F. The Unresolved Question of Amnesty
In recent years, there has been a robust debate about whether evolving international principles opposing amnesty for serious crimes under international law may be too inflexible. In particular, many have urged that amnesties can play an important role in ending violent conflict or in clearing the way for traditional processes of reconciliation to operate effectively in the aftermath of mass atrocity.
It is difficult to disagree with the accuracy of this overall assessment of the state of affairs made by Diane Orentlicher, a leading authority on the matter.133 In view of the importance of the question of amnesties, this symposium includes two contributions, those by Sarah Nouwen and Hugo Relva, which address the topic in greater detail.134 The fact that they reach very different conclusions confirms the impression that the legal and the legal policy issue before us is a particularly thorny one.
132 China’s concern regarding the immunity issue is reported in clear terms by Shang and Zhang, supra note 18, at 362-364.
133 Orentlicher, supra note 101, at 221-222.
134 See S.M.H. Nouwen, ‘Is There Something Missing in the Proposed Convention on Crimes Against Humanity?
A Political Question for States and a Doctrinal One for the International Law Commission’ and H.A. Relva, ‘Three Propositions for a Future Convention on Crimes Against Humanity: The Prohibition on Amnesties, Military Courts, and Reservations’ both in this issue of the Journal.
1. The Commission’s Proposal for the Way Forward: ‘An Emphasis on Punishment Coupled with a Small Backdoor to Muddle Through’
The Draft Articles do not address the question of amnesty explicitly. On the basis of a meticulous analysis of Draft Articles 8 to 10 in light of the amnesty question, Nouwen concludes that, while the first sentence of Draft Article 10 leaves the door a little open for a national prosecutor to comply with an amnesty decision taken by the legislator, the duty to make a preliminary inquiry (Draft Article 9(2)) and the second sentence of Draft Article 10, depending on the relevant national law, would make it extremely difficult for a national prosecutor (and a judge) to accept a negotiated settlement of a violent conflict which provides for an amnesty for crimes under international law committed in the course of that conflict. The comparatively cursory sections of the commentaries to Draft Article 10 do not do much to clarify the picture.
They acknowledge that ‘the obligation upon a State to submit the case to the competent authorities may conflict with the ability of the State to implement an amnesty’.135 To this they add ‘that an amnesty adopted by one State would not bar prosecution by another State with concurrent jurisdiction over the offence’.136 They end on the sibylline note: Within the State that has adopted the amnesty, its permissibility would need to be evaluated, inter alia, in the light of that State’s obligations under the present draft articles to criminalize crimes against humanity, to comply with its aut dedere aut judicare obligation, and to fulfil its obligations in relation to victims and others.137
The emphasis on punishment is clear, but the reader gets the sentiment that the Commission is struggling with the question of whether it is advisable to insist on the criminal justice avenue under all circumstances. Hence, a small and unspecified backdoor appears to be left open to ‘muddle through’ in case the dire need for an alternative solution arises.
2. The Preferable Approach: Acknowledging and Dealing with a Genuine Dilemma Relva criticises the existence of this backdoor for states to ‘to get away’ with an amnesty decision and he demands that a ‘general prohibition of amnesties’ be included in the Draft Articles.138 It may safely be assumed that many human rights activists are in agreement with this call. Yet, it is open to serious doubt whether the legal policy stand in support of a rigorous prohibition of amnesties would be best served by the attempt to include explicit language to
135 2017 ILC Report, supra note 11, § 8, at 86.
136 Ibid., § 11, at 88.
137 Ibid.
138 Relva, supra note 134. In her contribution to the symposium, Sadat takes the same view.
that effect in the proposed convention. In that context, Orentlicher’s word of caution bears recalling:
With vigorous debate on these issues still very much on their way, they are unlikely to be resolved during negotiations for a convention on crimes against humanity. In all likelihood, States and human rights organizations that support a “no amnesty” provision would, in the face of proposals that dilute the strength of such a provision, conclude that it is best to exclude such language altogether.139
Indeed, one need not even go back to the widespread support that, at the time, was expressed at the international level with respect to South Africa’s negotiated transition in order to wonder how likely it is that states would a agree on a general prohibition of amnesties. It would suffice to take a closer look at the recent peace agreement reached in Colombia between the government and the FARC.140 While it would appear that this agreement has been widely welcomed by other States, and while this agreement does not provide an amnesty stricto sensu for war crimes and crimes against humanity, it is also true, as Nouwen correctly observes,141 that it is an entirely open question whether the implementation of the alternative-sanctions regime can be considered as constituting a(n albeit attenuated) criminal justice response.142
This could mean that the position taken by the Commission is the best solution for the supporters of the ‘no amnesty’-approach, under the prevailing circumstances. This position may also seem politically attractive for states, as it allows the continuance of a strongly punitive rhetoric, while leaving it to the judiciaries to deal with the hard cases. States took precisely that approach in their negotiation of the ICC Statute — and this is what probably inspired the Commission.
However convenient this solution appears at first sight, Nouwen’s contribution to this special issue places a powerful question mark behind its ultimate wisdom. The fact that the international community is prepared to accept negotiated settlements such as the South African or the Colombian ones suggests that the slogan ‘no peace without justice’ is too simplistic — particularly if that slogan is understood to mean ‘no peace without criminal justice’.143 While
139 Orentlicher, supra note 101, at 222.
140 H. Olasolo and J.M.F. Ramirez Mendoza, ‘The Colombian Integrated System of Truth, Justice, Reparation and Non-Repetition’, 15 JICJ (2017) 1011-1047.
141 For references on the Colombian peace agreement, see Nouwen’s contribution, supra note 134.
142 For the statements made by the ICC Prosecutor on the situation of Colombia including the envisaged transitional justice regime, see https://www.icc-cpi.int/colombia?In=fr (visited on 23 November 2018); for a brief overview of the legal questions arising under the ICC Statute, see conversation with C. Kreß, ‘La CPI querrá ver castigados a todos los máximos responsables’, Semana, 3 September 2016, available online at https://www.semana.com/Imprimir/492401 (visited on 23November 2018).
143 In support of ‘L’aveu du pluriel’ regarding the concept of ‘justice’ particularly in a period of transition, see S.
Garibian, ‘L’aveu du pluriel. Les commissions de vérité et de réconciliation et la recherche de la vérité’,
many states continue to prefer punitive rhetoric in the abstract, their practice in hard cases reveals that they do recognise that a peaceful transition may involve the need to strike a balance between conflicting principles that all have their place within the international legal order. The opinion appended by President Garcia-Sayán to the Inter-American Court of Human Rights’
Judgment in the El Mozote case144 (opinion that appears to have inspired the drafters of the Colombian peace agreement) suggests that this recognition might be gaining ground even within that judicial institution, which has long been the strongest driving force behind the ‘no amnesty’ approach. For the sake of clarity, it would be beneficial for states to avail themselves of the precious opportunity of the proposal of a convention on crimes against humanity and undertake the first genuine attempt to explicitly articulate a policy choice on how best to go about the question of amnesty.
The fact that Nouwen submits a concrete text proposal indicates that it is not beyond reach to come up with a well-balanced solution. A greater degree of specificity than Nouwen suggests is desirable and may also be achievable. Such greater specificity would allow identifying the principles at stake more precisely. It could furthermore highlight that the principle of an equal enforcement of international law weighs most heavily in case of those (allegedly) most responsible for the commission of crimes under international law. Not least, it could be pointed out that any amnesty extending to the latter category of persons should be conditioned to the establishment of a credible alternative mechanism to search for the truth, and by the undertaking of a genuine attempt to provide reparation to victims and assurances of non-repetition. This text is not the place for a full discussion about the best possible way forward.
But it is the place to voice support for Nouwen’s call that states should no longer ignore that there is a genuine dilemma about amnesties, and should assume their responsibility to deal with it.
5. Dispute Settlement
Draft Article 15 provides for the settlement of disputes concerning the interpretation and application of the proposed convention. At the same time, the draft articles leave the question of the establishment of a treaty body to resolve such disputes to a future decision by states.