The Nature, Status and Future of Amnesties under International Criminal Law
Perry, Robin, Australian International Law Journal
The ultimate sovereign prerogative of States to begin and end wars and, in particular, to grant amnesties for crimes committed during those wars, has been significantly eroded by the expanding legal imperative to address crimes whose gravity compels prosecution. As this legal obligation continues to expand, the space for a non-legal accommodation of localised sociopolitical nuances of any given conflict is correspondingly diminished. Nevertheless, a cursory overview of legal and political philosophy challenges the assertion that prosecutions of international crimes are or ever can be exercises of pure, unadulterated legalism, uncontaminated by political influence. We should, on that basis, be willing to accept that there may, in some situations, be legitimate scope for utilising politics to address the perpetration of crimes during conflict beyond the courtroom. Ultimately, then, this article will seek to draw on contemporary legal and philosophical debate to map out the evolving position of international law with respect to amnesties and, on that basis, to identify international criminal law as a form of juridified international politics. This will provide a foundation for justifying recourse to amnesties, albeit in very limited circumstances, and to tentatively outline some practical guidelines for identifying those circumstances.
From such crooked lumber as humanity is made of, no straight thing was ever constructed. (1)
It is a very tough call whether to point the finger or try to negotiate with people. As a lawyer, of course, I would like to prosecute everybody who is guilty of these heinous things. As a diplomat or as a politician or as a statesman, I would also like to stop the slaughter, bring it to a halt. You have two things that are in real conflict here ... I don't know the proper mix. (2)
If we accept We proposition that, at least at its margins, international criminal law (ICL) could be viewed as an attempt to juridify politics, then the next question we must ask ourselves is: where do we draw the boundaries of the ICI, project? In other words, it is a fundamental question of identifying the point up to which we impose criminal penalties for abhorrent State behaviour and the point beyond which we allow international politics to operate unfettered by the law. The concept of amnesty for crimes committed by warring parties appears to be located on these boundary lines and so it is an issue to which ICI, has not yet given a definitive (or 'juridified') response. In short, this article is an attempt to go beyond the lofty rhetoric that pervades discussion of ICL in order to clarify the nature of amnesties and their status under international law, and to then make some suggestions as to the extent to which ICL should permit their operation as it continues to evolve as a system for addressing conflict-related atrocities.
The ultimate sovereign prerogative of Stares to begin and end wars (and to utilise long-established protocols of international diplomacy to do so) and, in particular, to grant amnesties For crimes committed during those wars, has been significantly eroded by the expanding legal imperative to address crimes whose gravity compels prosecution. As this legal obligation continues to expand the space for a non-legal accommodation or localised sociopolitical nuances of any given conflict is correspondingly diminished. The notion of justice is inherently constituted not only by legal considerations, but also by moral, social and political imperatives. Consequently, the search for a unifying blueprint for post-conflict justice is unending and futile. The bottom line is that justice is dependent on accountability, die mode of which will, in turn, be determined by the needs and exigencies of each post-conflict situation.
Nevertheless, only rarely, it ever will justice and the accountability on which it is founded be served by criminal trials alone. …