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United Nations peace-building, amnesties and alternative forms of justice: A change in practice?

Published online by Cambridge University Press:  19 April 2010

Carsten Stahn
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International Review of the Red Cross , Volume 84 , Issue 845: Impunité/Impunity , March 2002 , pp. 191 - 205
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Copyright © International Committee of the Red Cross 2002

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References

1 For an overview, see Scharf, M. P., “Justice versus peace”, in Sewall, S. B. and Kaysen, C. (eds), The United States and the International Criminal Court, Rowman & Littlefield, Boston, 2000, p. 179Google Scholar.

2 In 1985, United Nations Special Rapporteur Louis Joinet suggested in a report that international crimes should not be subject to amnesties. See “Study on amnesty laws and their role in the safeguard and promotion of human rights”, Preliminary Report by Louis Joinet, Special Rapporteur, UN Commission on Human Rights, UN Doc. E./CN.4/Sub.2/ 1985/16 (1985). Furthermore, the Human Rights Committee noted in its General Comment No. 20(44) on Article 7 of the International Covenant on Civil and Political Rights that amnesties are “generally incompatible” with the obligation of the States Parties under Articles 2(3) and 7 of the Covenant, UN Doc. No. CCPR/C/21/Rev.1/ Add. 3, 7 April 1992. See also Roht-Arriaza, N., “Sources in international treaties of an obligation to investigate, prosecute, and provide redress”, in Roht-Arriaza, N. (ed.), Impunity and Human Rights in International Law and Practice, Oxford University Press, Oxford, 1995. pp. 24 and 29Google Scholar; and N. Roht-Arriaza, “Special problems of a duty to prosecute: Derogation, amnesties, statutes of limitation, and superior orders”, ibid., pp. 57 and 59.

3 See generally on truth commissions as institutions, challenging the option of prosecution, Dugard, J., “Dealing with crimes of a past regime: Is amnesty still an option?”, Leiden Journal of International Law, Vol. 12, 1999, p. 1002CrossRefGoogle Scholar.

4 The accords were concluded between the government of El Salvador and a coalition of rebel groups. They are reprinted in United Nations, El Salvador Agreements: The Path to Peace, UN Department of Public Information, No. 1208–92614 (1992).

5 Buergenthat, T., “The United Nations Truth Commission for El Salvador”, Vanderbilt journal of Transnational Law, Vol. 27, 1994, p. 498Google Scholar.

6 See Popkin, M. and Roht-Arriaza, N., “Truth as justice: Investigatory commissions in Latin America”, in Kritz, Neil J. (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. 1, United States Institute of Peace Press, Washington, 1995, pp. 262 and 283Google Scholar.

7 See D. W. Cassel, “International truth commissions and justice”, in Transitional Justice, ibid., pp. 326 and 328. The General Amnesty Law for the Consolidation of Peace of 20 March 1993 (Decree 486) granted full, absolute and unconditional amnesty to all those who participated in any way in the commission of political crimes or common crimes linked to political crimes or crimes in which the number of persons involved exceeded twenty persons.

8 See United Nations, “Report of the Secretary-General on the United Nations Observer Mission in El Salvador”, UN Doc. S/25812/Add. 1 of 24 May 1993. The Inter-American Commission on Human Rights (IACHR), however, found the amnesty to be in violation of the American Convention on Human Rights. See IACHR, “Report on the situation of human rights in El Salvador”, OEA/Ser.L/V/II.85, Doc. 28 rev., 11 February 1994, at 77. On the reaction to the amnesty in El Salvador, see generally Popkin and Roht-Arriaza, op. cit. (note 6), p. 283.

9 Agreement between President Jean-Bertrand Aristide and General Raoul Cedras of 3 July 1993, in Report of the United Nations Secretary-General, “The situation of democracy and human rights in Haiti”, UN Doc. A/47/975. S/26063, 12 July 1993, pp. 2–3.

10 Scharf, M. P., “Swapping amnesty for peace: Was there a duty to prosecute international crimes in Haiti?”, Texas International Law Journal, Vol. 31, 1996, p. 1Google Scholar. See also I. P. Strotzky, “Haiti: Searching for alternatives”, in Impunity and Human Rights in International Law and Practice, op. cit. (note 2), p. 188.

11 Paragraph 6 of the Governors Island Agreement granted full amnesty to the leaders and supporters of the military coup for “political human rights violations”. See Strotzky, op. cit. (note 10), p. 189.

12 Statement of the President of the Security Council of 15 July 1993, Resolutions and Decisions of the Security Council 1993, 48 SCOR, at 126, UN Doc. S/26633 (1993).

13 On the Truth Commission in Haiti, see Hayner, P. B., Unspeakable Truths, Confronting State Terror and Atrocity, Routledge, London, 2001, p. 66Google Scholar.

14 On the involvement of the United Nations in the Guatemalan peace process, see generally Grote, R., “The United Nations and the establishment of a new model of governance for Central America: The case of Guatemala”, Max Planck Yearbook of United Nations Law, Vol. 2, 1998, p. 239Google Scholar.

15 Agreement on the Basis for the Legal Integration of the Unidad Revolucionaria Gualtemateca, UN Doc. A/51/776 — Doc. S/ 1997/51, Annex II, paras 17 ff. The details of the amnesty were later spelled out in the Law of National Reconciliation, which stated that amnesty shall not extend to the crimes of genocide, torture and forced disappearance. See Art. 8 of the Law of National Reconciliation of 18 December 1996. For a full account, see Grote, op. cit. (note 14); p. 266 and Popkin, M., “Guatemala's national reconciliation law: Combating impunity or continuing it?”, Revista Instituto Interamericano de Derechos Humanos, Vol. 24, 1996, p. 173Google Scholar.

16 See Grote, op. cit. (note 14), p. 268.

17 Accord on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that have Caused the Guatemalan Population to Suffer, signed in Oslo on 23 June 1994, UN Doc. A/48/954-S/1994/751 of 1 July 1994. On the work of the Commission, see Tomuschat, C., “Between national and international law: Guatemala's Historical Clarification Commission”, in Götz, V. (ed.), Liber amicorum Günther jaenicke, Springer, Berlin, 1998, p. 991Google Scholar.

18 Lusaka Ceasefire Agreement of 10 July 1999, UN Doc. S/1999/815 of 23 July 1999. The agreement was “witnessed” by the United Nations.

19 See Chapter 9.1 and 9.2 of Annex A to the Ceasefire Agreement of 10 July 1999, UN Doc. S/1999/815.

20 See the preambles to Security Council Resolutions 1273 (1999) of 5 November 1999, UN Doc. S/RES/1273, 1279 (1999) of 30 November 1999, UN Doc. S/RES/1279 (1999) and 1291 (2000) of 24 February 2000, UN Doc. S/RES/1291 (2000).

21 It is worth noting in this context that during negotiation of the Rules of Procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY), the United States submitted a proposal that perpetrators of low-level crimes be given immunity from prosecution in return for their testimony. See “United States proposed Rules of Procedure for the ICTY”, in Morris, V. and Scharf, M. P., An Insider's Guide to the International Criminal Tribunal for the former Yugoslavia, Vol. 2, Irvington-on-Hudson, New York, 1995, pp. 509 and 560Google Scholar. The Tribunal's practice, however, has been to reject claims for immunity of low-level perpetrators. In a statement to members of diplomatic missions, the President of the Tribunal noted: “The persons appearing before us will be charged with genocide, torture, murder, sexual assault, wanton destruction, persecution and other inhumane acts. After due reflection, we have decided that no one should be immune from prosecution for crimes such as these, no matter how useful their testimony may otherwise be”. See United Nations, “Statement by the President made at a briefing to members of diplomatic missions”, UN Doc. IT/29, a t 5 (1994), reprinted in Morris, V. and Scharf, M. P., An Insider's Guide to the international Criminal Tribunal for the former Yugoslavia, Vol. 1, Irvington-on-Hudson, New York, 1995, p. 112Google Scholar.

22 Domestic courts in countries such as Argentina, Chile, El Salvador or Honduras have subsequently restricted the scope of amnesty laws by ruling them inapplicable to certain serious human rights violations or insisting on their jurisdiction to determine on case-by-case basis whether or not the amnesty provisions apply. See on this juris-prudence, Roht-Arriaza, N. and Gibson, L., “The developing jurisprudence on amnesty”, Human Rights Quarterly, Vol. 20, 1998, p. 843CrossRefGoogle Scholar.

23 UNTAET Regulation 2000/15 on the establishment of panels with exclusive prosecujurisdiction over serious criminal offences of 6 June 2000, <http://www.un.org/peace/etimor/UntaetN.htm.> On the UNTAET panels, see Stahn, C., “The United Nations Transitional Administrations in Kosovo and East Timor: A first analysis”, Max Planck Yearbook of United Nations Law, Vol. 5, 2001, pp. 105 and 171 (2001) (forthcoming)Google Scholar; Linton, S., “Rising from the ashes: The creation of a viable criminal justice system in East Timor”, Melbourne University Law Review, Vol. 25, 2001, p. 122Google Scholar; Othman, M., “Peacekeeping operations in Asia: Justice and UNTAET”, International Law Forum, Vol. 3, 2001, p. 118Google Scholar.

24 UNMIK intended to create a Kosovo War and Ethnic Crimes Court for the prosecution of war and ethnically motivated crimes. However, owing to budgetary restraints and the number of cases simultaneously pending prebefore the domestic courts, UNMIK decided to deal with these cases within the existing judicial framework by providing the local courts with international judges and prosecutors. See OSCE Mission in Kosovo, Report on the Criminal Justice System (2000), pp. 71–72, <http://www.oesce.org/kosovo>. See also Section 1 of UNMIK Regulation 2000/64 of 15 December 2000.

25 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Demoviable cratic Kampuchea, <http://www.cambodianparliament.org/Legislative.htm>. The Court Chambers will inter alia rule on charges of genocide, crimes against humanity and war crimes. See Articles 4, 5 and 6 of the Law. It should be noted, however, that on 8 February 2002 the United Nations withdrew from negotiations for the establishment of the Extraordinary Chambers on the grounds that the Law establishing them would have prebefore vailed over the Articles of Cooperation (the agreement) between the United Nations and the Government of Cambodia, and that the Chambers, as currently envisaged, would not “guarantee the independence, impartiality and objectivity that a court established with the support of the United Nations must have”. Statement by UN Legal Counsel Hans Corell at a press briefing at UN Headquarters in New York, 8 Feburary 2002, <http://www.un.org/News/dh/infocus/cambodia/corell-brief.htm>.

26 Art. 9 of the Law, op. cit. (note 25).

27 See “Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000”, UN Doc. S/2000/915. See generally on the Special Court for Sierra Leone, Scharf, M. P., “The Special Court for Sierra Leone”, ASIL Insights, October 2000Google Scholar; Frulli, M., “The Special Court for Sierra Leone: Some preliminary comments”, European Journal of International Law, Vol. 11, 2000, p. 857CrossRefGoogle Scholar; Cryer, R., “A ‘Special Court’ for Sierra Leone?”, International and Comparative Law Quarterly, Vol. 50, 2001, p. 435CrossRefGoogle Scholar; Tejan-Cole, A., “The Special Court for Sierra Leone: Conceptual concerns and alternatives”, African Human Rights Law Journal, Vol. 1, 2001, p. 107Google Scholar.

28 See Art. 12 of the Draft Statute of the Court, contained in the Report of the Secretary-General, op. cit. (note 27), at 25; and Art. 2 of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, ibid., at 15.

29 See UNTAET Regulation 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor of 13 July 2001. See also Sierra Leone, Truth and Reconciliation Act 2000, <http://www.sierraleone.org/trc.html>.

30 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone of 7 July 1999, UN Doc. S/1999/777, Annex.

31 For a discussion of this, see McDonald, A. J., “Sierra Leone's uneasy peace: The amnesties granted in the Lomé Peace Agreement and the United Nations' dilemma”, Humanitäres Völkerrecht, Vol. 1, 2000, p. 12Google Scholar.

32 Report of the Secretary-General, op. cit. (note 27), para. 23. A reminder of this reservation was later given by the Security Council in the preamble to SC Resolution 1315 (2000) of 14 August 2000, UN Doc. S/RES/1315 (2000).

33 See Truth and Reconciliation Commission Act 2000, op. cit. (note 29). On the Commission, see also Hayner, op. cit. (note 13), p. 70.

34 Art. 6 (2) of the Truth and Reconciliation Commission Act 2000, op. cit. (note 29).

35 See Parlevliet, M., “Truth Commissions in Africa: The non-case of Namibia and the emerging case of Sierra Leone”, International Law Forum, Vol. 2, 2000, p. 107Google Scholar, where the author notes that “it is the first time that the UNOHCHR has been so closely involved in setting up a truth commission”. On the Commission's creation, see also McDonald, op. cit. (note 31), p. 13.

36 Letter dated 12 January 2001 from the Secretary-General to the President of the Security Council, UN Doc. S/2001/40, para. 9.

37 Letter dated 22 December 2000 from the President of the Security Council to the Secretary-General, para. 1, UN Doc. S/2000/ 1234.

38 See para, (d) of the preamble to UNTAET Regulation 2001/10 of 13 July 2001, <http://www.un.org/peace/etimor/UntaetN.htm>.

39 See generally Part III of UNTAET Regulation 2001/10.

40 See generally Part IV of UNTAET Regulation 2001/10.

41 See Section 32 of UNTAET Regulation 2001/10.

42 In South Africa, amnesty was granted in return for full confession of involvement in politically motivated crimes. In particularly grave cases, the Amnesty Committee of the Truth Commission examined whether there was “proportionality” between the act and the political objective pursued. On the requirement of proportionality for the granting of immunity by the South African Committee on Amnesty, see Art. 20(3)(f) of the Promotion of National Unity and Reconciliation Act of 1995. For the practice of the Committee on Amnesty, see Puurunen, T., The Committee on Amnesty of the Truth and Reconciliation Commission of South Africa, Helsinki Forum luris, Helsinki, 2000, p. 37Google Scholar.

43 Report of the Secretary-General, op. cit. (note 27), para. 22. This view is in line with Principle 7 of the newly established Princeton Principles on Universal Jurisdiction, which express a presumption that amnesties are incompatible with a State's obligation to prevent impunity. Principle 7 reads: “Amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law as specified in Principle 2(1)”. Principle 2(1) lists as serious crimes under international law “(1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture”, The Princeton Principles are obtainable at <http://www.law.nyu.edu/library/foreign_intl/international.html>.

44 See paras 1–3 of SC Resolution 1315 (2000), op. cit. (note 32).

45 See para, l of SC Res. 1272 (1999) of 25 October 1999, endowing UNTAET with “overall reponsibility for the administration of East Timor” and the “exercise of all legislative and executive authority, including the administration of justice”.

46 The Security Council suggested in para. 3 of its Resolution 1315 (2000) that the jurisdiction of the Special Court for Sierra Leone be limited to “persons who bear the greatest responsibility”. The Secretary-General opted for the term “most responsible”. See Art. 1 of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, op. cit. (note 28), at 15.

47 On the duty to prosecute serious human rights violations, see generally Orentlicher, D. F., “Settling accounts: The duty to prosecute human rights violations of a prior regime”, Yale Law Journal, Vol. 100, 1991, p. 2537CrossRefGoogle Scholar; and Edelenbos, C., “Human rights violations: A duty to prosecute?”, Leiden journal of International Law, Vol. 7, 1994, p. 5CrossRefGoogle Scholar.

48 For a survey of the practice of truth commissions, see Hayner, P. B., “Fifteen truth commissions — 1974 to 1994: A comparative study”, Human Rights Quarterly, Vol. 15, 1994, p. 597CrossRefGoogle Scholar.

49 See generally on this aspect, Widner, J., “Courts and democracy in postconflict transitions: A social scientist's perspective on the African case”, American Journal of International Law, Vol. 95, 2001, pp. 64 and 65CrossRefGoogle Scholar.

50 See Article 8 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) and Article 9 of the Statute of the ICTY.

51 See Article 8(2) of the Draft Statute of the Special Court for Sierra Leone and the comments by the Secretary-General in his report to the Security Council, op. cit. (note 27), para. 10.

52 Section 1.1 of UNTAET Regulation 2000/15.

53 See Sections 27, 28 and 32 of UNTAET Regulation 2001/10.