School of Law

Amnesty laws are political tools used since ancient times by states wishing to quell dissent, introduce reforms, or achieve peaceful relationships with their enemies. In recent years, they have become contentious due to a perception that they violate international law, particularly the rights of victims, and contribute to further violence. This view is disputed by political negotiators who often argue that amnesty is a necessary price to pay in order to achieve a stable, peaceful, and equitable system of government. This book aims to investigate whether an amnesty necessarily entails a violation of a state's international obligations, or whether an amnesty, accompanied by alternative justice mechanisms, can in fact contribute positively to both peace and justice.
This study began by constructing an extensive Amnesty Law Database that contains information on 506 amnesty processes in 130 countries introduced since the Second World War. The database and chapter structure were designed to correspond with the key aspects of an amnesty: why it was introduced, who benefited from its protection, which crimes it covered, and whether it was conditional. In assessing conditional amnesties, related transitional justice processes such as selective prosecutions, truth commissions, community-based justice mechanisms, lustration, and reparations programmes were considered. Subsequently, the jurisprudence relating to amnesty from national courts, international tribunals, and courts in third states was addressed.
The information gathered revealed considerable disparity in state practice relating to amnesties, with some aiming to provide victims with a remedy, and others seeking to create complete impunity for perpetrators. To date, few legal trends relating to amnesty laws are emerging, although it appears that amnesties offering blanket, unconditional immunity for state agents have declined. Overall, amnesties have increased in popularity since the 1990s and consequently, rather than trying to dissuade states from using this tool of transitional justice, this book argues that international actors should instead work to limit the more negative forms of amnesty by encouraging states to make them conditional and to introduce complementary programmes to repair the harm and prevent a repetition of the crimes.

When states are attempting to recover from periods of serious human rights abuse, they often must try to reconcile the competing demands of different stakeholders. These demands may range from claims that complete impunity is a necessary sacrifice to achieve peace, to the belief that without justice no meaningful peace can be reached. This paper will attempt to highlight the ways in which international courts and quasi-judicial bodies address the dilemma of peace versus justice, in relation to amnesty laws. The discussion will consider the main international standards on impunity, the international jurisprudence relating to amnesties and whether international courts should recognize amnesties that are accompanied by alternative forms of justice. This paper will argue that international courts should recognize amnesties that are introduced with democratic approval to promote peace and reconciliation, provided that they are accompanied by mechanisms to fulfil the victims' rights.

Although amnesty laws have ancient origins, today their use as political tools increasingly triggers protest from human rights activists, who argue that amnesties for serious violations of human rights are prohibited under customary international law. These claims will be assessed in this chapter through a systematic cross-country analysis of amnesties since the Second World War. This chapter will use the Amnesty Law Database, which was created by the author, to explore state practice and place considerations of the legal framework against impunity within a factual context. It will highlight patterns in state practice such as the relationship between amnesties and truth commissions, and explore whether states are moving away from granting amnesty for crimes under international law. This chapter will argue that there is a wide disparity in state practice relating to the types of amnesty laws introduced, with some aiming to provide victims with a remedy, whereas others aim to create complete impunity for perpetrators. The chapter will argue that this disparity indicates that amnesties can be tailored to meet specific strategic and legal objectives. It will conclude by assessing the impact of the relationship between the different forms of amnesty and reconciliation.

Although amnesty laws have ancient origins, today their use as political tools increasingly triggers protest from human rights activists, who argue that amnesties for serious violations of human rights are prohibited under customary international law. These claims will be assessed in this chapter through a systematic cross-country analysis of amnesties since the Second World War. This chapter will use the Amnesty Law Database, which was created by the author, to explore state practice and place considerations of the legal framework against impunity within a factual context. It will highlight patterns in state practice such as the relationship between amnesties and truth commissions, and explore whether states are moving away from granting amnesty for crimes under international law. This chapter will argue that there is a wide disparity in state practice relating to the types of amnesty laws introduced, with some aiming to provide victims with a remedy, whereas others aim to create complete impunity for perpetrators. The chapter will argue that this disparity indicates that amnesties can be tailored to meet specific strategic and legal objectives. It will conclude by assessing the impact of the relationship between the different forms of amnesty and reconciliation.

In charting the history of amnesties in Uruguay, this paper will begin in Part 2 by providing a brief overview of the circumstances that gave rise to military rule and the consequences of the dictatorship on society. Then in Part 3 it will explore the moves towards a negotiated transition and the growing civil society demands for amnesty for political prisoners. Part 4 will analyse the terms of the Naval Club Pact and the role that amnesty played in the negotiations. This pact led to democratic elections and the creation of parliamentary investigative commissions which will be discussed in Part 5. Part 6 will subsequently explore the scope and impact of the National Pacification Law, which benefited political prisoners and exiles. The elite driven Naval Club Pact and National Pacification process were followed by 'bottom-up' pressure for truth and justice, which will be considered in Part 7. This pressure contributed to the issue of amnesty for military and police officers resurfacing in 1986 as outlined in Part 8 and the resulting Ley de Caducidad will be explored in Part 9. The referendum challenge of civil society to the amnesty will be discussed in Part 10 and the impact of the referendum and the Ley de Caducidad will analyzed in Part 11. Although the amnesty provided broad impunity for state officials, attempts to provide truth, justice and reparations continued at the international level, as explored in Part 12, and then increasingly at the domestic level from the late 1990s, which will be discussed in Part 13. Part 14 will look at the current efforts to reinterpret the amnesty law and Part 15 will discuss the current campaign to trigger a second referendum to annul the amnesty.

This paper will argue that Uruguay provides an important case study that highlights how civil society can engage with the amnesty issue, and how the wider population respond. Furthermore, the experience of the amnesty laws in Uruguay illustrates how the scope of amnesty laws can change over time through new interpretations in response to changing political contexts and legal developments.

In charting the history of the amnesty and amnesty-like measures in South Africa, this paper will begin in Part 2 by providing a brief overview of the apartheid system and the violations committed by the parties to the conflict that resulted. Then in Part 3 it will explore the triggers that forced the apartheid regime to move towards a negotiated transition. Part 4 will discuss the origins of the amnesty question in the transition through the struggle to define political crimes. Part 5 will consider the evolving positions of the government and the ANC towards amnesty and truth recovery in a context of high levels of violence and greater public knowledge of the crimes committed by both sides. Part 6 will explore the amnesty provisions in the postamble to the Interim Constitution 1993. Part 7 will briefly discuss the implementation of the 1990 and 1992 indemnity laws following the transfer of power. The provisions of the Interim Constitution relating to amnesty were given more detail in the subsequent Promotion of National Unity and Reconciliation Act 1995, which created the Truth and Reconciliation Commission (TRC), with its Amnesty Committee. This work of this commission will be explored in Part 8 and Part 9 will analyse the mandate and operations of the Amnesty Committee. Part 10 will evaluate how far the South African amnesty process achieved the goals outlined in the Promotion of National Unity and Reconciliation Act. Then, Part 11 will explore the relationship between the amnesty and trials, and in particular, it will discuss how the new National Prosecution Policy and the possibility of presidential pardons for political prisoners affect the legacy of the TRC.

This paper will argue that South Africa provides an important case study that highlights that prosecutions and amnesty can co-exist and be complementary. Furthermore, the question of who was eligible for amnesty within South Africa raised interesting questions in relation to whether violent crimes could be defined as political, whether the crimes of the apartheid state should be treated equally to the crimes of its opponents, and the extent to which truth recovery can be incorporated in different models of amnesty, indemnity and prison releases.

This report will provide a global analysis of the reasons why amnesty laws continue to be introduced, the diversity in the scope of these laws and their relationship to other post-conflict justice modalities. In analyzing the trends in amnesty law use, the report will draw from the extensive and up-to-date Amnesty Law Database created by the author to assess patterns across each region of the world. This database contains data on both well-known and neglected amnesty laws in all regions of the world, and at the time of writing had information on 506 amnesties in 130 countries from the end of the Second World War to January 2008.  However, for the case studies discussed below, the focus will be on post-conflict states where the amnesty issue is currently “active,” amnesties that have received little academic scrutiny, and amnesties that either explicitly include or exclude crimes under international law. The analysis of case studies will also include some examples where states have deliberately tried to enact laws that they argue are not amnesties although the effects are similar, such as the Justice and Peace Law 2005 in Colombia.

This report will begin with a general discussion of how the “success” of an amnesty could be evaluated. It will then briefly analyze the position of amnesties under international law, before moving to the comparative study of amnesty laws. In the comparative analysis, it will first present global trends in the introduction of amnesty, followed by an analysis of regional trends. Within the discussion of each region, several case studies will be explored. These studies will expand on trends within that region, but will also illustrate the diversity in the use of amnesty laws and how these laws generally coexist with other post-conflict justice modalities. The report will conclude by highlighting the lessons to be learnt from state practice on the form that such amnesties could take.

In exploring the changing role of amnesty in Uganda, this paper will begin by analysing the background to the conflict in northern Uganda, before exploring in Part 3 the crimes and motivations that have characterised this conflict, including crimes committed by both the LRA and the Ugandan state. Subsequently, in Part 4, the current amnesty arrangements will be analysed, including how the amnesty was enacted, implemented and subsequently amended, and the impact that it has had to date within Uganda. The conflict between the Amnesty Act and the indictments issued by the International Criminal Court will be explored in Part 5. Part 6 will then discuss the peace negotiations at Juba and Part 7 will provide an overview of the various transitional justice approaches that were negotiated in the Agreement and Annexure on Accountability and Reconciliation. Finally, some suggestions will be made on the role that amnesty can play during the political transition, if the peace agreement is signed by Joseph Kony and President Museveni.

This paper will chart the history of amnesty in Argentina through the prism of the changing political context. It will begin in Part 2 by describing the human rights violations under President Isabel Perón and the 1976-83 military dictatorship. It will then in Part 3 explore the military’s attempts to shield itself from prosecution before the handover of power, including its short-lived, self-amnesty. In Part 4, this paper will explore the question of impunity in the 1983 elections and Part 5 will analyse what later became known as the ‘Theory of the Two Demons’ which underpinned the human rights policies of the Alfonsín administration. Part 6 will investigate the human rights policies of the first transitional government including repealing the 1983 amnesty, creating a truth commission, instigating trials of military and guerrilla leaders, releasing political prisoners, and reforming the military. This period represents a time when the transitional government had the ability to act in the face of a weak military. This period was brief, however, and as will be explored in Parts 7-11, the civilian politicians gradually moved to limit the legal liability of those accused of human rights violations, in a context of military uprisings and a deep economic crisis. Subsequently, in Part 12, this paper will discuss the human rights campaigns of the early 1990s, and Part 13 will explore the impact of the confession of former naval officer Adolfo Scilingo. In Part 14, the efforts of human rights organisations to erode the amnesty laws through ‘truth trials’, prosecutions for the kidnapping and concealment of the children of the ‘disappeared’ and the growth of escrache demonstrations. The processes contributed to the 1998 derogation of the amnesty laws which will be explored in Part 15 and the 2001 decision in the Julio Simón case that they were unconstitutional will be discussed in Part 16. Part 17 will analyse the changes in the government’s human rights policies following the election of President Néstor Kircher in 2003, including the annulment of the amnesty laws, which as discussed in Part 18 was found constitutional by the Supreme Court in 2005. As discussed in Part 19, the Supreme Court found Menem’s pardons unconstitutional in 2007. Finally, Part 20 will discuss the delays and difficulties being experienced in the current efforts to prosecute human rights violators.
This paper will argue that Argentina provides an interesting case study for the analysis of amnesty laws as it demonstrates how such laws and other transitional justice mechanisms are often designed to reinforce political narratives of the violence. Furthermore, Argentina’s experiences, unlike the other states in the Americas and elsewhere, of annuling its amnesty laws and re-startings prosecutions for human rights violations after almost two decades of impunity, potentially provides an interesting model for other states grappling with impunity.

This paper will explore two interwoven themes. Firstly, it will consider the political context that gave rise to the amnesties. In doing this, it will seek initially to evaluate the depth of the international community’s commitment to justice during the conflict by assessing the measures taken by international actors in the response to the violations and the importance given to justice in the various peace initiatives. It will argue that whilst the violence was ongoing, and contrary to the actual crimes being committed within Bosnia-Herzegovina, efforts were made by some international actors and local propagandists to construct a narrative of the violations in which the actions of all sides were described as morally equivalent. The objective of this narrative construction was to lessen demands for justice as it was felt that if the violence was acknowledged as genocide or at least it was widely recognised that Bosnian Serb forces were disproportionately responsible for the commission of war crimes, and the Bosniak civilians suffered disproportionately during the conflict, it would have been more difficult for international mediators to seek to broker a settlement that recognised the ‘facts on the ground’ that had been created by ethnic cleansing. As a result, the international mediators, eager to reach a negotiated settlement, repeatedly prioritised reaching a peace agreement over the pursuit of justice, and even after the ICTY was established, its work was hampered by a lack of funding and cooperation until 1997. The report will also argue that contrary to the behaviour of international actors in other contemporary conflicts, there was, however, a reluctance to agree to an amnesty for war crimes, due to the intense media coverage of the Balkans conflicts and the resultant public outrage. The resultant global awareness and debates on the mass atrocities perpetrated in Bosnia-Herzegovina provided the impetus for the creation by the United Nations of the Commission of Experts and the ICTY. Although the support of international actors for these mechanisms was initially reluctant, the institutions nonetheless gradually gained momentum and the ICTY grew into an effective body commanding significant resources and personnel, and its existence helped to shape the limits of Bosnia’s amnesties.
Secondly, this paper will explore the scope and impact of the amnesty laws that were eventually adopted. The report will investigate the objectives of these laws and the extent to which these objectives were realised. In particular, as the exclusion of the most serious crimes from the amnesties was deliberately intended to facilitate prosecutions of these crimes, and provides an example of how amnesties that adhere to the evolving anti-impunity norm articulated in recent years by international human rights activists operate, the report will explore the extent to which excluding these crimes has contributed to truth and justice with Bosnia. Clearly, without the exclusion of the most serious crimes, few trials would have been possible. However, this paper will argue that in the 14 years since the Dayton peace accords, only a small fraction of the total number of offenders have been tried and progress towards improved interethnic relations and stable government within Bosnia-Herzegovina has been minimal. In addition, the report will explore the introduction of plea agreements at the ICTY and in the national legal system in order to consider the extent to which some forms of leniency following conflict and mass atrocity represent an efficient means to prioritise limited prosecutorial resources and incentivise perpetrator testimony. Furthermore, the report will consider whether the pursuit of more holistic forms of transitional justice encompassing both trials and more restorative strategies could help Bosnian society to achieve to peaceful coexistence under domestic democratic government, a status which, as will be explored in the following section, has not featured in Bosnia’s past.

The end of the Cold War marked the start of a new era in global politics in which legalism and the rule of law became increasingly important in international relations and the number of international legal institutions grew. In particular, international criminal law, which had largely been moribund during the previous decades, was revived with the creation of the ad hoc tribunals, the hybrid courts and the International Criminal Court (ICC). These developments were hailed by human rights activists and the international legal community as important steps towards ending the cultures of impunity that so often prevail in the aftermath of mass violence. However, despite these developments, amnesty laws continue to be introduced in many countries to shield individuals or groups from legal sanctions, even for the most serious crimes. As a result, amnesties remain a contentious, yet vibrant issue within international criminal law. This chapter will investigate their controversial status by analysing relevant treaty provisions, customary international law and the statutes and jurisprudence of international criminal courts.

Investigating, collating, corroborating, and publicizing information on human rights violations is central to the work of many national and international human rights organisations. Drawing on three reports published by Human Rights Watch focusing on Afghanistan, Nepal and Peru, this essay will consider the goals and strategies employed by HROs, before assessing the context, content, and objectives that inspired the publication of each report. The essay will then conclude by outlining the contrasting impact of the reports in Afghanistan and Peru to evaluate how far they contributed to HRW's objectives.

Since its inception, the central dilemmas of transitional justice have often been framed in stark dichotomies, encapsulated most notably in the phrase: ‘peace versus justice’. This phrase has been widely used to describe the extent to which elites in states undergoing transitions from mass violence may face political, military, and economic pressures to compromise justice in order to obtain peace. Where amnesty laws have been enacted as part of negotiated peace deals they are often perceived as embodying such compromises as they can serve to shield the signatories of peace agreements and their supporters from criminal prosecutions. Although in a small number of cases, such amnesty or immunity agreements may be granted provisionally, more commonly, they are intended to create a permanent barrier to the pursuit of trials for past crimes, where such trials would arguably risk destabilising the fragile political transition. As a result, amnesty laws to shield offenders from criminal sanctions are commonly viewed as the antithesis of trials. At first blush, this perception of amnesty laws as a once-only political pact to close the door on the past is understandable. However, as this paper will argue, closer inspection reveals that transitional states rarely face a binary choice between amnesty and justice, but rather may undergo a continual process of re-negotiation of the balance between impunity and accountability as the transition evolves. Indeed, during political transitions countries rarely follow a linear path towards justice. Instead, the salience of calls for amnesty or trials often wax and wane depending on the changing political circumstances and the relevance of practical concerns such as the passage of time, the degradation of evidence and the mortality of victims, witnesses and perpetrators.

This paper will explore some of these relationships by focusing on how trials and amnesties have been sequenced within transitional states. Drawing upon fieldwork conducted by the author in Argentina, Bosnia-Herzegovina, Uganda, South Africa and Uruguay, together with the experiences of amnesties in Cambodia, Sierra Leone and Timor-Leste, the paper will detail how trials have been launched in the shadow of pre-existing amnesties, and conversely, how demands for amnesty may continue or reignite following prosecutions by national or international courts. In this way, the paper seeks to highlight that neither trials nor amnesty laws definitively close the door on the past and instead many societies continue to revisit and adapt their processes in response to changing political contexts. In some contexts, this may result in highly complex sequencing arrangements.

By exploring these complexities, this paper will highlight two key findings: firstly, that even where trials are pursued, demands for amnesty or immunity may continue to be made. Although in some cases, these demands may seek to undermine transitional justice agendas, in other instances, they could seek to respond to the problems faced by over-burdened criminal justice institutions by incentivising offender testimony or encouraging offender participation in alternative accountability mechanisms. The second finding is that the more egregious forms of amnesty that offer unconditional impunity for serious human rights violations may not be fully sustainable in the longer-term, and may instead face judicial challenges to narrow their scope or invalidate them entirely. The implications of these two findings point towards the development of more nuanced approaches to amnesty laws that incorporate elements of accountability and may even coexist with some form of criminal prosecutions. The final section of this paper will explore how such coexistence can be written into the text of the amnesty laws.

For centuries, amnesty laws were a habitual element of peacebuilding and reconciliation around the world.  Amnesties were used to calm insurrections or to mark the end of wars between states. Ruling elites often portrayed the introduction of these laws as gestures of mercy and benefaction designed to restore relations between the state and the citizenry or between the peoples of belligerent countries.  During the past thirty years, amnesty laws have remained a key component of peace negotiations around the world. For example, a 2007 survey of peace agreements made between 1980 and 2006 found that whilst “provisions for prosecutions and truth commissions are rare in peace agreements … the use of amnesty is comparatively common”.  However, from the late 1990s, reliance on national amnesty laws to promote peacebuilding and reconciliation has provoked increasing international controversy.

This paper will begin by exploring how the concepts of peacebuilding, reconciliation and transitional justice have evolved since the 1990s. This analysis will focus in particular on how perceptions of amnesty laws as promoting (or inhibiting) the goals espoused by these concepts have shifted over the past two decades, and conversely how amnesties themselves have adapted to take these goals into account. This paper will then analyze interpretations of restorative justice within the transitional justice literature. Drawing on restorative justice theory and the experiences of amnesty processes in Timor-Leste, South Africa and Uganda this paper will tentatively propose elements that should be considered when designing a “restorative amnesty”. This analysis will include addressing how amnesty laws can facilitate inclusive restorative processes, promote truth recovery, enforce restorative outcomes, and provide reparations. However, due to the context-dependent nature of restorative justice, these proposals should not be viewed as a template to which all amnesties should conform, but rather as themes to be considered when tailoring bespoke amnesty laws for local contexts.

Although the concepts of peacebuilding, transitional justice and reconciliation each share the common goal of seeking to identify how war-torn societies can transition towards lasting peace, they have distinct origins, mechanisms and rationales. As a result, from the 1990s, amnesty laws to shield offenders from legal sanctions have been at the epicentre of clashes between these different approaches. For example, the growth of transitional justice was strongly influenced by international human rights law and international legal scholars and jurists.  This meant that transitional justice programmes were often highly legalistic and aimed as far as possible to deliver prosecutions for serious violations of international human rights and humanitarian law. This contrasted with peacebuilding or conflict resolution strategies that sought to develop bespoke, more political solutions to tackle the problems faced by war-torn states, or with reconciliation programmes that for well-intentioned or nefarious reasons often emphasised the importance of forgiving and forgetting in rebuilding post-conflict states through the use of amnesty laws or other leniency measures. However, in recent years, the development of an international consensus on the importance of (re-)establishing the rule of law in post-conflict states has contributed to a growing convergence between the concepts of peacebuilding, transitional justice and reconciliation on the permissibility of amnesty laws. As a result, contemporary amnesty laws are often the most contentious aspect of peacebuilding and reconciliation programmes. This controversy has been recognised in the EU-sponsored project on Armed Conflicts, Peacekeeping, Transitional Justice: Law as Solution (ATLAS), which has produced this edited collection. In its aims and goals, this project is required inter alia to ‘[d]etermine how amnesties, impunities and criminal justice contribute to post-conflict national reconciliation’ and to ‘[a]nalyse if they are antagonistic or if they can be reconciled in a manner that satisfies the requirements of international human rights law and the rule of law’.  This paper will focus on the latter of these questions.
This analysis will begin by exploring the scope and effects of amnesty laws in order to highlight the considerable diversity among contemporary amnesties. This discussion will provide the basis for the arguments in this paper that limited, individualised and conditional forms of amnesty do not automatically result in impunity, but instead can potentially impact positively upon national reconciliation and the rule of law in post-conflict states. The following section will then focus on the ambiguous concept of the rule of law by highlighting its core elements and exploring why it has such appeal for post-conflict states and international actors. The chapter will then address the relationship between amnesty programmes and the elements of the rule of law with which they most frequently conflict, namely adhering to domestic legal rules on the use of amnesty including the principles of legality and equality, enforcing international legal obligations, and ending impunity. In keeping with the ATLAS project objectives, the paper will conclude by offering some recommendations for the European Union (EU) in approaching human rights and international humanitarian law in post-conflict states.