Amnesties for Atrocities: Impunity or Accountability?

Alana Tiemessen*

Le résumé français ci-dessous

What do we do with those who commit genocide, crimes against humanity, and war crimes? If Winston Churchill had his way at the end of World War Two, the victorious powers would have foregone the Nuremberg Tribunal in favour of a summary execution of Nazis.[i] While contemporary transitional justice[ii] practices owe a great deal to the legacy of Nuremberg as a classic model of trial and punishment, the international community has since experimented with many different mechanisms of accountability. Amnesties have gained currency as a legitimate and effective form of accountability for atrocities and are often embedded into the standard transitional justice options of tribunals and truth commissions. This article presents a brief typology of contemporary amnesty practices and an overview of the arguments for and against the use of amnesties as a means of transitional justice.

A Typology of Amnesties

Put simply, an amnesty is a pardon granted by a governing authority for a legal offense. As the debates surrounding their legality, legitimacy, and effectiveness suffer from grand generalizations about how they are used and to whom they apply, a brief typology of the many different amnesty practices is necessary.

a) Self-accorded amnesties are those granted by political leaders who pardon their own crimes. The most prominent example of a self-accorded amnesty is that granted by Chilean dictator, General Augusto Pinochet, to himself and his accomplices in 1978. Self-accorded amnesties are generally regarded as impunity of the worst kind.

b) De facto amnesties are undeclared and apply to perpetrators that have committed crimes but have not been held accountable by any means of transitional justice, i.e. an unofficial policy of doing nothing. These undeclared amnesties are exemplified by the cases of the Taliban in Afghanistan, paramilitaries in Colombia, and the RPF in Rwanda.[iii] De facto amnesties are also generally regarded as blatant impunity.

c) Blanket amnesties are granted by a governing authority to a large group of individuals who have committed similar crimes (usually presented in the form of a general “amnesty law”). The 1992 peace accord in Mozambique contained blanket amnesties for both sides of the civil war. The Ugandan government also created an Amnesty Act in 2000, which offers a blanket amnesty to all those who have committed offenses in an insurgency against the government.[iv]

d) Limited amnesties are those granted by a governing authority to specific groups or individuals for a specific set of crimes committed. In this circumstance individuals are usually required to go through an amnesty application and process to prove their eligibility, as was the case in South Africa where the Amnesty Committee of the Truth and Reconciliation Commission (TRC) received over 7,000 applications. The TRC limited amnesty to politically motivated crimes, and excluded crimes committed out of racism and/or malice. Likewise, the Commission for Reception, Truth, and Reconciliation (CAVR) in East Timor and the Gacaca courts in Rwanda offer limited amnesties to low-ranking perpetrators for less serious crimes committed in the midst of mass atrocities.[v]

e) Conditional amnesties are granted by a governing authority in exchange for the perpetrator performing one or more of the following acts (usually in a public forum): acknowledgement, truth, apology, and compensation/restitution. It is important to note that blanket amnesties are sometimes conditional, whereas limited amnesties are almost always conditional. Generally speaking, the more limited and conditional the amnesty the more politically and legally palatable it is to the international community. In the aforementioned blanket and limited amnesties in South Africa, Uganda, East Timor, and Rwanda the conditions of acknowledgement, truth-telling, apologies, and compensation were a significant part of the process.

Amnesty as Impunity

Human rights activists, international lawyers, academics, and the United Nations have challenged the legality, legitimacy, and effectiveness of amnesties. Legally, amnesties for atrocities are not permissible under international criminal and human rights law because they violate victims’ right to justice and the state’s duty to investigate and prosecute these crimes. Since the early 1990s, the UN has been the biggest diffuser of international criminal and human rights law through transitional justice institutions; the UN gave mandates to tribunals for the former Yugoslavia, Rwanda, East Timor, Sierra Leone and Cambodia. Given the UN’s prominent role in post-conflict societies, it is instructive to note that it does not proclaim to use amnesties as standard practice: “United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights, where we are mandated to undertake executive or judicial functions.” [vi]

Amnesties also face accusations of illegitimacy from the international human rights community. Self-accorded amnesties and blanket amnesties offered to negotiate an end to violence are often justified as a necessary tradeoff of justice for peace. This is seen as illegitimate by those who argue that justice should be free of politicization and not subject to use as a bargaining tool. Amnesties also pose a moral affront to the “trial and punishment” mantra of retributive justice because they “selectivize punishment of extraordinary international criminals”[vii] and are wildly inappropriate given the gravity the crimes committed.

The effectiveness of using amnesties to bring about peace and reconciliation has also been seriously questioned. While the provision of amnesties may bring about a temporary peace among political elites, reintegrating perpetrators back into the communities where their living victims remain can often incite revenge violence and population displacement. Victims who are forced to accept perpetrators as legitimate citizens and political actors in their communities oppose amnesties without limits or conditions. Furthermore, it has been argued that amnesties embolden future perpetrators by institutionalizing impunity and guaranteeing that they will be able to negotiate their way out of justice.

Amnesty as Accountability

The Amnesty Law Database shows an upward trend in the use of amnesties worldwide since the end of World War Two: over 430 amnesties have been meted in out in this time and many of these occurred since the advent of the ad hoc tribunals.[viii] Despite strong moral arguments against them and legal and human rights efforts to prevent them, the use of amnesties is increasing and both international and local architects of transitional justice have found pragmatic and idealistic justifications for it.

The primary pragmatic justification for amnesties is the aforementioned tradeoff of justice for peace. This is particularly true in contexts where accountability is part of the negotiation to end an ongoing conflict, or if the peace that has just been brokered is threatened by spoilers and weak institutions. [ix] As discussed by other contributors to this Bulletin edition, this concern was at the forefront of justifications for the widespread use of amnesties in Latin America and in the contemporary case of Northern Uganda. In these types of political and security contexts, “the fear of retribution by those perpetrators may convince even the staunchest human rights advocate that amnesties are preferable to coups.” [x]

Another pragmatic justification for the use of amnesties is that post-atrocity societies commonly lack the capacity to prosecute and punish tens of thousands of perpetrators. For example, post-genocide Rwanda has approximately 700,000 to 1 million suspected perpetrators of genocide and was left with a fledgling judicial structure. This is when distinctions between the degree of perpetration and the gravity of the crime committed come into play. Low-ranking perpetrators of lesser crimes are offered amnesties to unclog the judicial and penal systems. This distinction between high and low-ranking perpetrators is useful in that it delineates the different circumstances in which individuals commit violence. Amnesties are often used for perpetrators who have committed crimes under a “kill or be killed” scenario. This is particularly relevant to the circumstances of child soldiers, many of whom are abducted and forced into committing violent crimes. These types of perpetrators are in stark contrast to the likes of Charles Taylor, Théoneste Bagosora, and Slobodan Milosevic – the planners and instigators of mass violence - for whom amnesties would be neither pragmatic nor legitimate.

An idealistic justification for amnesties is that they can foster reconciliation. This ideal is central to the practice of restorative justice strategies, i.e. those that focus on the truth, healing, reintegration and reconciliation through community dispute resolution mechanisms. The offer of amnesties can make these restorative justice goals realizable. Limited and conditional amnesties as a means of accountability are appropriate to the lived realities of victim-perpetrator relationships. [xi] Furthermore, removing the threat of prosecution encourages displaced populations to return and reintegrate into their communities. The legitimacy of using amnesties often stems from the use of restorative justice practices in traditional dispute resolution mechanisms.

The empirical record shows that the practice of amnesties for atrocities is a widespread and increasingly used element of transitional justice. The criticisms of amnesties are sound but they do not apply equally to all types of amnesties. Self-accorded and blanket amnesties certainly violate standards of international criminal and human rights law. Such amnesties run the risk of creating further instability in the short term, and entrenching impunity in the long term. However, the use of limited and conditional amnesties for low-ranking perpetrators through restorative justice practices has been met with less resistance from the international community and been perceived as an appropriate measure of accountability by those affected by violence.