In This Article Amnesty and International Law

  • Introduction
  • History of the Use of Amnesties and the Growth of the Anti-Impunity Campaign
  • Conditional Amnesties and Non-Judicial Remedies

International Law Amnesty and International Law
by
Louise Mallinder
  • LAST MODIFIED: 25 October 2018
  • DOI: 10.1093/obo/9780199796953-0172

Introduction

International law has no agreed definition of amnesty, largely because state practice on defining and using amnesties differs enormously. Amnesty, as understood in this article, refers to measures adopted by states to release categories of individuals or offenses from criminal liability. States adopt amnesties for different purposes depending on context. These purposes can be both positive and negative. Amnesties can remedy human rights violations by releasing those who have been arbitrarily detained or removing obstacles to refugees returning home. In contrast, amnesties can create impunity for perpetrators of international crimes and gross human rights violations. Most commonly, they are enacted to facilitate political transitions and, in post-conflict settings, to encourage combatants to disarm, demobilize, and reintegrate. Over the past two decades, international law has gradually imposed restrictions on applying amnesties to perpetrators of genocide, war crimes, and crimes against humanity. Since 2004, the United Nations (UN) has proclaimed that amnesties are impermissible for gross violations of human rights, such as torture, enforced disappearance, extrajudicial executions, and sexual violence. These restrictions primarily highlight conflicts that can arise between states’ duties to prosecute international crimes and serious violations and the role of amnesty in preventing prosecutions. Where amnesties’ legal effects also extend to preventing civil liability or truth recovery, they can impede states fulfilling their obligations to investigate and provide a remedy for violations. These conflicts between amnesties and states’ obligations to investigate, prosecute, and provide reparations arise most forcefully where these obligations are enshrined in international treaties. Academic literature reveals there is much less consensus regarding the existence of a customary prohibition on amnesties for international crimes and serious violation due to lack of consistent state practice. Ascertaining the international legal status of amnesties is further complicated by the fact that international courts have only had to grapple with broad, unconditional amnesties for international crimes and there is no international jurisprudence on the legality of conditional amnesties that require perpetrators to participate in processes to deliver peace, truth, accountability, and/or reparations, or which are designed to provide testimony to support selective prosecution strategies. Given the ambiguities that exist in the international legality of amnesties, this article presents literature with a range of viewpoints. Although literature on the duty to prosecute and other human rights obligations is relevant to understanding the status of amnesties under international law, this article focuses on amnesty-specific literature. This article begins by reviewing general texts on amnesties and international law. It then summarizes texts relating to the history of the use of amnesties and the emergence of the anti-impunity norm. The following section works through academic literature exploring legal sources regulating the use of amnesties, before turning in the next section to writings on the extraterritorial effects of national amnesties. The final section outlines texts on conditional amnesties and non-judicial remedies.

General Overviews

Traditionally, the use of amnesties was viewed primarily as a matter of domestic law and policy. At the international level, they regularly featured in agreements to end interstate armed conflicts, but their use in such settings was subject to negotiations between states rather than international legal regulation. As noted in the Introduction, over the past two decades, the development of the duty to prosecute in international criminal law and international human rights law has made it increasingly common to argue that international law now restricts the use of certain forms of amnesty. However, such observations are often succinctly made in scholarly literature and policy papers, and there have been very few texts that have sought to provide detailed analysis of the evidence relating to the legality of amnesties under international law. This section focuses on general overview texts that have sought to answer the question of whether and when amnesties are legal under international law.

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