RICR SEPTEMBRE IRRC SEPTEMBER 2003 VOL.

85 N°851 583

Amnesty for war crimes: Defining the limits of

international recognition

YASMIN NAQVIV

Criminal prosecution of those accused of committing war crimes is a

fundamental aspect of a victim's right to justice. However, in armed con-
flicts where serious violations of the laws of war have been committed on a
massive scale, the notion of remedial or retributive justice1 for victims of
war crimes often has to be balanced against the need of the territorial State
to deal effectively and progressively with past atrocities and not to provoke
or maintain further violence. In these circumstances a restorative justice
approach incorporating limited amnesties, focusing on the normative rather
than the punitive objectives of criminal law, may be the more appropriate
model.2
The complex issue of the legality of amnesties3 for war crimes4 under
international law and the related question of whether amnesty laws, agree-
ments or practices may be given de jure or de facto recognition5 by foreign or
international courts is coming to a head. Amnesties designed to preclude
the prosecution of persons suspected or accused of war crimes usually take
the form of legislative or constitutional acts of States, or are contained in
treaties or political agreements. However, other State practice may also pre-
vent domestic or international courts from adjudicating war crimes cases,
such as decisions not to exercise jurisdiction and Security Council exemp-
tions. In addition, certain principles of international law may bar prosecu-
tions for war crimes, such as immunities for State officials.
As a case in point, at the height of the recent crisis in Liberia former
Liberian President Charles Taylor, indicted for war crimes by the United
Nations-sponsored Special Court for Sierra Leone, was asking for the

* Ph.D. candidate (International Law), Graduate Institute of International Studies, Geneva; DES
International Relations (international Law), Graduate Institute of International Studies, B.A./LLB. (Hons)
University of Tasmania, Australia. The author is currently working for the International Committee of the Red
Cross with the editorial staff of the International Review of the Red Cross.
584 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

indictment to be removed as a condition for leaving the presidency.6 Had

this deal been accepted, the removal of the indictment would not strictly
speaking constitute an amnesty in the sense of a national law or negotiated
agreement barring prosecution, but its object and effect (dropping war
crimes charges to secure a peace deal) would essentially be the same. Liberia
has since applied to the International Court of Justice (ICJ),7 claiming that
the arrest warrant should be voided on the basis of the customary rule of
immunity of foreign heads of State.8 In addition, by granting asylum to
Taylor, Nigeria appears to be contravening the widely accepted principle

1 Remedial justice may be characterized as the legal means to recover a right or to prevent or obtain red-
ress for a wrong. Retributive justice focuses on the need to punish the wrongdoer for illegal acts committed.
For a discussion thereof, see K. Avruch and 8. Vejarano, "Truth and reconciliation commissions: A review
essay and annotated bibliography", The Online journal of Peace and Conflict Resolution, Vol. 4.2, 2002,
pp. 34-76.
2 See generally, R. Teitel, "Transitional jurisprudence: The role of law in political transformation", Yale
Law journal, Vol. 106. No. 7,1997, p. 2009, esp. p. 2037. A contextual approach should also take into account
the fact that notions of justice, truth, forgiveness, reconciliation and accountability are socially constructed
and culturally constituted.
3 Amnesty literally means "[f]orgetfulness, oblivion; an intentional overlooking". Oxford English
Dictionary, 2nd ed., 1989. Legally, it means foreclosing criminal prosecution for past offences. This pre-
conviction measure may be distinguished from a pardon, which officially recognizes the guilt of the offender
but foregoes the sentence. The word "amnesty" is derived from the Greek "amnestia" meaning oblivion or
not remembering.
4 For reasons of subject and space limitation, this article will not deal directly with the recognition of
amnesties for other serious international crimes, such as torture, genocide, or crimes against humanity.
5 In this article, the word "recognition" is taken to mean the acknowledgement of legal validity under
international law by States or courts.
6 Charles Taylor left the presidency and the territory of Liberia on 11 August 2003 following strong inter-
national pressure and the intervention of a Nigerian-led ECOWAS peacekeeping force. The indictment for war
crimes of the Sierra Leone Special Court, originally issued on 7 March 2003 and then re-issued on 4 )une
2003, remains in force. The Security Council, in Res. 1478 (2003), UN Doc. S/RES/1478, 6 May 2003, has
shown support for the indictment, calling on "all States, in particular the Government of Liberia, to cooperate
fully with the Special Court for Sierra Leone" (preambular para. 10).
7 "Liberia applies to the International Court of Justice in a dispute with Sierra Leone concerning an inter-
national arrest warrant issued by the Special Court for Sierra Leone against the Liberian President",
International Court of Justice Press Release 2003/26, 5 August 2003.
8 In a judgment that has sparked criticism, the International Court of Justice (ICJ) has recently upheld the
absolute immunity of an incumbent Minister of Foreign Affairs under customary law. In the Arrest Warrant of
April nth 2000 (Democratic Republic ofthe Congo v. Belgium), Judgment, Merits, 41ILM 536 (2002), the Court
held that the issue and circulation, by a Belgium magistrate, of an arrest warrant against an incumbent Minister
of Foreign Affairs of the Democratic Republic of Congo failed "to respect the immunity from criminal jurisdiction
and the inviolability [of] the incumbent Minister (...) under international law" (para. 78). On the future agenda of
the ICJ is the case of Certain Criminal Proceedings in France (Republic of the Congo v. France), which concerns
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°85l 585

that States may not give asylum to persons accused of international crimes
such as war crimes.9
In other developments in recent months, the United States of America
has effectively prevented the International Criminal Court (ICC) from pros-
ecuting its nationals and the nationals of other States not party to the Rome
Statute of the International Criminal Court10 for war crimes (and other seri-
ous international crimes) by pressuring the Security Council to approve
another one-year exemption from the jurisdiction of the ICC for peacekeep-
ers who are nationals of non-party States.11 This condition was also attached
to the Security Council resolution allowing a multinational force to inter-
vene in the Liberian civil war in order to enforce the 17 June 2003 ceasefire
agreement.'2 A series of bilateral agreements (so-called Article 98 agree-
ments) between the US and some 53 States ensure the non-surrender to the

the Republic of Congo's complaint against France that, inter alia, "by attributing to itself universal jurisdiction
in criminal matters and by arrogating to itself the power to prosecute and try the Minister of the Interior of a
foreign State for crimes allegedly committed by him in connection with the exercise of his powers for the
maintenance of public order in his country", France violated "the principle that a State may not, in breach of
the principle of sovereign equality (...) exercise its authority on the territory of another State". It is further
asserted by the Republic of Congo that, in issuing an arrest warrant instructing police officers to examine the
President of the Republic of the Congo as witness in the case, France violated "the criminal immunity of a
foreign Head of State — an international customary rule recognized by the jurisprudence of the Court".
International Court of Justice Press Release 2003/21,16 July 2003.
9 Principles of international cooperation in the detection, arrest, extradition and punishment of persons
guilty of war crimes and crimes against humanity, General Assembly Res. 3074 (XXVIII), 3 December 1973,
para. 7. Art. 14(2) of the Universal Declaration of Human Rights, General Assembly Res. 217 A (III),
10 December 1948, states that individuals have no right to seek asylum from "prosecutions arising from non-
political crimes or from acts contrary to the purposes and principles of the United Nations."
10 Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002) [herein-
after "Rome Statute"].
11 The first resolution of this kind was passed on 12 July 2002 in United Nations Security Council Res.
1422 (2002), UN Doc. S/RES/1422 (2002). This resolution requested the International Criminal Court (ICC) to
refrain from initiating investigations or proceedings to peacekeepers of States not party to the Rome Statute,
while reaffirming its intention to "renew the request (...) under the same conditions each 1 July for further
12 month periods...". On 12 June 2003, the Security Council approved (12-0, with 3 abstentions from France,
Germany and Syria) another one-year exemption for peacekeepers who are nationals of non-party States.
United Nations Security Council Res. 1487 (2003), UN Doc. S/RES/1497,12 June 2003.
12 United Nations Security Council Res. 1497 (2003), UN Doc. S/RES/1497,1 August 2003. Para. 7 of the
resolution provides that "...current or former officials or personnel from a contributing State, which is not a
party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of
that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or
United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by
that contributing State".
586 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

ICC of US nationals and contractors accused of war crimes who find them-
selves on the territories of those States.13
These recent examples of State practice barring the prosecution of war
crimes not only shed light on the contextual background of the amnesty
issue, but also highlight the interconnections between the international
legal principles impacting upon the emerging system of international crimi-
nal law. The present article examines the main international legal rules and
principles which determine or affect a foreign or international court's ability
to recognize an amnesty for war crimes. This examination, together with a
survey of recent practice, provides a broad analytical framework which could
facilitate an assessment by domestic and international courts of the validity
of such an amnesty.

International recognition of amnesties for war crimes:

framing the issue
Amnesties for war crimes and other international crimes come into
being mainly when States are going through periods of transition, often from
war to peace, and of extreme political upheaval, for example, the handing
over of power from military regimes to democratic civilian governments.
During such turbulent and politically sensitive times, international law needs
to be able to reconcile the competing needs of the territorial State (to move
on from the past and not to upset the delicate political process towards peace
or democratic consolidation) and those of the international community (to
prosecute those accused of international crimes).14 Over the last few decades,
with the emergence of an international criminal prosecution system, a general

13 A list of the States who have entered into these bilateral agreements with the US is available on
the website of the Coalition for the International Criminal Court, <http://www.iccnow.Org/documents/
otherissuesimpunityagreem.html>. 25 of these States are party and 10 are signatories to the Rome Statute.
14 On the theory of transitional justice and how it may accommodate the peculiar needs of transitional
societies, see generally D. Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of
a Prior Regime", The Yale Law journal, Vol. 100, No. 8.1991, p. 2537; D. Cassel, "Lessons from the Americas:
Guidelines for International Response to Amnesties for Atrocities", Law and Contemporary Problems, Vol. 59,
1996, p. 225; N. J, Kritz, (ed.), Transitional justice, Vol. I, Institute of Peace Press, Washington, 1995; N. Roht-
Arriaza (ed.). Impunity and Human Rights in International Law and Practice, Oxford University Press, Oxford,
1995; Teitel, op. cit. (note 2), p. 2009; J.Dugard, "Dealing with crimes of a past regime. Is amnesty still an
option?", Leiden Journal of International Law, Vol. 12, No. 4, 1999, p. 1009; P. Hayner, Unspeakable Truths:
Confronting State Terror and Atrocity, Routledge, London, 2001; S. Ratner and J. Abrams, Accountability for
Human Rights Atrocities in international Law: Beyond the Nuremburg Legacy, 2nd ed., Oxford University
Press, Oxford, 2001.
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N°851 587

presumption of illegality of amnesties for international crimes has developed.15

However, if all amnesties for war crimes in all circumstances were to be con-
sidered as invalid and never to be accorded international recognition, this
might seriously blunt a useful tool for ending or preventing civil wars,16 facili-
tating the transition to democratic civilian regimes17 or aiding the process of
reconciliation.'8 Other policy reasons for the international recognition of
amnesties include the fact that mechanisms for discovering the truth might be
compromised if a person subject to a domestic amnesty (on condition of full
disclosure of his or her involvement in the international crime) fears prosecu-
tion if he or she crosses a border.19 By generally obliging governments to

15 Voicing a widely agreed statement* the Princeton Principles on Universal Jurisdiction, aSopted by a
group of international law experts in 2001, proposed that "Amnesties are generally inconsistent with the obli-
gation on states to provide accountability for serious crimes under international law"; Principle 7, Princeton
Principles on Universal Jurisdiction 28 (2001), Princeton University Program in Law and Public Affairs,
Princeton University, Princeton, 2001. Human rights bodies have come to the same conclusion: Inter-
American Court of Human Rights, Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru) 14 March 2001;
Rodriguez v. Uruguay, Communication No. 322/1988, UN Human Rights Committee, 19 July 1994; Human
Rights Committee General Comment No. 20 on Art. 7 (replacing General Comment 7 concerning prohibition of
torture anct cruel treatment or punishment, 10 March 1992.
16 For example, amnesties have been negotiated as part of peace deals in Sudan (Sudan Peace
Agreement of 21 April 1997), the Democratic Republic of Congo (1999 Lusaka Ceasefire Agreement) and
Sierra Leone (Lome Peace Agreement of 8 July 1999), among others, as measures to stop the bloodshed.
More recently, the Russian Duma has enacted new amnesty laws as a means to help resolve the conflict in
Chechnya: "Total 126 people have applied for amnesty in Chechnya", Relief Web (source: government of the
Russian Federation), 1 July 2003, President Joseph Kabila of the Democratic Republic of Congo has recently
signed amnesty laws for Congolese rebels, though war crimes are reportedly not covered. M. Durmmett,
"Amnesty for Congolese rebels", BBC News, <http:news.bbc.co.Uk/go/pr/fr/-/2/hi/africa/2953621.stm>,
16 April 2003.
17 During the past several years, Argentina, Cambodia, El Salvador, Guatemala, Haiti and Uruguay among
others have each granted amnesty, as part of the peace arrangement, to members of the former regime that
committed international crimes. N. Roht-Arriaza, "State responsibility to investigate and prosecute grave
human rights violations in international law", California Law Review, Vol. 78,1990, p. 451, pp. 458-61; US
Delegation Draft "State practice regarding amnesties and pardons", presented to the Preparatory Committee
for the Establishment of an International Criminal Court, 4th Sess., August 1997.
18 The most clear example is that of South Africa, where the Promotion of National Unity and
Reconciliation Act 34 of 1995 sets up a mechanism to grant a broad amnesty for those who had committed
politically motivated crimes during the apartheid regime. See The Azanian Peoples Organization (AZAPO) v.
The President of the Republic of South Africa and ors., Case CCT17/96, (South Africa), 1996 (hereinafter the
AZAPO case), para. 22.
19 The "amnesty for truth" argument was also used by the Constitutional Court of South Africa in the
AZAPO case to justify the Promotion of National Unity and Reconciliation Act 34 of 1995, ibid., pp. 683-685.
See also Dugard, op. cit. (note 14), p. 1009; A. O'Shea, Amnesty for Crime in international Law and Practice,
Kluwer Law International, The Hague, p. 310.
588 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

prosecute and punish those accused of international crimes, international law is

able to some extent to de-politicize trials of former leaders or members of mili-
tary regimes.20 At the same time, by not requiring governments to risk provoking
or maintaining a civil war and by recognizing the importance of other objectives
such as reconciliation, international law is able, through the mechanism of
principled and limited amnesties, to accommodate the transitional process.21
As international crimes are the concern of the entire international com-
munity, it is extremely important to broadly define the parameters of the inter-
nationally acceptable amnesty for war crimes. Moreover, by internationally
acknowledging the validity of certain types of amnesties in appropriate cir-
cumstances and, by inference, by acknowledging that amnesties outside these
boundaries are invalid, States are more clearly constrained to enact laws or
enter into agreements which fall within these acceptable parameters. The
chances for broad-brush impunity are thereby narrowed,22 this being a central
objective of the emerging system of international criminal justice.23
Most commentators point out that even limited and principled amnesties
normally have no extraterritorial effect, as they do not affect treaty obligations or
entitlements under customary law to prosecute persons accused of war crimes.24

20 Although, as the ongoing trial of the former Yugoslav President Slobodan Milosovic at the ICTY
demonstrates, accused persons will still argue that trials for serious violations of human rights, even at the
level of international criminal courts, are motivated by political factors rather than by legal considerations.
The establishment of the ICC may go some way to removing these types of objections, since it will have juris-
diction over international crimes committed on the territory of any States Parties or over persons who are
nationals of States Parties. See Rome Statute, Art. 12.
21 For a thorough analysis of this theory, see generally Orentlicher, op. cit. (note 14) and Teitel, op. cit.
(note 2).
22 "Impunity" has been defined as "the impossibility, de jure or de facto, of bringing the perpetrators of
human rights violations to account — whether in criminal, civil, administrative or disciplinary proceedings —
since they are not subject to any inquiry that might lead to them being accused, arrested, tried and if found
guilty, convicted". Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political
rights), Final Report prepared by Mr. Joinet pursuant to Sub-Commission Resolution 1996/119,
E.CN.4/SUD.2/1997/20, 26 )une 1997 [hereinafter "Joinet Report"].
23 Thus, the preamble to the Rome Statute of the International Criminal Court declares at para. 5 that the
States Parties are "[djetermined to put an end to impunity for the perpetrators of [the most serious crimes of
concern to the international community] (...) and thus to contribute to the prevention of such crimes".
24 For example, R. Boed, "The effect of a domestic amnesty on the ability of foreign States to prosecute
alleged perpetrators of serious human rights violations", Cornell International Law Journal, Vol. 33, No. 2,
2000, pp. 297 and 323. Some domestic courts have come to the same conclusion. In several cases involving
the forcible disappearance of Spanish citizens in Argentina it has been held that Argentina's domestic
amnesty is not binding on Spanish courts. For example, Fortunato Galtieri Case, Judgement of March 1997,
available at: <http:www.derechos.org/nizkor/arg/espana/authgalt.html>.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 589

This may be true, but a closer examination of the principles and rules influ-
encing the decision-making of domestic and international fora in this regard
suggests that this conclusion does not necessarily preclude the international
recognition of all amnesties in all circumstances. To arrive at a complete
answer, the following questions need to be addressed. Are foreign or interna-
tional courts bound by amnesties for war crimes? If they are not, may they
nonetheless recognize or give effect to an amnesty for war crimes under
international law? If foreign or international courts are able to recognize cer-
tain amnesties for war crimes, what limits does international law impose on
their ability to do so?

Are foreign or international courts bound by amnesties for war

crimes?
In principle, States are bound only by their internal law, by treaty
obligations which they have entered into, and by rules of customary inter-
national law." Amnesties which are purely internal to a State, for example,
those agreed in a peace deal between the government and rebel groups or
between such groups ending a civil war, or which have been negotiated
between an outgoing and incoming regime during a period of political
transition, are not formally binding on other States.26 Amnesties which are
brokered between two or more States, for example, in the context of a
peace agreement ending an international armed conflict, would as a matter
of treaty law be binding on those States only: third States would not be so
bound."
In treaties regulating the transfer of proceedings in criminal matters, States
Parties are often under an obligation to bar prosecution where a person is the sub-
ject of a pardon or amnesty in another contracting State, owing to the principle of

25 As Brownlie writes: "...the state must be independent of other state legal orders, and any interference
by such legal orders, or by an international agency, must be based on a title of international law." I. Brownlie,
Principles of Public International Law, 5th ed., Clarendon Press, Oxford, 1998, p. 72.
26 Under the principle of the sovereign independence of States, States are not obliged to give effect to
the internal laws of other States as this would be an encroachment on their own sovereign independence.
See Brownlie, ibid., p. 72. An example of the same reasoning can be found in the French case of Abetz, where
it was held that diplomatic immunity was not relevant to a war crimes prosecution since the legal basis of
prosecution rests with offences against the community of nations and as such any domestic interference
through grants of immunity would "subordinate the prosecution to the authorization of the country to which
the guilty person belongs"; quoted in j . Paust et. at. (eds), International Criminal Law: Cases and Materials,
Carolina Academic Press, Durham, 1996 [hereinafter International Criminal Law], p. 78.
27 Art. 31 of the Vienna Convention on the Law of Treaties, of 23 May 1969.
590 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

ne bis in idem.29 However, the ne bis in idem principle creates international obliga-
tions only between the signatories; it is generally not considered part of customary
international law.29 Although the principle could be considered a general princi-
ple of law recognized by civilized nations,30 this should be distinguished from the
situation under customary international law, which is that no double jeopardy
attaches to prosecutions by different sovereign States.31 During the negotiations in
Rome on the Statute of the International Criminal Court, both amnesty and par-
don were rejected in the context of the defence of ne bis in idem.n
There are a wide variety of legal sources supporting the principle that
domestic laws or judicial decisions cannot exempt a person accused of interna-
tional crimes from individual criminal responsibility or prevent a foreign or inter-
national court from prosecuting. For example, as early as 1919 the Commission on
the Responsibility of the Authors of the War and on Enforcement and Penalties
took note of the rule that "no trial or sentence by a court of the enemy country
shall bar trial and sentence by the tribunal or by a national court belonging to one
of the Allied or Associated States." The Allied Control Council Law No. 10 of
1946 similarly provided that no statute, pardon, grant of immunity or amnesty
under the Nazi regime would be admitted as a bar to trial or punishment.33

28 For example, Art. 35 of the European Convention on Transfer of Proceedings in Criminal Matters, of
15 May 1972. The UN Model Treaty on Extradition, UN Doc. A/RES/45/U6 of 14 December 1990, provides that
a request for extradition for a person may be refused if that person has become immune from prosecution or
punishment, including by reason of amnesty (Art. 3(e)); see also Articles 10(3), 12(1), and 53 (i)(b)(ii) of
the European. Convention o n the International Validity of Criminal Judgments, of 28 May 1970; and Art. 62(2)
of the Convention Applying the Schengen Agreement of 14 June 1985 between the Governments of the States of
the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual
Abolition of Checks at Their Common Borders.
29 International Criminal Law, op. cit. (note 26), p. 574.
30 Art. 38(1) (c) of the 1945 Statute of the International Court of Justice.
31 Art. 14(7) of the International Covenant of Civil and Political Rights, of 16 December 1966 (which reiter-
ates the ne bis in-idem principle) does not prevent the prosecution, in another State, of a defendant who has
benefited from an amnesty in the territorial State, because the procedure for an amnesty does not amount to
an "acquittal" within the meaning of that provision. Moreover, the Human Rights Committee has decided that
Art. 14(7) does not prohibit trial for the same offence in another State. A.P. v. Italy, Comm. No. 204/1986,
2 November 1987, UN Doc. A/43/40, at 242.
32 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1,
p. 40, para. 174 (Proceedings of the Preparatory Committee during March-April and August 1996) GAOR, 51st
Sess. Supp. No. 22, UN Doc. A/51/22); UN.Doc, A/CONF./283/2/Add. 1 (1998), Art. 19.
33 Allied Control Council Law No. 10, 31 Jan. 1946, Art. II.5. The Principles of the Nuremberg Charter and
Judgement recognized that even though domestic law "does not impose a penalty for an act which constitutes
a crime under international law it does not relieve the person who committed the act from responsibility
under international law."
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 NT851 591

In 1968, the United Nations General Assembly stated that no statutory lim-
itation would apply to war crimes, crimes against humanity, or genocide.34
Moreover, recognition of an amnesty covering a person for war crimes may
constitute a violation of a State's duties under the Geneva Conventions and
Additional Protocol I to prosecute or extradite persons accused of grave
breaches thereof.'5 Customary doctrines of exception such as necessity, dis-
tress and force majeure which preclude the wrongfulness of a State's failure to
comply with its international obligations in exceptional circumstances do
not easily accommodate amnesties.36
The only conceivable situation in which a third State could be consid-
ered legally bound by an amnesty is where the amnesty deal is brokered (or
given approval) by the United Nations Security Council for the purpose of
maintaining international peace and security. Where non-recognition of the
amnesty would require that State to act in contravention of its obligations
under the Charter of the United Nations - for example, thereby threatening
international peace and security - it will be constrained to give effect to the
amnesty.37 Clearly, this sets a very high threshold for an amnesty binding on

34 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity, General Assembly Res. 2391, 26 November 1968.
35 See text accompanying notes 49-56. On arguments against the international recognition of amnesties
for war crimes, see J. Paust, "My Lai and Vietnam: Norms, myths and leader responsibility", Military Law
Review, Vol. 57,1972, pp. 118-23.
36 The doctrine of necessity would not provide a State with justification to avoid its obligations, unless it
could show that prosecution would entail a grave and imminent peril for the State and that the State's sole
means to safeguard an essential interest is not to abide by its international legal duty to prosecute.
Furthermore, necessity cannot be invoked unless to do so does not seriously impair an essential interest of
the State or States towards which the obligation exists, or of the international community as a whole.
Arguably, the duty to prosecute those accused of war crimes is an essential interest of the international com-
munity. See Art. 25 of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by
the International Law Commission on 29-31 August 2001, ILC, Report on the work of its fifty-third session,
23 April -1 June and 2 June -10 August 2001, GAOR Fifty-fifth Sess. Supp. No. 10 (A/56/10) (hereinafter ILC
Articles on State Responsibility). The General Assembly took note of the Articles on 12 December 2001 in GA
Res. 56/83. To invoke force majeure, a State would need to show that the failure to prosecute arose from the
occurrence of an irresistible force or an unforeseen event beyond the control of the State, making it mate-
rially impossible to perform the obligation (see ILC Articles, Art. 23, ibid.). Distress could be invoked only if
the failure to prosecute was the only reasonable way, in a situation of distress, of saving the perpetrator's life
or the lives of other persons entrusted to the perpetrator's care (see ILC Articles, Art. 24, ibid.).
37 This argument derives from the principle established in Art. 103 of the Charter of the United Nations
which provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail".
592 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

third States. There would have to be evidence that going ahead with prose-
cution would undermine the peace agreement and ultimately threaten inter-
national peace and security. This is a fairly difficult calculation to prove, but
is not beyond reasoned contemplation.
Indeed, the inclusion of Article 16 in the Rome Statute of the
International Court,38 which gives the Security Council the power to defer
proceedings before the Court for twelve months by passing a resolution
(which may be renewed) under Chapter VII of the UN Charter, is a clear
acknowledgement by States that unlimited prosecution for international
crimes may amount to a threat to peace and security.39 This provision sig-
nals that peace and justice do not always coincide and that where they
appear to be in conflict, the objective of securing or maintaining peace will
prevail.40
The Security Council's recent renewal of its resolution requesting the
ICC to refrain from exercising jurisdiction over nationals of non-party States
gives some insight into the scope of the Security Council's power of deferral
under Article 16. On the face of it, these Security Council resolutions are
not about recognizing amnesties for war crimes, nor are they arguably bind-
ing on the ICC, given that they are framed in terms of a "request".
Nevertheless, the wide interpretation by the Security Council of its obliga-
tion to identify a "threat to the peace"41 and its rather liberal and repeated

38 Art. 16-of the Rome Statute provides: "No investigation or prosecution may be commenced or procee-
ded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under
Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be
renewed by the Council under the same conditions."
39 The point has been made that the time limit of the deferral (notwithstanding the possibility of renewal)
suggests that this is a delaying mechanism only and not a means to achieve a permanent recognition of a
domestic amnesty. J. Gavron, "Amnesties in the light of developments in international law and the establish-
ment of the International Criminal Court", International and Comparative Law Quarterly, Vol. 51, Pt. 1, Jan.
2002, p. 110.

40 See generally V. Gowlland-Debbas, "The role of the Security Council in the new International Criminal
Court from a systemic perspective", in L Boisson de Chazournes and V. Gowlland-Debbas (eds), The
International Legal System in Quest of Equity and Universality, Liber-Americorum Georges Abi-Saab,
Martinus Nijhoff Publishers, Kluwer Law International, 2001, pp. 629-650.
41 The resolutions fail to positively identify a "threat to the peace, breach of the peace, or act of aggres-
sion" which is a prerequisite for action under Chapter VII of the Charter, merely stating that "it is in the inter-
ests of international peace and security to facilitate Member States' ability to contribute to operations estab-
lished or authorized by the United Nations Security Council". Security Council Res. 1487 (2003), op. cit. (note
11), preambular para. 7. See UN Charter, Art. 39.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 593

use of Article 1642 indicate that political pressure may well compel the ICC
to refrain from exercising jurisdiction over war crimes cases. Since the ICC
assumes jurisdiction under the complementarity principle only when States
are unable or unwilling to prosecute perpetrators - which could arguably
include situations where States have given amnesties for war crimes - this
type of Security Council action under Article 16 would in such circum-
stances give effect to amnesties for war crimes for as long as the deferral
lasted.
It is therefore crucial to stress that although the Security Council has a
wide measure of discretion in the way it chooses to carry out its functions and
is normally its own judge when it interprets its powers under the Charter, it
nonetheless remains bound by the purposes and principles of the Charter.43 It
also remains bound by certain fundamental principles of international law, in
particular peremptory norms of international law from which no derogation
by any subject of international law, including the Security Council, is ever
permitted.44 Moreover, at a procedural level, a determination of the exis-
tence of a "threat to the peace, breach of the peace, or act of aggression" is a
sine qua non for action under Chapter VII; this condition must therefore be
fulfilled before the Security Council can request the ICC for deferral of a
case under Article 16.45
From the foregoing, it may be concluded that domestic courts and
international courts are not normally bound by amnesties for war crimes,
save in the extreme case where prosecution of an accused who is subject
to an amnesty as part of a peace deal brokered by the United Nations
could threaten international peace and security. However, even in these

42 The drafting history of Art. 16 suggests that the provision was not meant to be applied prospectively to
groups of people, nor to provide for permanent deferral. Rather, it was intended to be applied on a case-by-
by basis to specific situations where proceedings before the Court might hamper efforts to restore or main-
tain peace. At least 116 States expressed criticisms of the resolution during the drafting stages. See Amnesty
International, "The International Criminal Court: The unlawful attempt by the Security Council to give US citi-
zens permanent impunity from international justice", May 2003, Al Index: I0R 40/006/2003. See also
K. Ambos, "International criminal law has lost its innocence", German Law Journal, Vol. 3, No. 10,1 October
2002; B. MacPherson, "Authority of the Security Council to exempt peacekeepers from International Criminal
Court proceedings", ASIL Insights, July 2002, p. 2.
43 UN Charter, Art. 24(2).
44 1969 Vienna Convention on the Law of Treaties, Art. 53. See also D. Schweigmann, The Authority of the
Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of
Justice, Kluwer Law International, The Hague, 2001, p. 197.
45 UN Charter, Art. 39.
594 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

circumstances, the amnesty must be consistent with fundamental principles

of international law in order to render it valid and internationally acceptable.

May foreign or international courts recognize or give effect to an

amnesty for war crimes?
The answer to this question depends largely on whether States are
under a positive obligation to prosecute persons accused of war crimes. If
States have such a duty, then third States' courts or international courts
would not be able to recognize an amnesty for these types of crimes unless
that duty could be derogated from under international law. On the other
hand, if States are merely entitled to prosecute or extradite persons accused of
certain war crimes, then a State would be able to give effect to an amnesty
law covering these crimes by choosing not to exercise jurisdiction.
Notwithstanding any other possible jurisdictional bases connected with ter-
ritory or nationality, it is increasingly accepted that customary international
law entitles all States to exercise universal jurisdiction over war crimes.46
Several countries have enacted legislation allowing them to try war crimes
perpetrators under the universality principle,47 and in recent years many

46 W. Cowles, "Universal jurisdiction over war crimes", California Law Review, Vol. 33,1945, p. 177. See
generally, A. Segall, Punishing Violations of International Humanitarian Law at the National Level, ICRC,
Geneva, 2001, especially pp. 30-38. But see also Brownlie, who argues that the legal consequences of brea-
ches of the laws of war (especially of the HagueConventionof 1907 and the Geneva Conventions of 1949) are
not correctly expressed as an acceptance of the principle of universality, since what is punished is the breach
of international law. This, he claims, is different from "the punishment, under national law, of acts in respect
of which international law gives a liberty to all states to punish, but does not itself declare criminal."
Brownlie, op. cit. (note 25), p. 308. In the Tadic case, Judge Cassese declared in relation to the principle of
universal jurisdiction: "This is all the more so [justified] in view of the nature of the offences alleged against
the Appellant, offences which, if proven, do not affect the interests of one State alone but shock the
conscience of mankind. As early as 1950, in the case of General Wagener, the Supreme Military Tribunal of
Italy held: '...The Solidarity among nations, aimed at alleviating in the best possible way the horrors of war,
gave rise to the need to dictate rules which do not recognize borders, punishing criminals wherever they may
be...Crimes against the laws and customs of war cannot be considered political offences, as they do not harm
a political interest of a particular State, nor a political right of a particular citizen. They are, instead, crimes of
tese-humanite (reati di lesa umanita) and, as previously demonstrated, the norms prohibiting them have a
universal character, not simply a territorial one.' {13 March 1950, in Rivista Penale 753, 757 (Sup. Mil. Trib.,
Italy 1959; unofficial translation)", The Prosecutor v. Dusko Tadic, International Tribunal for the Former
Yugoslavia, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals
Chamber, 2 October 1995), p. 57.
47 See for example, in Canada, the Crimes against Humanity and War Crimes Act (2000); in Germany, the
International Crimes Act (2002); in Switzerland, the Code penal militaire 1968; in Nicaragua, the Criminal
Code 1974.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 595

domestic courts have prosecuted persons (non-nationals or without any

other territorial connection) accused of war crimes and other serious inter-
national crimes committed in third States.48 The following sections assess
which war crimes entail a duty to prosecute and those which merely entail
an entitlement under customary law to do so.

Grave breaches regime

Conventional law imposes a mandatory system of universal jurisdiction
over "grave breaches"49 of the Geneva Conventions of 1949 and Additional
Protocol I.50 The ICRC Commentary on the Geneva Conventions states that
this obligation is "absolute".51 This conclusion is supported by the fact that
States Parties are unable to absolve themselves or any other State Party of any

48 See for example, Prosecution v. Refik Saric, Third Chamber of the Eastern Division of the Danish High
Court, 25 November 1994; Prosecution v. Refik Saric, Supreme Court of Denmark, 15 August 1995, Ugeskrift
for Retsvaesen, p. 838; En la cause Fulgence Niyonteze, Tribunal militaire de division 2, Lausanne, 30 April
1999; En la cause Fulgence Niyonteze, Tribunal militaire d'appel aa, Geneva, 26 May 2000; Tribunal militaire
de cassation, Yverdon-ies-Bains, 27 April 2001.
49 Articles 50/51/130/147 common to the four Geneva Conventions define the conduct constituting grave
breaches of the Conventions. Offences amounting to grave breaches include wilful killing, torture or inhuman
treatment, and wilfully causing great suffering or serious injury to body or health. Article 85 of the Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
I nternational Armed Conflicts of 8 June 1977 (hereinafter Additional Protocol I) expands the list of grave brea-
ches to include serious violations of the laws and customs of war (sometimes referred to as "Hague Law"),
when committed wilfully, in violation of the relevant provisions of Protocol I, and causing death or serious
injury to body or health.
50 Articles 49/50/129/146 common to the four Geneva Conventions of 1949 provide: "The High
Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for per-
sons committing, or ordering to be committed, any of the grave breaches of the present Convention. (...) Each
High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to
have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nation-
ality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legisla-
tion, hand such persons over for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a prima facie case." Art. 85(1) of Additional Protocol I states that the provi-
sions of the Geneva Conventions relating to the repression of breaches and grave breaches, supplemented
by Protocol I, apply equally to the repression of breaches and grave breaches of Protocol I. Art. 86 of
Protocol I reaffirms the obligation of States Parties to repress grave breaches, and adds that States must take
measures necessary to suppress all other breaches, of the Conventions or of Protocol I which result from a
failure to act when under a duty to do so.
51 J. Pictet (ed.), The Geneva Conventions of12 August 1949, Commentary: IV Geneva Convention (herein-
after Commentary on Geneva Convention IV), ICRC, Geneva, i960, p. 602. Furthermore, the Commentary sta-
tes that: "The universality of jurisdiction for grave breaches is some basis for the hope that they will not
remain unpunished and the obligation to extradite ensures the universality of punishment." ibid., p. 587.
596 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

liability incurred in respect of grave breaches.52 While in the Commentary's

view, the latter provision is "intended to prevent the vanquished from being
compelled in an armistice agreement or a peace treaty to renounce all compen-
sation due for breaches committed by persons in the service of the victor",5' this
provision may also be interpreted as preventing States from avoiding their obli-
gation to prosecute those accused of grave breaches, insofar as this may form
part of war reparations.54 States party to the aforesaid instruments must also sup-
press all other violations. Although the obligation to suppress violations does
not require the adoption of criminal legislation, States are able to take whatever
legislative, administrative or disciplinary measures are deemed appropriate.55
Thus, if a person is suspected of grave breaches, wherever the commis-
sion of the crimes occurred and whatever his or her nationality, States party
to either or both the Geneva Conventions and Additional Protocol I are for-
mally obliged to prosecute or extradite that person. This would logically
mean that any amnesty covering a person accused of grave breaches could
not ordinarily have any legal effect in the State promulgating the amnesty,56
nor could it be given recognition in other States.

Customary duty to prosecute grave breaches and other serious

violations of the laws and customs of war
By virtue of the almost universal ratification of the Geneva
Conventions57 and the widespread occurrence of implementing legislation

52 Articles 51/52/131/148 common to the four Geneva Conventions of 1949.

53 Commentary on Geneva Convention IV, op. cit, (note 51), p. 603.
54 The Commentary, ibid., continues, "As the law stands today (...) [o]nly a State can make such claims on
another State, andthey form part, in general, of what is called 'war reparations'." Principle 15 in a UN text on
the right to reparation proposes that judicial or administrative sanctions or "a judicial decision restoring the
dignity, reputation and legal rights of the victim and/or of persons connected with the victim" may constitute
satisfaction as part of reparations. Revised Set of Basic Principles and Guidelines on the Right to Reparation
for Victims of Gross Violations of Human Rights and Humanitarian Law, prepared by Mr. Theo van Boven pur-
suant to decision 1995/117 of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities, UN Doc. E/CN.4/Sub.2/i996/i7, 24 May 1996.
55 See Segall, op. cit. (note 46), especially pp. 30-38.
56 As Oppenheim writes, "If a State (...) possesses] such rules of Municipal Law as it is prohibited from
having by the Law of Nations, it violates an international legal duty." L. Oppenheim in H. Lauterpacht (ed.).
International Law, 8th ed., 1955, p. 45; 1969 Vienna Convention on the Law of Treaties, Art. 27; Polish
Nationals in Danzig, 1931 PCIJ (ser. A/B) No. 44, p. 24; Fisheries (United Kingdom v. Norway), ICJ Reports
1951,116 at 132; Nottebolm (Liechtenstein v. Guatemala), ICJ Reports 1955, 4 at 20-21.
57 At 25 August 2003 there were 203 States party to the Geneva Conventions of 1949.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 597

enacted by States around the world,58 it can confidently be stated that the
obligation to prosecute or extradite persons accused of grave breaches, as
enumerated in the Geneva Conventions, is a customary rule of international
law. Whether the other serious violations of the laws and customs of war
(mostly deriving from the 1907 Hague Convention IV and its annexed
Regulations), included in the extended list of grave breaches in Article 85 of
Additional Protocol I, also entail mandatory universal jurisdiction under
customary international law remains a question of debate.59
The Hague Conventions and Regulations themselves contain no pro-
vision dealing with individual responsibility for violations of the rules con-
tained therein, nor do they specify a duty for States Parties to prosecute those
who have breached even the most serious of the laws.60 However, the
Nuremberg International Military Tribunal in 1945 held that the humanitar-
ian rules included in the Regulations annexed to the Hague Convention IV
of 1907 "were recognized by all civilized nations and were regarded as being
declaratory of the laws and customs of war".61 The Statute of the
International Criminal Tribunal for the former Yugoslavia provides for juris-
diction over "violations of the laws and customs of war".62 The adoption of
the Rome Statute is significant in this respect, since it was a guiding prin-
ciple during negotiations that definitions of war crimes should reflect cus-
tomary international law.63 The inclusion of the large majority of serious vio-
lations of the laws and customs of war in the authoritative list of "war crimes"

58 See the ICRC Advisory Service compilation of national implementation mechanisms of international
humanitarian law, available at: <http://www.gva.icrc.org/ihl-nat>.
59 During the negotiations in Rome on the list of war crimes to be included in the Statute of the
International Criminal Court, States strongly disagreed on the customary status of the rules in Additional
Protocol I. See 1995 Ad Hoc Committee Report, para. 74, and 1996 PrepCom Report, Vol. I, para. 81.
60 Art. 3 of the 1907 Hague Convention IV concerning the Laws and Customs of War does, however, specify
a duty for the State to pay compensation for violations committed by persons in its armed forces.
61 International Military Tribunal, Trial of the Major War Criminals, 14 November 1945,1 October 1946,
Vol. 1, Nuremberg, 1947, p. 254. The International Military Tribunal also pointed out that: "[cjrimes against
international law are committed by men, not by abstract entities, and only by punishing individuals who com-
mit such crimes can the provisions of international law be enforced." Ibid., reproduced in the American
journal of International Law, Vol. 41,1947, pp. 220-221.
62 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN
Security Council Res. 827 (1993), UN Doc. S/RES/827, 25 May 1993 (hereinafter ICTY Statute), Art. 3.
63 H. von Hebel and D. Robinson, "Crimes within the jurisdiction of the Court", in R. Lee (ed.), The
International Criminal Court, The Making of the Rome Statute: Issue, Negotiations, Results, Kluwer Law
international, The Hague, 1999, p. 122.
598 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

under the jurisdiction of the International Criminal Court64 now definitively

attests to the fact that States are entitled to prosecute persons accused of
those crimes under customary international law.65
However, whether the criminalization of serious violations of the laws
and customs of war under customary international law entails the mandatory
prosecution of violators is another matter. It could tentatively be argued that
the complementarity principle enshrined in the Rome Statute implies a def-
inite duty for States to prosecute persons accused of crimes within the juris-
diction of the Court. According to that principle, if they are unable or
unwilling to fulfil this duty, the ICC will assume jurisdiction.66 If States party
to the Rome Statute wish to take advantage of the principle of complemen-
tarity, they must pass appropriate criminal legislation and actively prosecute
those accused of the relevant crimes who are found on their territory. The
formulation of the complementarity rule in negative terms, i.e. when States
are deemed unable61 or unwilling to prosecute such crimes, seems to suggest
that normally States should be able and willing to prosecute persons accused
of international crimes, and that the ICC has to take jurisdiction over the

64 Some norms were deleted from the Statute on the ground that a violation of the rule was not serious
enough to come before the Court. For example, the prohibition of "unjustifiable delay in the repatriation of
prisoners of war or civilians", which is a grave breach under Art. 84(4) (b) of Additional Protocol I. See 1995 Ad
Hoc Committee Report, para. 72, and 1996 PrepCom Report, Vol. I, para. 74.
65 During the negotiations in Rome on war crimes for the Statute of the International Criminal Court,
there was no-disagreement that the norms laid down in the Hague Conventions and Regulations gave rise to
individual criminal responsibility under customary international law. See 1995 Ad Hoc Committee Report,
para. 74, and 1996 PrepCom Report, Vol. I, para. 81.
66 Art. i7(i)(a) of the Rome Statute provides: "...the Court shall determine that a case is inadmissible
where [t]he 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."
67 According to Art. 17(3) of the Rome Statute, in order to determine inability in a particular case, "the
Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial
system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise
unable to carry out its proceedings."
68 According to Art. 17(2) of the Rome Statute, in order to determine unwillingness, the Court "shall consi-
der, having regard to the principles of due process recognized by international law, whether one or more of
the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision
was made for the purpose of shielding the person concerned from criminal responsibility for crimes within
the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings
which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The
proceedings were not or are not being conducted independently or impartially, and they were or are being
conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person
concerned to justice."
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N° 851 59?

case only as an exception. This could imply thajt a general duty to prosecute
international crimes exists. On the other hand, the fact of setting up a mech-
anism for an international court to take over cases where States choose not
to prosecute, or are unable to do so, could be construed as an implicit
acknowledgement within the Rome Statute that an absolute duty to prose-
cute does not attach to all international crimes within the ICC's jurisdic-
tion.69 It is submitted that the attempt to reach a definite conclusion as to
whether there is indeed a customary duty to prosecute international crimes
on the basis of the complementarity principle infers too much from what is
essentially a mechanism to establish which court is competent to try a case.
The preamble to the Rome Statute seems to assume that there exists a
duty to prosecute all serious international crimes under customary law, recalling
that "it is the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes".70 By using the words "recalling", "duty",
and "every State" the preamble seems to imply that all States have a legal obli-
gation to ensure the prosecution of serious international crimes under customary
international law. If this assertion is correct, this means that even non-party
States not subject to the complementarity principle of the Rome Statute are
under the positive duty, under customary international law, to prosecute persons
accused of serious international crimes.71 It is beyond the scope of this article to
assess the existence or non-existence of a customary duty to prosecute all serious
international crimes.72 Suffice it to say at this point that for all other serious vio-
lations of the law of armed conflict, apart from grave breaches of the Geneva
Conventions, the question whether there exists a duty under customary law to
prosecute or extradite perpetrators thereof remains an exercise in interpretation.

69 Admittedly, this argument can be fairly easily refuted by the objectives of the Rome Statute as expres-
sed in the preamble, which states in para. 4 that "serious crimes of concern to the international community
as a whole must not go unpunished". Even so, care must be taken not to overstretch the interpretation of the
legal obligations contained in treaties by too much deference to the non-binding preamble.
70 Rome Statute of the International Criminal Court, preambular para. 6.
71 The assertion of a general duty to prosecute for serious international crimes has been made in a host
of United Nations resolutions, reports of Special Rapporteurs and other UN texts. See for example, UN
Commission on Human Rights Res. 2002/79 on Impunity in which the Commission explicitly recognizes that
"amnesties should not be granted to those who commit violations of international humanitarian and human
rights law that constitute serious crimes and urges States to take actions in accordance with their obliga-
tions". Furthermore, "crimes such as (...) war crimes (...) are violations of international law and (...) perpetrators
of such crimes should be prosecuted or extradited by States, (...) all States [are urged] to take effective mea-
sures to implement their obligations to prosecute or extradite perpetrators of such crimes". Ibid., para. 2.
72 Fora comprehensive analysis, see Roht-Arriaza, op. cit. (note 14), esp. pp. 28-40.
600 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

Nonetheless, it is significant that during the deliberations in Rome

concerning the list o{ war crimes to be included in the jurisdiction of the
International Criminal Court, disagreements over the customary character
of Additional Protocol I did not centre on whether the grave breaches
regime could be extended to serious violations of the laws and customs of
war, but on which of the expanded list of grave breaches in Article 85 of
Additional Protocol I did in fact represent customary international law.73
This could indirectly indicate that States accepted that these crimes entailed
mandatory universal jurisdiction. However, the purpose of the Rome negoti'
ations concerning the list of war crimes was simply to identify serious war
crimes under customary law, therefore the question of whether these crimes
were attached to a customary duty (not just the right) to prosecute did not
have to be decided. This would seem the more realistic interpretation, given
that several of the "other serious violations" in Article 8(2)(b) of the Rome
Statute reflect rules in Additional Protocol I, violations of which are not
even listed as grave breaches in that instrument.74 Other crimes listed in
Article 8(2)(b) of the Rome Statute have never been explicitly contained in
a humanitarian law treaty.75 As States are normally reticent to assume any
additional obligations under customary law by implication of their ratifica-
tion of a new legal instrument, the final list of war crimes is much more likely
to represent simply the serious violations of international humanitarian law
to which individual criminal responsibility is attached under customary

73 See von Hebe! and Robinson, op. cit. (note 63), pp. 109-118. A few acts defined as grave breaches in
Additional Protocol I were not included in the Statute, such as Art. 85(3)^) on attacks against works or instal-
lations containing dangerous forces and Art. 85(4) (b) on unjustifiable delay in the repatriation of prisoners of
war or civilians.
74 For example; Art. 8(2)(b)(i) (attacks against civilians) is a mix of Art. 85(3)(a) and Art. 52(1) and (3) of
Additional Protocol I; Art. 8(2)(b)(ii) (attacks against civilian objects) is based on Art. 52(1) of Additional
Protocol I; Art. 8(2)(b)(iii) (attacks against humanitarian or peacekeeping missions) is based on Art. 85(3)(b)
together with Arts 35(3) and 55(1) of Additional Protocol I; Art. 57 of Additional Protocol I was largely used to
define proportionality in Art. 8(2)(b)(iv); Art. 8(2)(b)(xxvi) (conscription of children under 15) is based on
Art. 77(2) of Additional Protocol I and Art. 38 of the Convention on the Rights of the Child of 1975.
75 For example, Art. 8(2)(b)(iii) prohibiting intentionally directing attacks against United Nations person-
nel and material involved in a humanitarian assistance or peacekeeping mission "as !ong as they are entitled
to the protection given to civilians or civilian objects under the international law of armed conflict" and
Art. 8(2)(b)(xxii) prohibiting crimes of sexual violence "also constituting a grave breach of the Geneva
Conventions". The latter phrase has the purpose of affirming that sexual violence can constitute a grave
breach. It should be noted that both types of violations, although never listed as war crimes in treaties prior
to the Rome Statute, are already covered by customary prohibitions and therefore are not new crimes as
such.
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL. 85 N°851 601

international law, rather than a list of crimes which entail mandatory uni-
versal jurisdiction. If there is no customary duty to prosecute persons accused
of these violations, then States might be able to give effect to an amnesty law
by choosing not to exercise jurisdiction over perpetrators of such crimes.

War crimes committed as part of a plan or policy

An observation may also be made in relation to the introductory para-
graph of the war crimes article in the Rome Statute, the so-called jurisdictional
threshold clause, which provides: "The Court shall have jurisdiction in respect
of war crimes in particular when committed as part of a plan or policy or as part
of a large-scale commission of such crimes" (emphasis added). The threshold
clause was included largely to allay the misgivings of States which felt that the
Court should have jurisdiction only over systematic or large-scale instances of
war crimes, as only these crimes would be of concern to the international com-
munity.76 Other States opposed such a clause, contending that such a threshold
would create different categories of war crimes, that the complementarity prin-
ciple already provided a safeguard against the Court taking up isolated occur-
rences of war crimes, and that a threshold clause might have the effect of deter-
ring national courts from prosecuting sporadic cases.77
Essentially, this article directs the Court to focus on the most heinous
occurrences of war crimes which have a destabilizing effect at the interna-
tional level. Although Article 8(1) strictly-speaking relates only to a juris-
dictional aspect of the ICC, in view of the purported customary law charac-
ter of the definitions of crimes in the Statute, due consideration should be
given to the possible import of such limiting clauses for the duty to prosecute
war crimes under customary international law. The emphasis on prosecuting
mainly perpetrators of war crimes committed on a large scale and in an
organized manner would seem to indicate that no amnesty could be valid for
those persons. It also indirectly implies that the Court should concentrate on

76 The threshold was first proposed by the United States in 1997. A particular concern of the United
States, among other States, was that the Court should not have jurisdiction over isolated cases of war crimes
which might be committed, for example, by American peacekeepers during an operation mandated by the
United Nations.
77 Von Hebel and Robinson, op. at. (note 63), p. 108. The original proposal which provided that the Court
shall have jurisdiction over war crimes "only when committed as part of a plan or policy or as part of a large-
scale commission of such crimes" was then replaced by "only when committed..." before being watered
down to "in particular when committed...". As von Hebel and Robinson point out, this language implies that
"Article 8(1) may be best described as a (...) guideline rather than a threshold", ibid., p. 124.
602 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

the authors of the plans and policies to commit war crimes, rather than on
those who are ordered to take part in such plans. Article 8(1) could therefore
be construed as supporting international recognition of amnesties for war
crimes which are not committed as part of a plan or policy. Conversely, those
persons who commit war crimes on such a scale as to merit international
adjudication must be prosecuted without exception (subject to possible
Security Council deferral). This interpretation is consistent with recent
practice in the prosecution of persons accused of international crimes in spe-
cial courts set up to deal with these crimes, which have jurisdiction only over
those "most responsible" for the commission thereof.78

Serious violations of Article 3 common to the four Geneva Conventions

of 1949 and other serious violations of the laws and customs of war
committed in non-international armed conflicts
Serious violations of this nature have traditionally not been considered
criminal offences attracting universal jurisdiction or a duty to prosecute and
punish under international law.79 Neither common Article 3 nor Additional
Protocol II contains provisions on grave breaches or enforcement. However,
recent developments in the law have increasingly challenged this position,80
largely in response to the atrocities committed in the former Yugoslavia and
Rwanda during the armed conflicts of the early 1990s. The International
Criminal Tribunal for Rwanda (ICTR) was specifically given subject matter
jurisdiction over serious violations of common Article 3 and Additional
Protocol II.8! Although the ICTY was not given the same specific compe-
tence, the Tribunal decided in the Tadic case that customary international
law imposes criminal liability for serious violations of common Article 3 and
that it had jurisdiction over such violations.82

78 See notes 166-174 and accompanying text.

79 D. Planner, "The penal repression of violations of international humanitarian law applicable in non-
international armed conflict", International Review of the Red Cross, Vol. 30,1990, p. 414.
80 T. Graditzky, "Individual criminal responsibility for violations of international humanitarian law com-
mitted in non-international armed conflicts", International Review of the Red Cross, Vol. 322,1998, pp. 29-
56; T. Meron, "International criminalization of internal atrocities", American Journal of International Law,
Vol. 89,1995, p. 554. The ICJ in the Nicaragua case in 1986 noted the customary character of common Art. 3
of the Geneva Conventions: Military and Paramilitary Actitivies in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, pp. 113-114, para. 218.
81 ICTR Statute, Art. 4, Annex to Security Council Res. 955 (1994), S/RES/955 (1994), 8 Nov. 1994.
82 Prosecutors. Dusko Tadic, Appeals Chamber of the iCTY, 2 October 1995, para. 137, 35 LL.M. 32 (1996).
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N° 851 603

The Rome Statute provides for jurisdiction over serious violations of the
rules applicable in internal armed conflicts.83 These rules are derived from a
range of sources, including the Hague Regulations, the Geneva Conventions
and Additional Protocol II. Given the complementarity principle enshrined in
the Rome Statute, it could be argued that domestic courts would also have
jurisdiction over these offences once enabling legislation providing for domes-
tic jurisdiction over war crimes in the Rome Statute has been passed. On this
basis one could go a step further and assume that a duty to prosecute under
international law attaches to such offences,84 with the corollary that amnesties
for such crimes could not normally be recognized. However, the reservations
already expressed as to assuming such a customary duty to prosecute on the
basis of the complementarity principle of the Rome Statute apply equally to
serious violations of humanitarian law committed in non-international armed
conflicts. In fact, given the historic reluctance of States to assume precise
duties in relation to the law of armed conflict in internal conflicts, there is
more reason to be hesitant about inferring a mandatory system of enforcement
from the negotiations of the Rome Statute and their results.85

Amnesty exception in internal armed conflicts? Article 6(5) of

Additional Protocol II
Article 6(5) of Additional Protocol II is sometimes invoked to justify
the granting of amnesties for war crimes. It stipulates that "[a]t the end of
hostilities, the authorities in power shall endeavour to grant the broadest

83 Rome Statute, Art. 8(2) (c) and (e).

84 See Y. Dinstein, "The universality Principle and war crimes", in M. Schmitt and L. Green (eds), The Law
of Armed Conflict: Into the Next Millenium, International Law Studies, Vol. 71, Naval War College, Newport,
R.I., 1998, pp. 17 and 21. See also the 1999 resolution of the United Nations Commission on Human Rights on
Sierra Leone which "[r]eminds all factions and forces in Sierra Leone that in any armed conflict, including an
armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman
treatment of persons taking no active part in the hostilities constitute grave breaches of international human-
itarian law, and that all countries are under the obligation to search for persons alleged to have committed,
or to have ordered to be committed, such grave breaches and to bring such persons, regardless of their nation-
ality, before their own courts." UN Commission on Human Rights Res. 1999/1, 6 April 1999 (emphasis
added).
85 Most commentators on the negotiations of the Rome Statute note that the list of crimes relating
to internal armed conflicts was among the most controversial issues to be decided on. While the inclusion
of common Article 3 was eventually able to achieve general acceptance at the Rome Conference, there
was continued opposition to the inclusion of most of the other norms. See von Hebel and Robinson, op. cit.
(note 63), p. 125.
604 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

possible amnesty to persons who have participated in the armed conflict".

The exact scope of this provision has been the subject of debate."6 Several
courts have used it to support their findings that amnesties are valid under
international law. Their conclusions are bolstered by stressing the need for
reconstruction after violent civil wars, which is interpreted as the rationale
behind Article 6(5).87
However, there are strong arguments countering the applicability of
Article 6(5) of Protocol II to war crimes. First, if one applies the rules of
interpretation of the 1969 Vienna Convention on the Law of Treaties,
which directs States Parties to interpret in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose,88 it is difficult to conclude that Article
6(5) covers amnesties for war crimes. Additional Protocol II was designed to
ensure greater protection for the victims of non-international armed con-
flicts by developing and supplementing Article 3 common to the Geneva
Conventions.89 If Article 6(5) were to allow amnesties which prevent prose-
cution for the most egregious human rights abuses during armed conflict, the
provision would be inconsistent with the primary objective of the Protocol.
The words "shall endeavour to grant the broadest possible amnesty" can be
interpreted in the sense that Article 6(5) should be employed only when it
can be implemented without infringing other binding international treaties
or customary international law.90
Secondly, the International Committee of the Red Cross (ICRC) has
interpreted Article 6(5) of the Protocol narrowly. In an official letter dated

86 The ICRC commentary on this article states that "[a]mnesty is a matter within the competence of the
authorities" and that "[t]he object of this sub-paragraph is to encourage gestures of reconciliation which can
contribute to re-establishing normal relations in the life of a nation which has been divided". ICRC
Commentary on Protocol H of 1977 to the Geneva Conventions of 1949, paras 4617 and 4618, available at:
<http://www.icrc.org>.
87 For example, Guevara Portilto Case, Salade lo Penal de la Corte Suprema de justicia, San Salvador
(16 August 1995), p. 11; AZAPO case, op. cit. (note 18), p. 53; Romo Mena Case, Corte Suprema de Chile
(26 October 1995), p. 12.
88 1969 Vienna Convention on the Law of Treaties, Art. 31(1).
89 Additional Protocol II, Art. 1 and preambular para. l.
90 Roht-Arriaza and Gibson also arg'ue that the phrase could be interpreted as meaning "'the broadest
possible amnesty' without destroying victims' hopes and needs for retribution and denunciation, or 'the
broadest possible amnesty' without causing social unrest because of the injustice in letting these criminals
go free". See N. Roht-Arriaza and L. Gibson, "The developing jurisprudence on amnesty", Human Rights
Quarterly, Vol. 20,1998, p. 866.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 605

1995 from the head of the Legal Division to the.ICTY Prosecutor, it stated
that Article 6(5) essentially provides for "combatant immunity", which
ensures that a combatant cannot be punished for the mere fact of taking part
in hostilities, "including killing enemy combatants, as long as he respected
international humanitarian law...".91 The provision is inapplicable to
amnesties that extinguish penal responsibility for persons who have violated
international law. This conclusion was based partly on the drafting history of
Article 6(5), which indicates that "the provision aims at encouraging amnesty,
i.e. a sort of release at the end of hostilities, for those detained or punished for
the mere fact of having participated in hostilities. It does not aim at an
amnesty for those having violated international humanitarian law."92 This
interpretation has subsequently been affirmed by the Inter-American
Commission of Human Rights and the UN Human Rights93 Committee.94
Such a rationale was applied in much earlier decisions in the United States not
recognizing amnesties for serious violations in internal conflicts.95

The duty to "respect and ensure respect" for the Geneva Conventions
Article 1 common to the Geneva Conventions of 1949 and reiterated
in Article 1{4) of Additional Protocol I states that: "The High Contracting

91 Letter of the ICRC Legal Division to the ICTY Prosecutor of 24 November 1995 and to the Department of
Law at the University of California of 15 April 1997,
92 Ibid. During the debate at the Diplomatic Conference negotiating Protocol II, the delegate for the
Soviet Union stated that draft Article 10 (which became Article 6) of Protocol II "could not be construed as
enabling war criminals, or those guilty of crimes against peace and humanity, to evade severe punishment in
any circumstances whatsoever." Official Records of the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977, Vol. 9.
Federal Political Department, Berne, 1978, p. 319.
93 Inter-American Commission on Human Rights, Report No. 199, Case 10,480, Lucio Parada Cea and ors.
(El Salvador), 27 January 1999, para. 115.
94 UN Doc. CCPR/C/79/Add.78, para. 12 (concerning the amnesty for human rights violations committed
against civilians during the civil war in Lebanon).
95 Ex parte Mudd, manuscript opinion of Judge Boynton, 9 Sept. 1868, 17 F. Cas. 954 (S.D. Fla. 1868)
(No. 9,899), (concerning petition for habeus corpus for civilians convicted by military commission for complicity
in assassination of President Lincoln). In response to the petitioners' contention concerning the presidential
proclamation of amnesty of 4 July 1868, the court stated, "But that proclamation plainly excludes (...) peti-
tioners, whether they have been convicted or not. It pardons the crime of treason (...) but it pardons no person
who has transgressed the laws of war - no spy, no assassin, no person who has been guilty of barbarous
treatment to prisoners (...). Such a provision would refer to those prisoners who had made open and honorable
war and transgressed the fearfully wide rules which war allows to be legal." Quoted in International Criminal
Law, op. cit. (note 26), p. 252.
606 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

Parties undertake to respect and to ensure respect for the present

Convention in all circumstances."96 Since one of the most effective ways of
ensuring respect for the Convention or Protocol is to have a system of
enforcement, including penal sanctions, for serious violations of the rules
contained therein, a certain expectation of criminal repression arises. It
should be noted that common Article 1 also applies to non-international
armed conflicts, as it includes ensuring respect for common Article 3 of the
Geneva Conventions. Additional Protocol II, which develops and supple-
ments common Article 3, could also indirectly be covered by the principle.97
The ICJ in the Nicaragua case found that the obligation to "respect and
ensure respect" forms part of customary international law.98 This finding was
reaffirmed in its advisory opinion on the Legality of the Threat or Use of
Nuclear Weapons." Moreover, the ICJ found that such rules were "intrans-
gressible principles of international customary law",100 implying that "no cir-
cumstance may justify a 'transgression' of such rules".101 In the Tadic Appeals
case, it was stressed in the ICTY's ruling that a State's armed forces abroad
must respect humanitarian rules (including the obligation to search for per-
sons accused of war crimes and the duty to prosecute or extradite).102
Although the extent to which common Article 1 can be rendered opera-
tional to bolster the duty to prosecute those accused of war crimes remains
uncertain, it is clear that this "quasi-constitutional"103 provision raises the
community expectation of the enforcement of humanitarian norms.'04

96 On the legal value and consequences of common Art. 1 of the Geneva Conventions, see generally
L. Boisson de Chazournes and L. Condorelli, "Common Article 1 of the Geneva Conventions revisited:
Protecting collective interests", International Review of the Red Cross, Vol. 82, No. 837, March 2000, pp. 67-86.
97 Ibid., p. 69.
98 Nicaragua case, op. cit. (note 80), para. 220.
99 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICj Reports 1996,
para. 79.
100 Ibid.
101 Boisson de Chazournes and Condorelli, op. cit. (note 96), p. 75.
102 The Prosecutors/. Dusko Tadic, ICTY Appeals Chamber, judgment, The Hague, 15 July 1999, Case No. 11-94-1.
103 Boisson de Chazournes and Condoreili, op. cit. (note 96), p. 85.
104 Paust, in "My Lai" op. cit. (note 35) has made the salient point that: "[i]nternational law is based upon
common expectations of the human community and does not solely become operative when in conformity
with one state's notions of 'just wars' orother political conclusions of a nation (...). This is due to the fact that
international legal norms have a universal character or value content, and these human expectations cannot
be ignored on the basis of local self interest. (...). Today, as the human society is forced to exist on the basis
of the sovereign state system it can be argued that it is the duty of the sovereign to execute community legal
expectations."
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N°851 607

An analogy may be drawn between Article 1 of the Geneva

Conventions and the obligation in human rights treaties to ensure respect
for the rights contained therein. Although comprehensive human rights
treaties are silent as to a duty to prosecute and punish those accused of viola-
tions of fundamental rights, authoritative sources have interpreted the obli-
gation to ensure the rights guaranteed by the treaties105 as entailing the duty
to investigate abuses and to put those alleged to have committed such abuses
on trial. For example, the Human Rights Committee has stated in relation to
the crime of torture that "States must ensure an effective protection through
some machinery of control (...). Those found guilty must be held responsi-
ble."106 In the Velasquez Rodriguez case, the Inter-American Court of Human
Rights held that as a consequence of the obligation to ensure the rights in
the American Convention on Human Rights, States must prevent, investi-
gate, and punish any violation of the rights recognized by the Convention.107
The European Court of Human Rights has interpreted Article 1, which
obliges the parties to "secure to everyone within their jurisdiction the rights
and freedoms defined" in the European Convention on Human Rights, as
including an affirmative obligation to prevent or remedy breaches of that
Convention.108 The European Commission interpreted this obligation as
including criminal prosecution where appropriate.109
On the basis of such interpretations of the treaty obligation to ensure
rights, it could be argued that the obligation in the Geneva Conventions "to
respect and ensure respect for the Conventions" should entail the mandatory
prosecution of a person accused of violating any of the fundamental provi-
sions thereof and of their Additional Protocols. A distinction should be
made, however, between the obligation to ensure the fundamental rights of
individuals and the duty to respect and ensure respect for humanitarian rules
during a situation of armed conflict. Clearly the latter obligation of ensuring
"respect" is both much broader and more vague than the aforesaid duty of

105 Art. 2(1) of the International Covenant on Civil and Political Rights, 16 December 1966; Art. 1(1) of the
American Convention on Human Rights, 7 January 1970; Art. 1 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, 4 November 1950.
106 Report of the Human Rights Committee, 37 UN GAORSupp. (No. 40) Annex V, general comment 7(16),
para. 1, UN Doc. E/CN.4/Sub.2/Add.i/963 (1992).
107 Inter-American Court of Human Rights, Case Velasquez Rodriguez, judgment of 29 July 1988, Series C,
No. 4, para. 166.
108 Ireland v. U.K., 25 Eur. Ct. H.R., para. 239 (ser. A) (1978).
109 Mrs. W. v. United Kingdom, 32 Collection of Decisions 190, 200 (Feb. 28,1983).
608 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

ensuring "rights". It is conceivable, for example, that a limited amnesty law

covering those "least responsible" for the commission of war crimes, coupled
with a truth commission and enacted for the purpose of ending a civil war,
could still be consistent with a State's obligation to "respect and ensure
respect" for the Geneva Conventions. On the other hand, the obligation to
ensure inalienable rights in the human rights conventions necessitates a
legal mechanism to guarantee enforceable rights.
A series of UN General Assembly resolutions also testify to an interna-
tional expectation that States will prosecute those accused of war crimes. For
example, a 1973 resolution on principles of international cooperation in the
detection, arrest, extradition and punishment of persons guilty of war crimes
and crimes against humanity affirmed that:
"War crimes and crimes against humanity, wherever they are committed,
shall be subject to investigation and the persons against whom there is
evidence that they have committed such crimes shall be subject to trac-
ing, arrest, trial and, if found guilty, to punishment."110
It has also been reiterated in other resolutions that a refusal "to coop-
erate in the arrest, extradition, trial and punishment" of such persons is
contrary to the United Nations Charter "and to generally recognized
norms of international law."111 While these resolutions are not conclusive
in themselves of a customary duty to prosecute all war crimes (particularly
as the scope of "war crimes" was not commonly agreed at the time), they do
provide evidence that the international community generally expects
States to enforce norms prohibiting war crimes by instituting criminal pro-
ceedings. This expectation means that States could legitimately prosecute
persons accused of war crimes even if they are not under an obligation to do
so. At the same time, an expectation of enforcement that does not amount
to an obligation does not preclude giving effect to certain amnesties which
do not, in the circumstances, contravene the duty to respect and ensure
respect for the Geneva Conventions or other "non-derogable" principles of
international law.

n o Principles of international co-operation in the detection, arrest, extradition and punishment of per-
sons guilty of war crimes and crimes against humanity, op. cit, (note 6), para. l.
i n Quoted in). Paust, "Universality and the responsibility to enforce international criminal law: No sanc-
tuary for alleged Nazi war criminals", Houston Journal of International Law, Vol. n , 1989, pp. 337-40, repro-
duced in International Criminal Law, op. cit. (note 26), p. 75.
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N° 851 609

Consequences of the Jus cogens nature of war crimes

In recent years, the notion has emerged that certain overriding princi-
ples of international law exist, forming a body of jus cogens norms from which
no derogation is permitted.112 Clearly accepted and recognized jus cogens norms
include the prohibitions of aggression, genocide, slavery, racial discrimination,
crimes against humanity, and torture.113 It is now increasingly accepted that
war crimes may be included in this category.114 If this contention is accepted,
the following questions then arise: what are the consequences of violating a jus
cogens norm and is any derogation from them also precluded?

112 Art. 53 of the 1969 Vienna Convention on the Law of Treaties provides a definition of a jus cogens or
peremptory norm of international law: "a peremptory norm of general international law is a norm accepted
and recognized by the international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law having the
same character." In the Barcelona Traction case (Second Phase), the IC) drew the distinction between obliga-
tions of a State arising vis-a-vis another State and obligations "towards the international community as a
whole", saying: "[s]uch obligations derive, for example, in contemporary international law, from the outlaw-
ing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights
of the human person, including protection from slavery and racial discrimination". ICJ Reports 1970, 3 at
p. 32. See also East Timor Case (Portugal v. Australia), ICj Reports 1995, 90 at p. 102.
113 The International Law Commission gave the following examples of treaties which would violate Art. 53
of the Vienna Convention on the Law of Treaties: "(a) a treaty contemplating an unlawful use offeree contrary
to the principles of the [UN] Charter; (b) a treaty contemplating the performance of any other act criminal
under international law; and (c) a treaty contemplating or conniving at the commission of such acts, such as
trade in slaves, piracy or genocide, in the suppression of which every State is called upon to co-operate (...)
treaties violating human rights, the equality of States or the principle of self-determination were mentioned
as other possible examples": Yearbook of the ILC1966, Vol. II. p. 248.
114 In the Nicaragua case, the IC) found that Article 3 common to the Geneva Conventions represented a
customary rule of international law, adding that the rules reflect "elementary considerations of humanity"
Nicaragua case, op. cit. (note 80), p. 104. In its Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, the Court recognized that the "fundamental rules [of humanitarian law] are to be observed
by all States whether or not they have ratified the conventions that contain them, because they constitute
intransgressible principles of customary law." op. cit. (note 99), p. 257, para. 79. Some judges went further
and clearly stated in separate opinions that the rules of war have acquired the status of jus cogens; see
Weeramantry j , p. 496, President Bedjaoui, p. 273, Koroma), p. 574. In the Haas and Priebke cases, Military
Court of Appeal of Rome/Supreme Court of Cassation, 7 March 1998/16 November 1998, the judgments
describe the principle of the non-applicability of statutory limitations to war crimes as a peremptory norm of
general international law, necessarily implying that war crimes also have a jus cogens nature. See also,
A. Cassese, "On the current trends towards criminal prosecution and punishment of breaches of international
humanitarian law", European journal of International Law,Vol. 9, No. 1; H-P. Gasser, "International humani-
tarian law", in H. Haug (ed.), Humanity for All, Henry Dunant Institute, Paul Haupt Publishers, Berne, 1993, at
p. 556; C. Bassiouni, "International crimes jus cogens and obiigatio erga omnes", in C. Joyner and
C. Bassiouni (eds), Reining in Impunity for International Crimes and Serious Violations of Fundamental
Rights, Association Internationale de Droit Penal, Ramonville-St.-Agne, 1998, at p. 267.
610 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

The ICTY elaborated on the consequences of breaching a jus cogens

norm in the Furundzija case115 concerning the crime of torture. In terms of
criminal liability, the Tribunal found that one of the consequences of the jus
cogens character bestowed by the international community upon the prohibi-
tion of torture is that "every State is entitled to investigate, prosecute and
punish or extradite individuals accused of torture, who are present in a terri-
tory under its jurisdiction.""6 This seems to suggest that the non-derogable
character of the norm attaches only to the norm itself and not necessarily to
its consequences. According to the ICTY, States have the "right" to prose-
cute those accused of jus cogens crimes,117 implying that this is not a manda-
tory obligation.
The ICTY's characterization of the consequences of jus cogens norms as
merely giving States the right to prosecute or extradite may be contrasted
with the assertion of other commentators that both the norm prohibiting the
commission of war crimes and the resulting obligation to prosecute or extra-
dite persons accused of these crimes have a peremptory character.118 Were
this conclusion to be correct, it would mean that States could never under
any circumstances derogate from their duty to prosecute such persons and
would also rule out the possibility of any international recognition of
amnesties for war crimes. The argument commonly used by advocates of this
position is that "the implications of jus cogens are those of a duty and not of
optional rights; otherwise, jus cogens would not constitute a peremptory
norm of international law."119 Support for the view that a peremptory charac-
ter may attach to the "prosecute or extradite" rule may be found to some
extent in the ICRC Commentary on the Geneva Conventions, which notes
that "repression of grave breaches was to be universal (...) [with those

115 Prosecutor v. Anto Furundzija, Judgement, 11-95-17/1-1,10 December 1998 .

116 Ibid., paras 153-157. The Court also found that other consequences include the fact that torture may
not be covered by a statute of limitations, and must not be excluded from extradition under any political
offence exemption. Ibid., para. 153.
117 Ibid., para. 156, citing the Supreme Court in Eichmann and the USA Court in Demjanjuk. Attorney-
Genera! of the Government of Israel v. Adolf Eichmann, 36 !LR 298; In the Matter of the Extradition of John
Demjanjuk, 612 F. Supp.544, 558 (N.D. Ohio 1985). The Court also refers to Demjanjuk v. Petrovsky, 776 F. 2d
571 (6th Cir. 1985), cert. Denied, 475 U.S. 1016 S. Ct. 1198, 89 L. Ed. 2d 312 {1986) for a discussion of the uni-
versality principle as applied to the commission of war crimes.
118 Bassiouni, "International Crimes", op. cit. (note 114), writes at p. 265: "Legal obligations which arise
from the higher status of such crimes include the duty to prosecute or extradite (...)"; see also Cassese, op.
cit. (note 114); Paust, "Universality", op. cit. (note 111), at pp. 337-40.
119 Bassiouni, "International Crimes", op. cit. (note 114), p. 266.
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N° 851 611

reasonably accused] sought for in all countries," adding that "the obligation
to prosecute and punish (...) [is] absolute."120
Similar arguments have been used by human rights bodies to argue the
extension of non-derogability to normally derogable rights (such as the right to
habeas corpus) which are necessary in order to uphold non-derogable rights
(such as the prohibition of torture).121 But their reasoning may be distinguished
from the "prosecute or extradite" rule: in the case of human rights it is argued
that the crime (violation of the non-derogable right) could not have occurred
if the other right had been of a non-derogable nature;122 conversely, the duty to
prosecute or extradite does not arise until after the war crime has been com-
mitted. It is therefore much more difficult to argue that the duty to prosecute
or extradite actually prevents the violation of peremptory norms. The only fea-
sible argument along these lines is that of the theory of deterrence, but it is
limited, as there is little evidence that criminal sanctions have a direct impact
on the behaviour of future perpetrators of international crimes.123
Furthermore, it is difficult to prove that the duty to prosecute every
case of war crimes is "a norm accepted and recognized by the international

120 Commentary to Geneva Convention VI, op. cit. (note 51), pp. 587-602.
121 For example, the Inter-American Court of Human Rights has held that the "essential" guarantees
which are not subject to derogation under the American Convention on Human Rights include habeas corpus,
amparo, and any other effective remedy which is designed to guarantee respect for the non-derogable rights
and freedoms in the Convention. Judicial Guarantees in States of Emergency, Advisory Opinion 009/87 of
6 October 1987, Inter-Am. Ct. H.R. (Ser. A) No. 9 (1987) at 41. in the Case of Barrios Aitos, the Court stated, "it
is unacceptable to use amnesty provisions (...) as a means of preventing the investigation and punishment of
those responsible for gross violations of human rights (...) all of which are prohibited as breaches of non-
derogable rights recognized under International Human Rights Law." Barrios Altos case, op. cit. (note 15),
para. 41.
122 The classic example is that of torture of detainees inside police stations, which would be much less
likely to occur if habeas corpus was a non-derogable right, because judges would have the chance to see the
detainee in person soon after the arrest and would be able to tell if he or she had been incorrectly treated
while in custody.
123 The International Law Association has pointed out that the deterrent effect should not be overstated,
noting that serious crimes on a massive scale continued to be committed in Kosovo after the Chief Prosecutor
of the ICTY had announced her intention of investigating and prosecuting these crimes in a letter addressed
to President Milosevic and other senior officers. Letter from Justice Louise Arbour to President Milosevic and
other senior officials, ICTY press release JL/PIU/389, 26 March 1999, quoted in International Law Association,
Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, Committee
on International Human Rights Law and Practice, London Conference 2000, p. 4, available at:
<http://www.ila-hq.org.>. During the Second World War, atrocities by German soldiers continued to be com-
mitted after the Allies had announced their intention to pursue the perpetrators "to the uttermost ends of the
earth". "Declaration of German Atrocities", 1 November 1943, Dep'tSt Bull., Vol. 9,1943, pp. 310 • 311.
612 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

community of States as a whole as a norm from which no derogation is per-

mitted". The historical - and continuing - practice of States of enacting
amnesties at the end of armed conflicts,124 the fact that the duty to prosecute
grave breaches under the Geneva Conventions may be derogated from if it
conflicts with an obligation under the UN Charter,125 and the more recent
State practice in the form of special courts in transitional societies prosecut-
ing only those "most responsible" for serious violations where mass war
crimes have been committed, all lead to conclude that the international
community does not at the present time consider that this rule has a non-
derogable character.
A distinction must be drawn, as the ICTY did in the Furundzija case,
between the non-derogable nature of the jus cogens norm (the ban on com-
mission of the crime) and the erga omnes consequences (the method of
enforcement) deriving from the breach of such a norm.126 The latter obliga-
tion concerns the means of compliance with the peremptory norm.127
Because erga omnes obligations are "[by] their very nature (...) the concern of
all States [and] all States can be held to have a legal interest in their protec-
tion...",128 under customary law, any State regardless of injury may invoke
the responsibility of another State if the obligation breached is owed to the

124 See O'Shea, op. cit. (note 19), for the historical use of amnesties, at pp. 5-23.
125 UN Charter, Art. 103. It could be argued, however, that the customary status of the "prosecute or
extradite" rule for grave breaches of the Geneva Conventions is not subject to the same hierarchy of rules
under treaty law.
126 The ICTY identified the rationale behind these consequences as follows: "While the erga omnes
nature (...) appertains to the area of international enforcement (lato sensu), the other major feature of the
principle proscribing torture relates to the hierarchy of rules in the international normative order [jus
cogens]". Furundzija case, op. cit. (note 115), para. 153 (emphasis added). This implies that the non-
derogable nature applies only to the norm prohibiting torture.
127 Examples of obligations erga omnes given by the IC) are rules deriving from the outlawing of acts of
aggression and genocide, and the rules and principles concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Barcelona Traction, op. cit. (note 112), p. 32; East
Timor case, op. cit. (note 112), ICJ Reports 1995, p. 90, at p. 102, para. 29; Legality of the Threat or Use of
Nuclear Weapons, op. cit. (note 99), p. 258, para. 83; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia Herzegovina v. Yugoslavia), Preliminary Objections, ICJ Reports
1996, p. 595, at pp. 615-616, paras 31-32. In.the Pinochet litigation in the United Kingdom, Lord Hope made
the point that the fact that an act has acquired the status of jus cogens under international law "compels all
states to refrain from such conduct under any circumstances and imposes an obligation erga omnes to
punish such conduct." Pinochet No. 3, House of Lords 24 March 1999, reproduced in R. Brody and M. Ratner
(eds), The Pinochet Papers: The Case ofAugusto Pinochet in Spain and Britain, Kluwer Law International, The
Hague, 2000, pp. 253-4.
128 Barcelona Traction, op. cit. (note 112).
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL. 85 N° 851 613

international community as a whole.129 However, the fact that a State has a

legal interest in ensuring that an obligation is complied with does not neces-
sarily translate into a positive duty to prosecute every instance of war crimes.
This would mean that domestic or international courts could legitimately
recognize a limited amnesty for war crimes where the failure to prosecute
does not conflict with the particular consequences attached to a serious
breach of jus cogens. Under customary law, there are two additional conse-
quences for all States when serious breaches of peremptory norms have been
committed.130 The first is that States must cooperate to bring any serious
breach to an end through lawful means. The second is that no State may rec-
ognize as lawful a situation created by a serious breach or render aid or assis-
tance in maintaining that situation.131 In the Furundzija case, the ICTY also
commented on the effects of a peremptory norm at the inter-State- level.
According to the Tribunal:
"it serves to internationally de-legitimise any legislative, administrative
or judicial act authorising torture. It would be senseless to argue, on the
one hand, that on account of the jus cogens value of the prohibition
against torture, treaties or customary rules providing for torture would be
null and void ab initio, and then be unmindful of a State, say, taking
national measures authorising or condoning torture or absolving its per-
petrators through an amnesty law. If such a situation were to arise, the
national measures, violating the general principle and any relevant treaty
provision, would produce the legal effects discussed above and in addition
would not be accorded international recognition.'"32
Care should be taken not to interpret the Tribunal's words as ruling out
any possibility of international recognition of amnesties for jus cogens crimes.
Only where recognition of the amnesty law is tantamount to authorizing,
condoning or recognizing as lawful the situation created by the illegal act

129 ILC Articles on State Responsibility, Art. 48, op. cit. (note 36).
130 According to the ILC Articles, a serious breach involves a "gross or systematic" failure by the respon-
sible State to fulfil the obligation. ILC Articles on State Responsibility, Art. 40(2), op. cit. (note 36).
131 The customary "particular consequences" of serious breaches of peremptory norms are articulated in
the ILC Articles on State Responsibility, Art. 41, paras 1 and 2. Art. 41 is without prejudice to the other conse-
quences that a breach may entail under international law (Art. 41(3)). See Nicaragua case, op. cit. (note 80),
p. too, para. 188; Legal Consequences for States in the Continuing Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), IC| Reports, 1971, p. 16 at p. 56,
para. 126.
132 Furundzija case, op. cit. (note 115), para. 155.
614 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

does the amnesty law lose all legal validity and the responsibility of the State
is incurred.133 Similarly, the Restatement (Third) of the Foreign Relations Law of
the United States adopts the view that a complete failure to punish repeated
or notorious violations of rights protected by customary law renders a gov-
ernment sufficiently complicit to generate State responsibility.134 While a
third State's recognition of a blanket amnesty for war crimes self-proclaimed
by an outgoing regime in another State would probably contravene both the
"non-recognition" and Restatement principles, the international recognition
of a principled and limited amnesty for war crimes brokered by the United
Nations, for example, for the purposes of securing peace in a State or region
and coupled with a truth commission would not amount to "condoning" or
"authorizing the situation created by the breach of the jus cogens norm, nor
indeed its recognition as lawful. Prosecutions that focus on those most
responsible for devising and implementing a past system of war crimes, and
are combined with a limited amnesty for persons not within this category,
would still be consistent with the obligations to terminate the serious breach
and not to recognize as lawful a situation created by a serious breach. By rec-
ognizing the limited amnesty, the courts of third States would likewise be
in keeping with the Restatement approach, under which customary law
would be violated by complete impunity for jus cogens crimes, but which
would not require prosecution of every person who committed such an
offence.135

International and "quasi-international" criminal courts: the possibility

o"f recognizing amnesties for war crimes
In terms of the possibility for international or quasi-international
courts to recognize amnesties for war crimes, the same legal principles

133 For example, this principle was enunciated in relation to any acquisition of territory brought about by
force in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
Among States in Accordance with the Charter of the United Nations, General Assembly Res. 2625 (XXV),
para. 10. The validity of the rule was affirmed by the ICj in the Nicaragua case, op. cit. (note 8o), p. 100, para.
188. The ICJ's advisory opinion in the Namibia (South West Africa) case also called for a non-recognition of the
situation created by the denial by a State of the right to self-determination, op. cit. (note 131), p. 56, para. 126.
134 Restatement (Third) of the Foreign Relations Law of the United States (1987), para. 702. In Henfield's
Case and 1 Op. Att'y Gen. 68,69 (1797), the Court found that if a State did not initiate prosecution of one rea-
sonably accused of international crime, it was recognized that the State could become an "accomplice" to
illegality and be subject to various international sanctions.
135 Orentlicher, op. cit. (note 14), p. 2599.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 615

discussed above generally apply. However, the statutes of courts will often
specify whether or not amnesties for certain crimes will or will not be recog-
nized. In terms of the Rome Statute of the International Criminal Court,
commentators have argued that an "amnesty exception" may be inferred
from several of its provisions: (1) on the basis of Article 17 (1) (b), which pro-
vides that the ICC will declare a case inadmissible where the State which
has jurisdiction over the case decides not to prosecute the accused, unless the
decision resulted from the unwillingness or inability of the State genuinely
to prosecute; (2) on the basis of Article 53(2)(c), which allows the
Prosecutor to refuse prosecution where he or she concludes that "a prosecu-
tion is not in the interests of justice, taking into account all circum-
stances",156 (3) on the basis of Article 16 giving the Security Council the
power to defer proceedings; and (4) under Article 15, which gives the
Prosecutor discretion to decline to prosecute proprio moto.131
The Statutes of both the ICTY and the ICTR are silent on the possi-
bility for the Tribunals to recognize amnesties, but given the fact that these
tribunals were established by Security Council resolutions which identified a
need to prosecute persons accused of serious international crimes in order to
facilitate the restoration and maintenance of peace in those regions,138 it
would be contrary to their very purpose to exempt an accused from prosecution
on the basis of an amnesty in these particular contexts. As for other interna-
tional or quasi-international courts set up in recent years to deal with war

136 The problem lies in interpreting what is meant by "interests of justice". The term is undefined. The
provision itself states that in making the decision the Prosecutor should take into account the gravity of the
offence, the interests of the victims, the age or infirmity of the perpetrator and the role he or she played.
However, this list is not exhaustive. Gavron makes the point that while it is potentially arguable that a prose-
cution that is likely to spark further atrocities is not in the interests of justice, this involves speculating about
future events and contradicts the deterrence argument. Gavron, op. cit. (note 39), p. 111.
137 On a discussion of these possible ways to accommodate amnesties within the Rome Statute, see also
generally, M. Scharf, "The amnesty exception to the jurisdiction of the International Criminal Court", Cornell
International Law journal, Vol. 32, 1999, p. 507; R. Wedgwood, "The International Criminal Court: An
American view", European Journal of International /.aw. Vol. 10,1999, p. 97; G. Hafner, K. Boon, A. Rubesame
and J. Huston, "A response to the American view as presented by Ruth Wedgwood", European Journal of
International Law, Vol. 10,1999, p. 107.
138 Security Council resolutions 827, S/RES/827 (1993), 27 May 1993, and 955, (1994) respectively. In
Security Council resolution 827 (1993) which established the ICTY, the Security Council stated that it was
"[convinced that (...) the establishment as an ad hoc measure by the Council of an international tribunal and
the prosecution of persons responsible for serious violations of international humanitarian law would enable
this aim [of putting an end to such crimes] to be achieved and would contribute to the restoration and main-
tenance of peace." Security Council resolution 827, preambular para. 6.
616 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

crimes (and other international crimes), the statutes establishing the courts
generally reject any possibility of recognition of amnesties for international
crimes. The Statute of the Special Court for Sierra Leone expressly pro-
hibits recognizing amnesties for serious international crimes within the
jurisdiction of the Court,139 as does the regulation establishing a
Commission for Reception, Truth and Reconciliation in East Timor140 and
the Law on the Extraordinary Chambers in Cambodia.141 It could be argued
that this rejection of amnesties for international crimes in the statutes of
these courts is evidence of their illegality under international law and the
impossibility for courts to give them recognition. However, the fact that
these instruments needed to explicitly rule out recognizing amnesties for
international crimes suggests that in the absence of a clause directing a
court to disregard such amnesties, the courts would normally be able to rec-
ognize an amnesty for international crimes insofar as this was in accor-
dance with international law.

Limits which international law imposes on a domestic or

international court's ability to recognize an amnesty for war crimes
International law as a legal regime needs to accord with political real-
ities in order to remain relevant, but should always be interpreted in a man-
ner consistent with its rationale. If credence is given to the notion of transi-
tional or restorative justice which secures the principle of legal adjudication
of violations and consequently the basic tenets of democratic order and fun-
damental human rights, while not requiring unlimited prosecution, then
limited amnesties within internationally accepted parameters can be consid-
ered consistent with the fundamental principles of international law as well
as with the purposes and principles of the UN Charter.
It is thus necessary to determine whether or not an amnesty law is jus-
tified under international law. It is possible to glean from State practice and
the decisions of national and international courts the elements which
would seem to point towards an acceptable form of amnesty. In summary
these would appear to be the following cumulative criteria: (1) the amnesty

139 Statute of the Special Court for Sierra Leone, Art. 10,16 January 2002.
140 Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation
in East Timor, Schedule 1(4) and Section 22.2, UNTAET/REG/2001/10,13 July 2001.
141 Art. 40 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 15 January 2001.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 617

is prescribed and limited to achieving certain objectives, in particular, the

objectives of securing peace and initiating or furthering reconciliation;
(2) the amnesty is accompanied by other accountability measures such as
truth commissions, investigatory bodies, or lustration; (3) the amnesty is
not self-proclaimed, i.e., it is the result of negotiation between the outgo-
ing and incoming regimes or of a peace deal brokered by international par-
ties, such as the United Nations; and (4) the amnesty only applies, to lower
ranking members of armed forces or groups or those considered "least
responsible" for the perpetration of international crimes. Attempts to
exonerate persons accused of war crimes which do not fit into the above
criteria, or which otherwise fail to conform to the fundamental principles
of international law, should not in principle be accorded recognition by
domestic or international courts.

Validity on the basis of the purpose of the amnesty

This basis for validity is founded on the argument that but for the
recognition of a limited amnesty for war crimes it will be impossible, or at
least much more difficult, to secure peace or to initiate or further the process
of reconciliation which may be in conflict with a policy of unlimited prose-
cution. This argumentation was used by the Constitutional Court of South
Africa to justify the broad amnesties granted under the Promotion of
National Unity and Reconciliation Act 34 of 1995.142 While this judgment
may be criticized for failing to thoroughly examine conventional and cus-
tomary rules that require prosecution of international crimes and the ques-
tion whether the Interim Constitution intended (or was able) to overrule
these,143 there is considerable evidence on the other hand that the "amnesty
for truth" deal negotiated between the outgoing apartheid regime and the
new government prevented the outbreak of a civil war.144

142 Judge Mahomed found that "but for a mechanism for amnesty, the 'historic bridge'[the negotiated
transition to democratic rule] itself might never have been erected." AZAPO case, op. at. (note 18), para. 19.
143 The Court only considered the question of whether the provisions of the 1949 Geneva Conventions
requiring prosecution for "grave breaches" were applicable (which it held were not), but made no attempt to
examine rules relating to genocide, torture, war crimes or crimes against humanity. Given that apartheid has
been deemed a crime against humanity by the General Assembly and the 1973 International Convention on
the Suppression and Punishment of the Crime of Apartheid, it is surprising that no attempt was made to add-
ress the question whether customary international law requires the prosecution of those who commit this
crime.
144 See Scharf, "The amnesty exception", op. cit. (note 138), p. 510.
618 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

The UN has also shown support for amnesty agreements covering

international crimes that appear necessary to end military stand-offs.145 In
recent years, however, there has been a tendency for it to reject the possibil-
ity of amnesties for international crimes in peace agreements.146 Nonetheless,
this practice does not foreclose all possibility of recognition of such
amnesties, but merely puts the legal threshold and justification requirements
for the recognition of amnesties for war crimes extremely high. In order to
recognize an amnesty for war crimes, a domestic or international court would
have to demonstrate that the amnesty is justified under the "but for" test as
enunciated above. It may be noted that such a test stands in contrast to the
Security Council's resolutions requesting the ICC to refrain from exercising
jurisdiction over nationals of non-party States to the Rome Statute which
fail to positively identify a threat to the peace to justify the non-prosecution
of such nationals accused of international crimes.147

Validity on the basis that the amnesty is accompanied by other

accountability measures
This justification stems from the idea that there are significant nuances
to the concept of justice in transitional societies.148 A "restorative justice"
approach suggests that targeted prosecution together with a range of other
accountability mechanisms fulfil a State's duty to address accountability and
put an end to impunity. Mr Joinet, in his "Final Report on the question of

145 For example, in 1993 the United Nations gave its full support to the Governors Island Agreement
which granted full amnesty to members of General Cedras' and Brigadier General Biamby's military regime
accused of committing crimes against humanity in Haiti from 1990-1994, The Security Council described the
Agreement as "the only valid framework for resolving the crisis in Haiti". Statement of the President of the
Security Council, UN SCOR, 48th Sess., 329th metg., at 26, UN Doc. S/INF/49 (1993)- See M. Scharf,
"Swapping a'mnesty for peace: Was there a duty to prosecute international crimes in Haiti?", Texas
International Law journal, Vol. 31, No. 1,1996, pp. 1-42.
146 For example, although the UN endorsed the 1999 Lome Peace Agreement ending the civil war in Sierra
Leone, which included a broad amnesty, UN Special Representative for Sierra Leone Francis Okelo made an
oral disclaimer that the amnesty does not apply to genocide, crimes against humanity, war crimes and other
serious violations of international humanitarian law. UN Doc. S/1999/836, p. 2, para. 1. See generally,
C. Stahn, "United Nations peace-building, amnesties and alternative forms of justice: A change in practice?",
International Review of the Red Cross,-Vol. 84, No. 845, 2002, p. 191.
147 See text accompanying notes 38-45.
148 Teitel explains that transitions imply a paradigm shift in the conception of justice: while in normal
times the law maintains law and order, in periods of political upheaval, the legal responses create a "sui
generis paradigm of transformative law". Teitel, op. cit. (note 2), p. 2014.
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N°851 619

the impunity of perpetrators of violations of human rights", proposed under

Principle 19 - Purpose of the Right to Justice - that:
"There can be no just and lasting reconciliation (...) without an effective
response to the need for justice; the prerequisite for any reconciliation is
forgiveness which is a private act that implies that the victim knows the
perpetrator of the violations and that the latter has been able to show
repentance. Over and above any verdict, that is the essential purpose of
the right to justice."149
This conception of justice implies that a limited amnesty combined
with an effective truth commission could satisfy "the essential purpose of the
right to justice".150 Whereas in the past truth commissions have been set up as
a substitute for trials, authoritative sources have made it clear that they are
insufficient in themselves to constitute an adequate response by States to seri-
ous violations.151 However, there has been a concerted move, headed by the
United Nations, towards establishing truth commissions as a complementary
mechanism for trials, together with a restricted amnesty limited to those "least
responsible" for perpetrating the least serious crimes. This development can be
seen in the post-conflict measures adopted in Sierra Leone132 and East Timor153
and may well also be applied to Cambodia,154 Afghanistan155 and Iraq.156

149 Joinet Report, op. cit. (note 22), Principle 19.

150 Gavron, op. cit. (note 39), p. 111.
151 See, for example, Garay Hermonsilla et al. v. Chile, Case 10.843, Report No. 36/96, Inter-Am, C.H.R.,
OEA/Ser.L/V/11.95 Doc. 7 rev. at 156 (1997); Inter-American Commission on Human Rights, Report No. 26/92
(El Salvador), 82nd Sess., OEA/ser. L/V/ll/82 (24 September 1992); Report No. 29/92 (Uruguay), 82nd Sess.
OEA/ser. L/V/II.82, Doc. 25 (2 October 1992); Report No. 24/92 (Argentina), 82nd Sess. OEA/ser. L/V/II.82,
Doc. 24 (2 October 1992).
152 See Truth and Reconciliation Commission Act 2000 of 22 February 2000 (Sierra Leone) and Art. XXVI
of the 1999 Lome Peace Agreement. See also Briefing Paper on the Relationship between the Special Court
and the Truth and Reconciliation Commission, Office of the Attorney General and Ministry of Justice Special
Court Task Force, Planning Mission 7-18 January 2002, p. 8.
153 Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation
in East Timor, UNTAET/REG/2001/10,13 July 2001.
154 S. Linton, "KR trials are vital, but won't solve everything", Phnom Penh Post, Issue 11/26,
20 December 2002 - 2 January 2003.
155 President Karzai of Afghanistan has pledged to set up a truth commission which would seek to un-
cover the atrocities committed over two decades of war and to seek accountability for perpetrators of past
abuses of human rights. See statement by Mary Robinson, United Nations High Commissioner for Human
Rights, at the opening of the 58th Session of the Commission on Human Rights, Geneva, 18 March 2002.
156 A. Boraine, "Let the UN put Saddam on trial", International Herald Tribune, 21 April 2003.
620 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

The introduction of the gacaca151 trials in Rwanda as a way to relieve the over-
crowding in jails of those accused of participating in the 1994 genocide and
awaiting trial at the ICTR also reflects this approach of combining prosecution
with other accountability measures dealing with less serious offences.158

Validity on the basis of how the amnesty deal is achieved

Where amnesties are granted through non-legitimate means, for exam-
ple, through a decree of a de facto government or a law passed by a non-
democratically elected legislature, they may be denied legal force owing to their
irregular means of promulgation and may be summarily overturned.159 In Spain,
for example, amnesty laws passed for political reasons by military regimes in
Chile and Argentina are not considered to be a bar to the exercise of universal
jurisdiction.160 Furthermore, amnesties which cover crimes committed by the
State or its agents allow the State to judge its own case. This result violates the
general principle of law forbidding self-judging.161 Self-proclaimed amnesties are
therefore unlikely to be considered valid under international law.162

157 Gacaca is a Kinyarwanda term for the grass on which traditional village assemblies used to be held. In
practice, it means that individuals from the communities act as "people's judges". The law instituting the
gacaca was adopted on 12 October 2000 by the National Assembly of Transition. See L. Olson, "Mechanisms
complementing prosecution", International Review of the Red Cross, Vol. 84, No. 845, 2002, p. 186.
158 There are approximately 120,000 individuals detained in connection with the 1994 genocide in
Rwanda. It is has been estimated that Rwandan national courts and the ICTR would need at least 100 years to
try all of them. Ibid.
159 See for example Garay Hermonsilla et at. v. Chile, op. cit. (note 152): "A de facto government lacks legal
legitimacy (...). It is not juridically acceptable that such a regime should be able to restrict the actions of the cons-
titutional government succeeding it as it tries to consolidate the democratic system, nor is it acceptable that the
acts of a de facto power should enjoy all those attributes that accrue to the legitimate acts of a de jure power."
See also L. Joinet and E. Guisse, "Study on the question of the impunity of perpetrators of human rights viola-
tions", UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc.
E/CN.4/Sub.2/i993/6, 19 July 1993; W. Burke-White, "Reframing impunity: Applying liberal international law
theory to an analysis of amnesty legislation", Harvard International Law journal, Vol. 42, No. 2,2001, p. 479..
160 See V. Buck, "Droit espagnol", in A. Cassese and M. Delmas-Marty (eds), jundictions nationales et cri-
mes internationaux, Presses Universitaires de France, Paris, 2002, pp. 154-155.
161 The Permanent Court of International Justice referred to the "well-known rule that no one can be
judge in his own suit" in the 1925 Frontier between Iraq and Turkey case. Art. 3, para. 2 of the Treaty of
Lausanne (frontiers between Turkey and Iraq), 1925 PCIJ (ser. B), No. 12, p. 32 (Nov. 21,1925).
162 See Inter-American Commission on Human Rights, Report No. 133/99, Case 11,725 Carmelo Soria
Espinoza (Chile), 19 November 1999, para. 76; Case of Barrios Altos, op. cit. (note 15), para. 41: "States
parties to the Convention who adopt (...) self-amnesty laws, are in breach of articles 8 and 25 of the
Convention. Self-amnesty laws leave victims defenceless and perpetuate impunity and are therefore clearly
incompatible with the letter and spirit of the American Convention."
RICRSEPTEMBRE IRRC SEPTEMBER 2003 VOL.85 N°851 621

On the other hand, amnesties negotiated by incoming and outgoing

regimes to facilitate the transition, as in the case of South Africa, or those
brokered or approved by the United Nations, are more likely to be recog-
nized by foreign or international courts. It is instructive to note, for example,
that during the apartheid regime the UN General Assembly strongly con-
demned apartheid as a gross violation of human rights and a crime against
humanity and called on States to prosecute offenders under the. Apartheid
Convention.161 Since the proclamation of the new Constitution containing
the amnesty clause in its final section, the General Assembly has adopted
resolutions that welcome the transition to democracy and are silent on the
duty to prosecute.164

Validity on the basis of who receives an amnesty

This basis for the validity of limited amnesties derives from the view
that amnesties should be applicable only to subordinates, and that those
"most responsible" should not be able to benefit from them. Where large-
scale violations of the laws of war have been committed, the prosecution of all
alleged offenders is neither capable of preventing such crimes in the future,
nor would it necessarily have been effective as a deterrent.165 Furthermore, a
requirement that a government should attempt to prosecute everyone who
may be criminally liable could be hugely destabilizing for the social structure,
as well as placing impossible demands on the judicial system, which is usually
weak in transitional societies. It has been strongly argued by a number of
commentators that in this situation a limited programme of exemplary pun-
ishment could have a significant deterrent effect and thereby achieve the aim
justifying the general duty to punish atrocious crimes.166 This prin-
cipled/exemplary approach has been adopted in the Statute of the Special
Court for Sierra Leone and the Law Establishing the Extraordinary Court of
Cambodia, both of which only have jurisdiction over those bearing the most

163 E.g. LJNGA Res/36/13, 28 October 1981, and A/Res/37/47, 3 December 1982.
164 E.g. UNGA Res/48/159, 20 December 1993.
165 See Ratner and Adams, op. cit. (note 14), p. 338.
166 See Orentlicher, op. cit. (note 14), p. 2601. Campbell, on the other hand, has argued that since exem-
plary trials mean only a small number of trials, individual violators will know that the chances of being pun-
ished are remote, and the deterrent value will be correspondingly low. C. Campbell, "Peace and the laws of
war: The role of international humanitarian law in the post-conflict environment", International Review of the
Red Cross, No. 839, 2000, p. 630.
622 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

responsibility for crimes committed on their territories.167 The "jurisdictional

threshold" clause in Article 8 of the Rome Statute directing the ICC to focus
on war crimes committed as part of a plan or policy could also suggest that the
ICC will concentrate mostly on persons responsible for devising and imple-
menting plans for the commission of such crimes. This indicates that
amnesties for war crimes could be recognized for persons considered "least
responsible", whereas those in positions of authority should not be covered.
Prosecution of persons who were most responsible for designing and
implementing a policy or plan to commit war crimes, together with a limited
amnesty for those considered "least responsible", would fulfil a State's duty
not to condone such violations or recognize as lawful a situation created by
the breach of jus cogens.168 This theory is also consistent with the Restatement
view, according to which customary law would be violated by complete
impunity for repeated or notorious instances of human rights violations, but
would not require prosecution of every person who committed such an
offence.169
This conclusion has significant ramifications with regard to the inter-
national principle of immunity for foreign heads of State and other high-
ranking officials. Almost all the special courts set up to deal with war crimes
and other serious international crimes exclude immunity for State officials.
However, in the light of the ICJ decision in the Arrest Warrant case, in which
the Court upheld the absolute immunity of incumbent ministers of foreign
affairs under customary law,170 domestic and quasi-international courts may
face a further legal obstacle in prosecuting persons most responsible for the
commission of war crimes. In some domestic cases dealing with the immu-
nity of foreign States the jus cogens nature of war crimes has been used to

167 Art. 1 of the Statute of the Special Court for Sierra Leone, op. cit. (note 140); Art. 1 of the Law on the
Establishment "of Extraordinary Courts of Cambodia, op. cit. (note 142). With regard to the phrase "those
bearing, the greatest responsibility" in the Statute of the Special Court for Sierra Leone, the UN Secretary-
General has stated that it "does not mean that the personal jurisdiction is limited to the political and military
leaders only. Therefore, the determination of the meaning of the term 'persons who bear the greatest respon-
sibility' in any given case falls initially to the Prosecutor and ultimately to the Special Court itself." Letter
dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council,
UN Doc. S/2001/40. This clarification is important, as it avoids the criticism that selective prosecutions which
elevate official status over traditional understandings of criminal liability vitiate the principle that that the
level of fault should determine criminal responsibility. See Teitel, op. cit. (note 38), p. 2041.
168 See notes 112-136 above and accompanying text.
169 See notes 135-136 above and accompanying text. Orentlicher, op. cit. (note 14), p. 2599.
170 See note 8.
RICRSEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 623

argue the denial of sovereign immunity, mainly on the ground that conduct
which is a criminal offence under international law cannot simultaneously
be protected by international law.171 This is a cogent argument for denying
immunity to authorities or officials of foreign States who are responsible for
plans or policies for the commission of war crimes. The consequences of the
jus cogens nature of war crimes in regard to the principle of immunity was an
issue not touched upon in the Arrest Warrant case.172
It is submitted that there are strong arguments for denying the immu-
nity of former high-ranking State officials on the basis of the jus cogens
nature of the prohibition of war crimes, which supersedes any other principle
of international law, including immunities of foreign heads of State.173
Furthermore, to uphold the immunity of a person accused of ordering the
commission of large-scale war crimes would arguably amount to recognizing
a situation created by the serious breach of a peremptory norm as lawful, a
result clearly prohibited under customary international law. Considering
that immunities for foreign officials are a privilege deriving from the sover-
eign independence of States, it is illogical that international law would give
protection to State officials for acts deemed so serious that they are prohib-
ited in all circumstances by that same international legal system.

171 For example, Lord Brown-Wilkenson in Pinochet No. 3, op. cit. (note 127), said: "A former head of state
cannot show that to commit an international crime is to perform a function which international law protects
by giving immunity." In the Greek case of Prefecture ofVoiotia v. Federal Republic of Germany, dealing with
violations of Articles 43 and 46 of the Hague Regulations which the Court found to be jus cogens crimes,
the court of first instance found that when a State breaches a jus cogens crime, there is a tacit waiver of
sovereign immunity. Furthermore, recognition of immunity would amount to collaboration in the crimes.
Thirdly, violations of jus cogens norms cannot be a source of legal rights. Case No. u/2000, Areios Pagos
(Hellenic Supreme Court), 4 May 2000, reported by Gavounel! and Banktekas in the American journal of
International Law, Vol. 95, 2001, p. 198.
172 In the possible upcoming case before the ICJ concerning the international arrest warrant issued by the
Special Court for Sierra Leone against former Liberian President Charles Taylor, the ICJ will first have to decide
whether the nature of the Special Court, based on an agreement between the government of Sierra Leone
and the United Nations, is equivalent to that of an international criminal court. According to the ICJ in the
Arrest Warrant case, "certain international criminal courts" may constitute an exception to the principle of
immunity of incumbent high-ranking State officials. Arrest Warrant case, op. cit. (note 8), para. 61. If the ICJ
finds that the Special Court is binding only on Sierra Leone and the United Nations, in spite of the Security
Council's support for the Court, the ICJ will then have the opportunity to assess the import of the jus cogens
nature of the crimes of which Taylor is accused for his possible immunity under customary international law.
173 The fact that the ICJ listed a number of exceptions to the immunities principle in the Arrest Warrant
case indicates that this customary principle is not a peremptory norm of jus cogens and should therefore be
derogated from when in conflict with a peremptory norm of jus cogens.
624 AMNESTY FOR WAR CRIMES: DEFINING THE LIMITS OF INTERNATIONAL RECOGNITION

This may be contrasted with the argument that certain limited

amnesties for jus cogens crimes such as war crimes may be recognized because
they do not constitute a recognition of the situation created by the breach of
the peremptory norm as lawful. In the case of an internationally acceptable
amnesty, this bar to prosecution of war crimes is motivated by the need to
facilitate the most effective progress towards peace; its purpose is certainly
not to protect those most responsible for such crimes. In addition, other
accountability measures instituted in conjunction with the amnesty would
ensure that the truth about the violations is documented, thereby enabling
victims to have some sense of justice being done.

Conclusion
Obligations incumbent on States with regard to the enforcement of
rules prohibiting war crimes do not preclude international recognition of
restricted amnesties for war crimes which nonetheless enable societies to
acknowledge and condemn offences committed during conflict or repressive
rule.
Under customary international law, States may be either entitled or
obliged to prosecute those accused of war crimes depending on the nature of
the offence. The trend towards a customary duty to prosecute all war crimes
should not be equated with a total invalidation of amnesties for such
offences. What has been rejected by the international community is the cul-
ture of impunity, which was seen as an impediment to peace and the anti-
thesis of all notions of justice. Amnesties covering war crimes may be recog-
nized in the limited circumstances where their non-recognition would
amount to a threat to peace and security, for example, by undermining a
peace agreement or provoking the overthrow of a newly established civilian
government. Even in these circumstances, only those amnesties which are
limited to internationally acceptable parameters and which are not inconsis-
tent with the fundamental obligations of States under customary law should
be accorded international validity.
RICR SEPTEMBRE IRRCSEPTEMBER 2003 VOL.85 N°851 625

Resume

Amnistie pour crimes de guerre: definir les limites de la reconnaissance

Internationale

Yasmin Naqvi

Laction penale contre les personnes accusees d'avoir commis des crimes de
guerre est un aspect fondamental du droit d'une victime a la justice. Toutefois,
dans les conflits armes ou des violations graves du droit international ont ete perpe-
trees massivement, il est souvent necessaire d'etablir un equilibre entre le droit des
victimes d obtenir justice de maniere tangible et le besoin, pour I'Etat territorial, de
traiter les atrocites passees de faqon a ne pas engendrer de nouvelles violences et a
stimuler le processus de reconciliation. Dans de telles circonstances, une justice
reparatrice associant des amnisties limitees d d'autres mecanismes de responsabilite
peut constituer un moyen a"assurer I'Etat de droit tout en tenant compte de la com-
plexite du processus de transition. Quand des Etats vivant une situation de transi-
tion prodament de telles amnisties, il est important d'etablir si celles-ci seront
reconnues par la communaute internationak.
Cet article analyse les regies et les principes internationaux qui fondent ou
etayent la decision que prend un tribunal national ou international de reconnoitre
ou non une amnistie couvrant les crimes de guerre. Hauteur s'attache d'abord a
determiner s'il existe un devoir coutumier de traduire en justice les personnes accu-
sees de crimes de guerre, quels quils soient. Les effets du caractere de jus cogens
de Vinterdiction de commettre des crimes de guerres sont egakment examines, tout
comme la pratique plus recente des Etats d'etablir des tribunaux speciaux pour
juger les personnes accusees de crimes de guerre. L'artick fait valoir que le droit
international n'interdit pas aux tribunaux nationaux et internationaux d'accorder
une amnistie limitee a ceux qui sont considires comme «les moins responsabks » de
la commission des crimes de guerre, lorsque Vamnistie est associee a des mesures
de controk et vise a faciliter I'instauration d'une paix durabk.
626 REVUE INTERNATIONALE DE LA CROIX-ROUGE INTERNATIONAL REVIEW OF THE RED CROSS

Elements of War Crimes under the

Rome Statute of the International
Criminal Court - Sources and
Commentary

by Knut Dormann, with contributions

by Louise Doswald-Beck and Robert
Kolb

This is an important publication which

provides a critical insight into the
"travaux preparatoires" of the
Preparatory Commission leading to the adoption of the ele-
ments of war crimes. Also containing an analysis of exist-
ing case law related to each war crime in the Statute, it is
a unique tool particularly for judges, prosecutors and inter-
national and national lawyers in interpreting the war crimes
-provisions.

ICRC and Cambridge University Press, 2003

English, £70.00 / Ret ISBN 0-521-81852-4
To order this publication, please contact
Cambridge University Press directly.
Phone: +44 1223 326050
e-mail: [email protected]