Amnesty over Crimes against Humanity under Customary International Law

                         Roza Memari, PhD Student, Panjab University, Faculty of Law, 

                                                      rosamemri@yahoo.com

Abstract

       This paper aims to present an analysis of the relation between customary international law and amnesty proceeding with legality or illegality of amnesty over crimes against humanity under customary international law. It is a problematic issue here to assert that there is a general practice for states to investigate and prosecute international crimes. Accordingly, it might be a general customary rule as a duty for states to prosecute international crimes like mentioned offence; Nevertheless states practice is inconsistent. In spite of this practice implemented by some states, we also note at opinio juris as another element of customary international law focusing on opinion of states on amnesty over criminals against humanity.

Introduction

       The term crimes against humanity originated in 1907 Haugo Convention Preamble which was codified based on state practice. It was derived from values and principles which form laws of humanity. These are offences under customary international law as a main source of international law accepted by the most governments.[1]

       Crimes against humanity are serious threats which abet moral duty of states to prosecute criminals against humanity. “Consequently, any state, including their own, could set up national courts to prosecute them. This principle of universal jurisdiction is thought to be permissive under international law in respect of the crimes that exist by virtue of international custom (including slavery, torture, piracy, war crimes and crime against humanity) and to require prosecution, but not amnesty for such crimes.”[2] This obligation to prosecution over crimes against humanity is limited to the treaty of state parties unless this duty might result from customary international law.[3]

         Customn has two essential elements, namely uniform state practice (evidence of a general practice) and opinio juris (practice generally accepted as law). “State practice refers to a general and consistent practice, while opinio juris means that a practice is adhered to by states out of a sense of legal obligation to follow that practice.”[4]However both sources of custom do not have the same procedure in prosecution or amnesty of criminals against humanity. “Whereas the element of opinio juris appears to reject amnesty and to promote prosecution for acts of crime against humanity, state practice, on the contrary, tends to privilege de facto impunity or the granting of amnesty to the perpetrators thereof.”[5] This has been a controversial issue regarding to the relationship between amnesty and crime against humanity. Here it is appropriate to pose opinio juris expressed by the states accepted as law and state practice in respect to amnesty or obligation to prosecution over crimes against humanity under customary international law.

State Practice under Customary International Law

    With the study of many states it is asserted that, as a matter of fact, there is no consistent practice and general customary rule for an obligation to prosecute criminals against humanity[6]; accordingly, it might be a general customary rule as a duty for states to prosecute international crimes. This idea is developing in states practice as Louise Mallinder notes in the most comprehensive study to date of state practice on amnesties: “Perhaps the most significant period in the relationship between international crimes and amnesties is after the UN changed its approach to amnesty laws with the signing of the Lome Accord on 7 July 1999. Between this date and December 2007, 34 amnesty laws have excluded some form of international crimes, which has inspired human rights activities to point to a growing trend to prohibit impunity for these crimes. This research has found, however, that during the same period, 28 amnesty laws have granted immunity to perpetrators of international crimes, and that consequently, it is too early to suggest that an international custom is developing.”[7] Nevertheless states practice is inconsistent. Many states, now, grant amnesties in serious crimes like crimes against humanity. The number of states which employ amnesty and pardon as a tool for peace and reconciliation is gradually being evolved. The problem is that states mostly do not enforce the duty to prosecute as a result of diplomatic reasons as William J notes: “Unfortunately, states have been reluctant to prosecute individuals who have committed these atrocities. In some cases, amnesty is granted by government officials to shield themselves and their subordinates from prosecution. In other cases, amnesty is established to promote social healing and reconciliation.”[8]

       Having looked at a number of historical scopes of amnesties granted by the states, the tendency of governments to employment of amnesty as a tool for peace and reconciliation is promoted.

       In 1973, the previous president of Chile was overthrown by a military junta led by Pinochet. The new government declared a state of siege and “time of war,” abolished Congress by decree, banned labor and leftist parties, and issued decree amending the Constitution to allow the security forces to detain citizens incommunicado. A lot of people were killed as a result of his atrocities. In 1978, he issued a blanket amnesty decree to all persons who had committed most of international crimes during the period of 11 September 1973 and 10 March 1978.[9]

       In 1932, the overthrow of elected president triggered an insurrection in El Salvador; consequently, the new military government massacred about 10,000 and 30,000 peasants.  The Violence by the government’s military grew. Due to violence, repression, and the United States financial support of armed forces, the country declined into civil war. By 1991, death squad killings, torture, disappearances, and bombing, in addition to targeted by the FMLN (Farabundo Martf National liberation Front), resulted in approximately 70,000 deaths. A lengthy negotiation of peace was formed between the FMLN and Salvadoran government, accordingly; the president of El Salvador introduced a bill to parliament to award a broad amnesty to over 40 high-level officials of El Salvador responsible for serious abuses. Eventually all the criminals were amnestied absolutely and unconditionally.[10]

       In 1954, Guatemala returned to dictatorship. In the next four decades, it continued its brutal civil war. In the mid- 1970s, the Guatemalan government responded to a resurgence of grassroots organizations and political mobilization with the extreme repression. Violence peaked at its highest degree in 1980. A lot of villages were destroyed, burned, and plundered. By 1984, mass killings were extended and around 140,000 and 200,000 Guatemalans were disappeared or murdered. In December1996, a peace agreement was signed to end civil war designed to prevent the prosecution of persons who were responsible for violations against human rights.[11]

       Mentioned cases are not the only examples of amnesty. Argentina, Honduras, Uruguay, Haiti, South Africa, Sierra Leon, Liberia and so on also have undergone a process of political changes after transition from authoritarian regime.[12] The government of each country ignored past atrocities and gross human right violations. Despite the tendency of many governments to amnesty, others insist on justice by punishing criminals against humanity. This dichotomy has made the governments employ inconsistent practices.

Opinio Juris under customary International Law

       The second element of customary international law is Opinio Juris.[13] Opinio Juris denotes a subjective obligation which is bound to the law. It, as a matter of fact, derives from believes of states not their real action; accordingly, treaties and declaration are a statement of what states believe apart from what they do. [14]An Opinio Juris might be understood in certain circumstances from state practice but it is complicated to ascertain what the states believe and what they say. Some jurists argue that reliance to custom is not acceptable because some states rely on their custom when it is not in contrast to their interests as Reisman has questioned reliance on custom as “great leap backward” to serve powerful states; accordingly, these states rely on custom only if it proceed their national interest.[15] “Given this difficulty, a number of writers have suggested that instead of focusing on a consistent pattern of state practice, supported by evidence that states regard such a practice as a legal requirement, it is better to focus on statement of governments, resolutions of international organizations, pattern of ratification of international treaties and commentaries including travaux preparatoires”[16]as the International Court of justice in the Nicaragua Case declared that:

       Opinio juris may though in all due caution, be deduced from, inter alia, the attitude of the parties and the attitude of the states toward certain General assembly Resolutions, and particularly resolution 2526 (XXV) entitled “ Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations”. The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.[17]

       It might be argued that based on ICJ’s opinion, General Assembly resolutions are believed in acceptance of an Opinio Juris in the obligation to prosecute and punish gravest crimes but the problem is that there is no strong explicit words in resolutions to interpret prosecution and punishment as a mandatory duty therefore this obligation is not supported enough by resolutions. For example, a legal obligation to prosecute perpetrators of crimes against humanity has been recognized in the United Nations Declaration on Territorial Asylum. This declaration prevents states from granting asylum to any person in respect to whom there are serious reasons for considering that he has committed a war crime, a crime against peace and a crime against humanity.[18] Furthermore, general Assembly Resolution 2840 (XXVI) of 18 December, 1971 on the Question of the Punishment of War Criminals and of Persons who have Committed Crimes against Humanity[19] requires that refusal by states to cooperate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of United Nations and to generally recognized norms of international law. Moreover, the Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity and also the 1968 Convention on the Non- Applicability of Statutory Limitations to War Crimes are other examples which, as outlined before, do not explicitly express the duty to prosecution and punishment of alleged offenders.

Conclusion

       The conclusion to be drowned here is that, there is no uniform practice in the behavior of states in respect to humanitarian crimes. This growing belief of states practice is being reflecting in opinion juris as an element of customary international law. Although an endorsement of amnesties rejection in respect to international crimes is being formed and majority of states have claimed their unwillingness to grant amnesty to serious violations of human rights, this is not as a whole supported in state practice and opinio juris virtually.

References

1-       Antonio Cassese, International Criminal Law, Oxford University Press, 2003.

2-       Amnesties in International law and Practic, CTJ Short Paper on Amnesties, 9 Oct, 2008.

3-       Diano orentlicher,,Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, Yale Law Journal 100, no. 8, 1991.

4-       Diano orentlicher, settling Accounts Revisited, International Journal of Transitional Justice, Vol. 1, 2007.

5-        Faustin Z. Ntoubandi, Amnesty for Crimes against Humanity under Internationl Law, Martinus Nijhff publishers, 2oo7.

6-       Ian Brownlie, Principles of Public International Law, 1998.

7-       Johnson, Toward Self- Determination- a Reappraisal as Reflected in the Declaration on Friendly Relations, 3 Georgia JICL, 1973.

8-       Lisa J. Laplante , Outlawing Amnesty the Return of Criminal Justice in Transitional Justice Schemes, Virginia Journal of International Law, Vol. 49,  Marquette Law School Legal Studies Paper No. 08-26, 2009.

9-       M.Cherif Bassiouni, Crimes against Humanity in International Criminal Law, Martinus Nijhoff Publishers, 1999.

10-   Michael Reisman, the Cult of Custom in the Late 21th, 17 California International Law Journals, 1997.

11-   Naomi Roht- Arriaza& Lauren Gibson, the Developing Jurisprudence on Amnesty, Human Rights Quarterly - Volume 20, Number 4, November 1998.

12-   Nikolaos Tsagourias, the Nicaragua Case and the Use of Force: The Theoretical Construction of the Decision and its Deconstruction, Journal of Conflict and Security Law, 1996 1(1).

13-   Paul de Visscher, International Customary law and Codification, A.W Sijthoff- Leiden Publishing Company, 1972.

14-   PTD Rakate, The Duty to Prosecute and the Status of Amnesties Granted for Gross and Systematic Human Right Violations in International Law: Towards a Balance Approach Model, DOF Laws, etd. Unisa.

15-   Slama jo Lynn, Opinio Juris in Customary International Law, Oklahoma City University Law Review, Vol. 15, No. 2, 1999.

16-   William J, Investigating war crimes: The struggle for accountability hits home, The San Diego Union-Tribune, November 4, 1999.

[1]  See M.Cherif Bassiouni, Crimes against Humanity in International Criminal Law, Martinus Nijhoff Publishers, 1999, at 92 and 93.

[2]  Faustin Z. Ntoubandi, Amnesty for Crimes against Humanity under Internationl Law, Martinus Nijhff publishers, 2oo7, at 209.

[3]      See Ian Brownlie, Principles of Public International Law, 1998, at 4-11.

[4]      PTD Rakate, The Duty to Prosecute and the Status of Amnesties Granted for Gross and Systematic Human Right Violations in International Law: Towards a Balance Approach Model, DOF Laws, etd. Unisa, at 198. Also the ICJ in the North Sea Continental Shelf Cases [1969] ICJ Rep.3 at 44 has described these two main sources of customary international law as follows:

      … not only most the acts concerned amount to a settled practice, but they must also be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.

[5]      Faustin Z. Ntoubandi, ibid, at 209.

[6]      Amnesties in International law and Practic, CTJ Short Paper on Amnesties, 9 Oct, 2008.

[7]    See notably Diano orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100, no. 8 (1991): 2537-2618; and “settling Accounts Revisited”, International Journal of Transitional Justice, Vol. 1, 2007, 10– 22, at p. 13; or Antonio Cassese, International Criminal Law, Oxford University Press, 2003, at p. 313. Cassese cites notably the revision of the French Constitution to implement the ICC Statute, in particular of the principle that laws on amnesty may not be relied upon for crimes falling within the ICC mandate (International Criminal Law, at 314-315.

[8]    William J, Investigating war crimes: The struggle for accountability hits home, The San Diego Union-Tribune, November 4, 1999.

[9]      See Naomi Roht- Arriaza& Lauren Gibson, The Developing Jurisprudence on Amnesty, Human Rights Quarterly - Volume 20, Number 4, November 1998, pp. 846-847.

[10]     ibid, at pp. 849-850.

[11]    ibid, at pp. 851-852.

[12]    See Lisa J. Laplante , Outlawing Amnesty the Return of Criminal Justice in Transitional Justice Schemes, Virginia Journal of International Law, Vol. 49, 2009,  Marquette Law School Legal Studies Paper No. 08-26.

[13]    For getting more information about the formation of Opinio Juris see Paul de Visscher, International Customary law and Codification, A.W Sijthoff- Leiden Publishing Company, 1972, at pp. 46- 60.

[14]    Slama jo Lynn, Opinio Juris in Customary International Law, Oklahoma City University Law Review, Vol. 15, 1999, No. 2, pp. 603- 625.

[15]    Michael Reisman, the Cult of Custom in the Late 21th, 17 California International Law Journal, (1997) 133 at 135.

[16]    PTD Rakate, The Duty to Prosecute and the Status of Amnesties Granted for Gross and Systematic Human Right Violations in International Law: Towards a Balance Approach Model, DOF Laws, etd. Unisa, at p. 202.

[17]    For General Assembly Resolution 2526 (XXV), see Johnson, Toward Self- Determination- a Reappraisal as Reflected in the Declaration on Friendly Relations, 3 Georgia JICL (1973), 145- 63. See also Nikolaos Tsagourias, The Nicaragua Case and the Use of Force: The Theoretical Construction of the Decision and its Deconstruction, Journal of Conflict and Security Law, 1996 1(1):81-93.

[18]    GA Res. 2312 (XXII) of 14 Dec. 1967, UN GAOR 22^nd Sess. Supp. No. 16 at 81, UN Doc A/6716 (1967).

[19]    To see the text of resolution refer to www.un.org/documents/ga/res/26/ares26.htm