CHAPTER 4 AMNESTY
4.4 Legal arguments against foreign amnesties
4.4.1 Amnesty for gross human rights violations is contrary to States’
4.4.1.2 Amnesty and States Parties to the Rome Statute
The Rome Statute is silent on the question of national amnesties for international crimes. No provision is made for lack of jurisdiction, or otherwise, by the ICC over a case in the event that a person has been granted amnesty under the domestic law of a State.1113
Genocide Convention) or whether or not there is in fact a relevant treaty (for example, crimes against humanity)”.
1111 Bassiouni1996 Law and Contemporary Problems 68; Henrard 1999 Michigan State University Detroit College of Law Journal of International Law 614, Enache-Brown and Fried 1998 McGill Law Journal 616; Motala 1995 Comparative and International Law Journal of Southern Africa 353,357 and Stigen The Principle of Complementarity 211.
1112 These are war crimes committed during international armed conflicts but which are not classified as “grave breaches”. See 4.4.2.3.3 hereunder.
1113 Dugard “Possible Conflicts with Truth Commissions” 700; Werle International Criminal Law 78 and Rakate The Duty to Prosecute and the Status of Amnesties 191.
Nevertheless, commentators on the ICC have argued that a number of the provisions of the Rome Statute imply that the Statute excludes national amnesties.1114 These provisions are discussed below.
4.1.1.1.1 The Preamble to the Rome Statute
The Preamble to the Rome Statute states that States Parties are “determined to put an end to impunity for the perpetrators” of international crimes as defined in the Statute,1115 that “the most serious crimes of concern to the international community as a whole must not go unpunished”,1116 and that:
their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.1117
The Vienna Convention on the Law of Treaties provides that a treaty must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".1118 Since the object and purpose of the Rome Statute are obviously to end impunity for the gross violations of human rights,1119 it seems quite clear that the above provisions of the Preamble are incompatible with national amnesties.1120
The Vienna Convention on the Law of Treaties also provides that treaties must be performed in good faith.1121 In light of this provision and of the overall purpose of the Rome Statute (to end impunity for gross human rights violations), adopting an amnesty
1114 Rakate The Duty to Prosecute and the Status of Amnesties 193; Robinson 2003 European Journal of International Law 485; Akande 2003 Journal of International Criminal Justice 643;
Arsanjani 1999 American Society of International Law 67 and Hafner 1999 European Journal of International Law 108.
1115 Para 5 Preamble to the Rome Statute.
1116 Para 5 Preamble to the Rome Statute.
1117 Para 5 Preamble to the Rome Statute.
1118 Scharf 1999 Cornell International Law Journal 522.
1119 Para 5 Preamble to the Rome Statute. In his 1998 Report, the UN Secretary General also stated that the Rome Statute aims at putting “an end to the global culture of impunity-the culture in which it has been easier to bring someone to justice for killing one person than for killing 100.000”. UN Secretary General “Annual Report of the Secretary-General on the Work of the Organisation-1998” UN Doc A/53/457 (27 August 1998) para 180.
1120 Arsanjani 1999 American Society of International Law 67; Robinson 2003 European Journal of International Law 484. See also Hafner 1999 European Journal of International Law 108:
“[a]llowing amnesties as a ground for denying surrender of a person to the Court would run counter to the need to avoid impunity for the crimes in question […]”.
1121 Art 26 (“Pacta sunt servanda”): “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.
for the ICC crimes would be contrary to the duty of good faith performance with regard to the duty stated in the Preamble.1122
In view of the above, it must be concluded that amnesties are contrary to States Parties’
obligations under the Rome Statute and that this places amnesties for international crimes outside the realm of States Parties’ sovereignty. This conclusion is also supported by the provisions of article 17(1)(a) of the Rome Statute, which is discussed below.
4.1.1.1.2 Article 17(1)(a) of the Rome Statute
Article 17 (1)(a) of the Rome Statute sets out the conditions for the admissibility of a case before the ICC. If one of these conditions is not met, a case will be declared inadmissible by the ICC Pre-Trial Chamber.
Under this article, a case will not be admissible if it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable
“genuinely” to carry out the investigation or prosecution. This provision embodies the principle that, on the one hand, the ICC is not meant to replace national courts,1123 but that, on the other hand, in order to end impunity of gross violations of human rights, the ICC will take over a case, where the State’s authorities are unwilling or unable to genuinely investigate and prosecute a case.1124
Jurdi1125 argues that since amnesty laws preclude the possibility for national authorities to investigate a case for the purposes of trial and punishment, such amnesties cannot bar a case from being admissible under article 17(1)(a). Instead, amnesties would be regarded as evidence of inability or unwillingness of national authorities to
1122 Bellelli “The Establishment of the System of International Criminal Justice” 38.
1123 O’Shea Amnesty 257: “The stated determination in the preamble to ensure an ‘end to impunity’
requires, in a regime of ‘complementarity’ that states are similarly obliged to pursue international offenders”.
1124 Rakate The Duty to Prosecute and the Status of Amnesties 194.
1125 Jurdi The International Criminal Court 82.
prosecute.1126 Given this interpretation, it is clear that the drafters of the Statute did not consider amnesty as a bar to the exercise of the ICC’s jurisdiction.1127
Furthermore, given the fact that one of the purposes of the complementarity regime of the Rome Statute is to protect the States Parties’ jurisdictional sovereignty,1128 and given that amnesties were not included in the Rome Statute as grounds of inadmissibility of a case before the ICC, one should conclude that States Parties did not consider amnesties for the ICC crimes as a legitimate exercise of their “sovereignty”.
The implication of the above argument is that South African courts can try perpetrators of international crimes that have been the subject of an amnesty law in a foreign State that is party to the Rome Statute, without violating the sovereignty of that State. Such prosecutions would be quite lawful under international law.