By Prof. Epiphany Azinge, SAN

The Principles of conventional international law and treatise  impose significant obligations on States to requiring the prosecution of atrocious crimes. This is because violations against humanity endanger the value of the global community.

The offer of amnesty for some of the most heinous of crimes thus undeniably appears contradictory on the very face of it, to these principles of international law. On the other hand, International law does not expressly exclude amnesties. This raises the question of the legality of granting amnesties under international law and whether amnesties can be given de facto or de jure recognition internationally; a question we shall come back to.

Over the past few decades, there appears to be the development of a general presumption of the illegality of amnesties and the opinion that States have no option but to prosecute rather than offer immunity from prosecution for serious crimes has gained acceptance in most quarters. The support for this opinion of the illegality of amnesties are legion.

Article 4 of Convention on the Prevention and Punishment for the crime of Genocide  provides that perpetrators of the offence of genocide must be punished by state parties. The State parties are obligated to put in place necessary legislation to give effect to the provisions of the Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in the Convention.

Based on the mandatory system of universal jurisdiction over grave breaches  of the Geneva Conventions, there remains an obligation to extradite and prosecute in situations where there have been grave breaches of human rights violations and State Parties are unable to absolve themselves or any other state from liability that is incurred in this respect. This prima facie means that State parties cannot through their own national legislations or actions, condone grant amnesties for offences that fall within the definition of  grave breaches as provided under the Geneva Conventions and there is a positive obligation on other parties not to recognise such amnesties granted.

A similar obligation to prosecute persons who have violated the rights of others, especially through torture and other forms of cruel treatment is contained in the Final Declaration and Programme of Action of the 1993 World Conference on Human Rights( Vienna Declaration)  where it states that

“States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law”

The Convention on Non-Applicability of Statutory Limitation on War Crimes and Crimes Against Humanity  based on the conviction that the effective punishment of international crimes is an important element in the prevention of such heinous crimes and the furtherance of protection of rights and fundamental freedom, provides in  Article 3 and 4 an obligation on state parties to adopt all necessary domestic measures, be they legislative or otherwise to ensure that no form of statutory limitation applies to the prosecution and punishment of these crimes. The granting of amnesties amounts to a bar to prosecution and punishment of heinous crimes and thus is not in conformity with the provisions of this particular Convention.

The emergence of an International prosecution system consisting of the International Criminal Court as well as various international tribunals  has also been a strong point in support of the argument that immunities from prosecution for international crimes are not recognised. The non-recognition of amnesties in relation to international crimes has been explicitly stated in various decisions of International tribunals, helping to consolidate a network of case law that can be said to aid the development of international customary law jurisprudence on the concept of amnesty.

In the case of Gomes Lund v. Brazil, the Inter-American Court of Human Rights (IACHR) considered the case of a small group of students and workers whom were “disappeared” by elements of the Brazilian army and state police in the mid 70’s.The Brazilian 1979 Amnesty law prevented both the release and information on the fate of the victims and the investigation and prosecution of those responsible for their disappearance. The Court held that the investigation and punishment of those responsible for the perpetuation of the gross human rights violations was imperative for justice for the victims and that the amnesty law was contrary to the provisions of international conventions to which Brazil was a party.

In 2009, the Appeals Chambers of the Special Court for Sierra Leone in the appeal case of The Prosecutor v. Issa Hassan Sesay, Morris Kallon, and Augustine Gbao  ruled that amnesties granted to persons of the warring factions in the Sierra Leone in spite of the 1999 Lome Peace Accord brokered between the Sierra Leone government and the Revolutionary United Front which contained an amnesty provision pardoning all rebel forces and their collaborators for acts committed during the war was not a bar to prosecutions as amnesty did not apply to war crimes, crimes against humanity and other serious violations of international humanitarian law.

It was argued  that the prosecution of certain international crimes are recognised as jus cogens; meaning that due to the importance of the value it protects, the principle of punishment for heinous crimes, enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules. The implication of this is that the principle cannot be derogated from by states through international treaties or local or special custom, not endowed with the same normative force.  The decision of the Special Court of Sierra Leone is regarded as a very important decision in relation to the position of amnesty in International law because, it appears to be the first decision in which it was categorically stated that amnesty was not a bar to all international crimes before international tribunals or foreign courts.

The International Criminal Tribunal for Yuogoslavia took a similar approach in Prosecutor v. Anto Furundzija  in relation to the crime of torture. The Court concluded that any national measure to undermine the principle of jus cogens in international law such as amnesty would not be accorded international legal recognition.

The provisions of Article 6(5) of the Additional Protocol   has been cited severally especially by national courts  as a justification for the recognition of amnesty for crimes against humanity in international law. In the Salvadoran case of Guevara Portillo for example, which involved the deaths of American soldiers travelling in a helicopter which was shot down by the Salvadoran guerrilla forces, the Frente Farabundo marti para la Liberaction Nacional (FMLN), the Criminal Chamber of the Supreme Court justified its ruling that the Salvadoran amnesty granted to the FMLN was valid under international law on its interpretation of the aforementioned Article, emphasizing that amnesty was necessary for reconstruction as it was part of the negotiated peace accords armed conflict.”