Amnesty under International Legal Framework

Abstract

Brief Abstract

There is a growing domestic practice of adopting Amnesty Laws within the context of the developing international legal framework. New Governments have little difficulty in granting amnesty to the leaders of the predecessor regime, however atrocious their crimes, where peace, national reconciliation and rehabilitation are urgent needs. At the same time, significant normative and institutional developments have taken place in the field of International criminal Law that have a profound impact on the legitimacy and effectiveness of National amnesties. However the formulators of national amnesties frequently fail to have a proper regard to International Law.

Today this practice is called in question in respect of conduct constituting crime under International Law as a result of creation of the International Criminal Court. For its part the International Law has been characterized by a lack of clarity and coherence, especially for domestic policy makers. The position is by no means clear as illustrated by the Rome statute 1998 establishing ICC which fails to consider the question whether national amnesty may be treated as a bar to prosecution before ICC. It remains unanswered what effect National amnesties would have corresponding to the jurisdiction of International Criminal Court? Also there seems inconsistency and ambiguities manifest with the mandate of ICC and National Amnesties. With the ICC functioning, there remains an implied issue of Duty to Prosecute International Crimes as per the express mandate of ICC. The preamble of ICC expressly provides for effective prosecution which stands in conflict with later provisions of the ICC Rome Statute which are usually interpreted to provide for the grant of amnesty.

2 Given the necessity of amnesty in certain conflicts and usefulness of amnesty in promoting peace reconciliation, there arises a need for international recognition of amnesties. In the light of this development, there is a need to define legitimate parameters of amnesty in terms of International law and reconciling the national practice with the initiative of international community of states. One of the suggested mechanisms could be accommodating amnesties with the present framework of Rome Statute and limiting the national amnesties to respect the international rule of law. An unaddressed issue running through this discussion is the failure of national courts and law makers to take account of international law on the subject of amnesty. Thus, Amnesty is often the price for peace in societies in transition. It will not go away. Both international criminal courts and the courts of the third state will be compelled to address the question whether to accept national grant of amnesty as a defence to prosecution for international crimes. The silence of the Rome Statute on the subject is dangerous demanding serious consideration.