, which are closely linked to mechanisms for providing accountability and redress, may be a legitimate diplomatic tool; others, as with the grant of asylum in 2003 for Charles Taylor in Nigeria, may be widely viewed as just another case of former leader "getting away with murder."

SEE ALSO Impunity; National Laws; Prosecution; Sierra Leone Special Court; Truth Commissions; Universal Jurisdiction

BIBLIOGRAPHY

Akhavan, Payam (1996). "The Yugoslavia Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond." Human Rights Quarterly 19:259–282.

Alverez, Jose (1996). "Nuremberg Revisited: The Tadic Case." European Journal of International Law 7:245–255.

Bassiouni, M. Cherif (1996). "Searching for Peace and Achieving Justice: The Need for Accountability." Law and Contemporary Problems 59:9–22.

Minow, Martha (1998). Between Vengeance and Forgiveness. Boston: Beacon Press.

Morris, Virginia, and Michael P. Scharf (1995). An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia. Irving-on-Hudson, N.Y.: Transnational Publishers.

Orentlicher, Dianne (1991). "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime." Yale Law Journal 100:2537–2577.

Roht-Arriaza, Naomi (1990). "State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law." California Law Review 78:451–481.

Roht-Arriaza, Naomi (1995). Impunity and Human Rights in International Law and Practice. New York: Oxford University Press.

Scharf, Michael P. (1996). "The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes." Law and Contemporary Problems 59:41–61.

Scharf, Michael P. (1997). "The Case for a Permanent International Truth Commission." Duke Journal of Comparative and International Law 7:375–400.

Scharf, Michael P. (1999). "The Amnesty Exception to the Jurisdiction of the International Criminal Court." Cornell International Law Journal 32:507–527.

Simma, Bruno (1995). International Human Rights and General International Law: A Comparative Analysis. New York: Oxford University Press.

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Michael P. Scharf

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