By William Bourdon
There is no doubt that, of all the reasons for the ending of public prosecution, amnesty is among the ones that give rise to the greatest controversy, abruptly checking as it does the will and the legitimate desire of the victims of the most serious crimes to see the authors of their sufferings identified and brought to justice, and to receive compensation for the harm they undergone.Amnesty, from the Greek stem amnestia, meaning to forget, is an act of the legislature whose aim is to erase an accomplished fact which would otherwise be punishable, and so either to prevent or to stop legal action, or, as the case may be, to erase any sentence. 

Amnesty laws have their own particular characteristics: they are by definition retroactive, since they can only apply to acts committed before they are passed.
They constitute laws of exception, and should on that account be restrictively applied. Their application is always a matter of public concern.
Finally, they are always stand-alone laws, which is to say that that they are voted by parliament or result from decrees with the effect of law either following a political change or following serious disorder or war and particularly civil war.

Amnesty laws naturally always have a restricted time validity and they give rise to the elimination of any penalty when they come into existence after sentence has been passed or the cessation of public proceedings when they precede sentence.

Let it be remembered that when amnesty exists in its simplest form, facts as yet uncovered are no longer sought, and facts that have been brought to light are no longer followed up.

But it should also be borne in mind that the great majority of amnesty laws do take into account the preservation of third-party rights.

Which is to say that the removal of the legal punishability of an act does not mean (at least in French law and in general in the principal European nations) that the amnestied action may not still lead in certain circumstances to a requirement to pay damages to the victim.

When a law of amnesty follows a period of grave civil unrest or armed clashes, it may simply wipe out crimes which international law sees as “universal”. When that happens, the amnesty law is “justified” by the need to re-establish peace on the one hand or national reconciliation on the other. In other words, the law of amnesty does tend to ensure the silencing of those victims who have suffered crimes which a priori have done the worst damage to a national community or to the international community of nations.

From that paradoxical nature, many contradictions arise. How can a deed be made unpunishable when it would seem on its face to be precisely the one that most demands punishment?

Everybody is aware of the use that was made of amnesty laws in Latin America (notably in Argentina and in Chile) in the 1970s, applied to crimes that by many descriptions would qualify as crimes against humanity. Readers will recall the law passed in December 1986 in Uruguay, known as the Law Declaring an Expiration of the State’s Punitive Authority, which granted amnesty to acts of repression committed by military and police officers in the period of the dictatorship from 1973 to 1975. There was an attempt to call this law into question through a public referendum, but the ballot that took place on 16 April 1989 was notable for the decision of a majority of voters (60%) to let the past go rather than imperil the permanence of democratic institutions that were still very fragile. In Argentina, in 1983, President Alfonsin forced those responsible for the military dictatorship of 1976-1983 to face trial and sentencing. Nonetheless, in 1986 he introduced a law known as the Full Stop Law, preventing new proceedings from being undertaken against the military beyond a certain date, and in June 1987 a Law of Due Obedience, allowing junior officers to escape legal retribution. Approximately 50,000 people died or disappeared under the dictatorship.

In Brazil, an amnesty law proclaimed on 28 August 1979 allowed the military leadership to throw a veil over those crimes committed during the worst period of the dictatorship. Let it be underlined that this self-amnesty preceded and to some acted as a precondition for democracy.

In Chile, as we know, in April 1978, General Pinochet introduced a tailor-made amnesty law covering crimes and misdemeanours committed since the coup of 1973.

The peaceful transfer of power between apartheid and democracy in the Republic of South Africa was ensured by the outcome of negotiations between the apartheid government and the liberation movements, specifically the creation of a Truth and Reconciliation Commission. A wholly original mechanism was put in place, under which in return for the acknowledgement of the acts they had committed, no matter how grave, people were guaranteed freedom from legal pursuit. The Interim Constitution of South Africa ratified this half-way house between amnesty and reconciliation.

Nonetheless, the demands of victims, taken up by human rights organisations, did contribute to the development in the early 1980s of a new body of international law that attempts to place some limits on the effects of amnesty laws.

The crime of forced disappearance, which embodies that torturer’s cynicism whereby the absence of a corpus dilecti might allow him to hope for freedom from prosecution for ever, was at the root of a declaration adopted by the General Assembly of the United Nations on 12 December 1992. That prohibits amnesty in those cases where its effect would be to exonerate from prosecution or legal penalty the presumed perpetrators of the crime of enforced disappearance. The same provision has been taken up by the projected Draft International Convention on the Protection of All Persons from Enforced Disappearances, currently being developed by a working group of the United Nations Commission on Human Rights in Geneva.

Moreover, it is quite clear from international principles, and from well-established international jurisprudence, consisting of customary law plus the general principles of law laid down in Article 38 of the statute of the International Court of Justice, that amnesty laws which have the effect of erasing crimes of the utmost gravity are incompatible with international humanitarian law, and that the legal consequences of any such amnesty fall under the general doctrine of violation of human rights.

Amnesty, in fact, is not only not to be set against the claims of victims of the crimes to which it refers, but still further, is contrary to the legal obligations of states.

This can be seen in several international texts:

The entirety of the draft Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity of the United Nations Commission on Human Rights.

Principle 18 in particular states, “Impunity arises from a failure by States to meet their obligations to investigate violations, to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that they are prosecuted, tried and duly punished, to provide victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violations.”

Principle 23 details the measures to be undertaken in this direction and stipulates that “safeguards must be introduced against any abuse for purposes of impunity of rules pertaining to prescription, amnesty, right to asylum, refusal to extradite, absence of in absentia procedure, due obedience, repentance, the jurisdiction of military courts and the irremovability of judges.”
In addition, the Human Rights Committee of the United Nations, in its general comment on the prohibition of torture and of cruel, inhuman and degrading treatment (General Comment 20), noted that “it is not sufficient for the implementation of Article 7 [of the International Covenant on Civil and Political Rights] to prohibit such treatment or punishment or to make it a crime. States parties should inform the Committee of the legislative, administrative, judicial and other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment in any territory under their jurisdiction.”
The Committee went on to say: “The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.”

The comments of the Human Rights Committee of the United Nations also reaffirm in several places the incompatibility of amnesty laws with the provisions of the Innternational Covenant on Civil and Political Rights, of which Article 15 (2) provides that ”nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

Finally, one can cite the Vienna Declaration and Programme of Action, adopted during the World Conference on Human Rights of 1993. The final Declaration lays down in particular that “the World Conference on Human Rights emphasizes that one of the most atrocious violations against human dignity is the act of torture, the result of which destroys the dignity and impairs the capability of victims to continue their lives and their activities.”

It continues: “States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law.”

International human rights instruments lay down the following requirements:

  • The obligation of states to guarantee and to respect internationally acknowledged human rights.
  • The responsibility of the state arising from the conduct of its officials or public authorities, when that conduct constitutes a breach of the human rights, as set out in international law, of a person or people under the authority of that state.
  • The right of victims, and where appropriate of their kin, in order to recover the full enjoyment of their rights, to obtain a fair and equitable compensation, and to learn the full truth about any violations and their perpetrators.

In this context, a law of amnesty cannot apply to or provide protection for actions which entail a violation of human rights as acknowledged in international documents, nor can it apply to state officials who perpetrate such acts.

As far as the crime of enforced disappearance, the cynicism of the torturers has been turned against them. It is indeed because victims have been able to obtain the judgement that making victims disappear is an ongoing crime that they have been able to get around the effects of amnesty.

That is the basis upon which, after the arrest of General Pinochet in London in September 1998, a number of cases were successfully brought before the courts in Santiago, leading notably to Pinochet facing charges in Chile.

A number of Argentine generals were also taken to court, and some were gaoled in cases of the abduction of children. There again, the Argentinean judge Gabriel Cavallo gave his judgement that the fact that the crime of abduction continued indefinitely and that allowed him to by-pass the effects of the law of amnesty. The Supreme Court in Santiago has many times given its opinion, particularly in July 2000, that the development of international law made the provisions of the law of amnesty inapplicable to the most serious crimes committed during the period of the dictatorship. And that was indeed the argument by which an Argentinian judge, in a decision of 6 March 2001, declared null and void the two amnesty laws of 12 December 1986 known as the Full Stop Law, and that of 4 June 1987, known as the Law of Due Obedience, on the grounds that they violated the international obligations Argentina had, particularly inasmuch as the amnesty laws were incompatible with the victims’ right to appropriate damages.

European courts have naturally had less opportunity to formulate an opinion on the matter. Nevertheless, the senior magistrate in the District Court of Montpellier, following that court’s decision to send Mr. Ely Ould Dah (the alleged Mauritanian torturer) to a higher court for trial, and referring to the potential obstacle of the Mauritanian amnesty of 14 June 1993, gave it as his judgement that “whatever the legitimacy of such an amnesty in the context of local attempts to foster reconciliation, such a law can only have application upon the territory of the State in question, and cannot be held to stand in the way of the application of international law in third-party states. The law has as a result, no bearing on the public authority for the application of the law in France.” That decision, which passed with relatively little comment, is important, for even though it does not bear directly upon the conception that amnesty laws might act as a bar to victims seeking redress, it restricts the effects of amnesty to the specific territory in question.

As regards the war in Algeria, every effort to date to get around the law of amnesty on behalf of the victims of very serious abuses has failed. The family of Mr. Lakthar Toumi were told by the appeal court in Paris that:

“The provisions of these documents [the two statutory orders of 22 March 1962 and the statute of 31 July 1968] are general and absolute; they make clear that the amnesty which they promulgate applies to all transgressions without reserve or distinction as to their nature, their legal quality, or their degree of seriousness, so long as their authors shall have acted within the particular circumstances defined by the law; that the documents referred to above apply in particular to those transgressions which have been called crimes against humanity which are common law crimes, committed under particular circumstances and for reasons which are specified in the texts which define them.”

The criminal division of the Court of Appeal confirmed this on 29 November 1968.
The question of the force of amnesty laws was also raised with regard to the war in Indochina. The Appeal Court in Paris, ruling on an appeal brought by Mr. Georges Boudarel, who used to be a district officer and deputy commander of a camp for Viet Minh prisoners in Vietnam in 1952 and 1954, stated that the crimes under discussion were covered by the amnesty of 18 June 1966 relating to the Vietnamese uprising.

There are, however, those who find a contradiction in trying to fit inappropriate crimes (such as crimes against humanity, which are by definition unforgettable) to an amnesty law which would deny their profoundest essence by applying legal amnesia to them.

That is the tenor of the appeals made on behalf of the next of kin of persons who had disappeared or who had been tortured and by the International Federation for Human Rights in 2001 after the publication of the book written by General Aussaresses.

Jean-Pierre Valat, first magistrate at the District Court in Paris, on 11 September 2001 ruled that the various legal instruments granting amnesty over the war in Algeria had extinguished any right to legal action. Permission was not granted to appeal against this decision.

Were the Court of Appeal ever to revisit that decision, it would still have to overturn the Boudarel case, which has had the result that it is impossible to prosecute anyone in France for crimes against humanity, other than those committed during the Second World War, as long as they were committed before the new Penal Code came into force on 1 March 1994. Even so, the crimes committed in Algeria would have to qualify as crimes against humanity, which seems not to be borne out by the evidence.

How should the law develop in the future?

In Sierra Leone, peace is more important than justice. This principle was laid down by British and American officials in July 1999, as the cornerstone of a peace agreement between the warring parties. Later, under pressure from victims and from international human rights groups, the United Nations “adjusted” the definition, giving its opinion that the peace treaty could not act as a barrier to victims of the appalling crimes committed in Sierra Leone in their search for redress, and that there could on the contrary not be lasting peace without justice. On 16 January 2002, Sierra Leone and the United Nations signed an agreement setting up a Special Court to pass judgement on the crimes committed in Sierra Leone.

As a result, it is now possible increasingly to consider that judges faced with an allegation relating to a crime of universal jurisdiction, and finding an amnesty law in their way, will in the first instance have to analyse the conditions under which the amnesty law was passed.

Where they find that they are faced with an amnesty law passed in a democratic country and voted in after a nationwide debate in the course of which the victims or those acting on their behalf had the chance to be heard, they will find difficult not to conclude that all grounds for public proceedings are extinguished, in so far as there shall be no doubt that the judgement erasing the otherwise punishable act was beyond dispute the result of the popular will.

Such a case has not yet presented itself, but it will occur one day before a judge: such decisions will need to be made on a case by case basis. And that, furthermore, is the sense of Article 53 of the Statute of the International Criminal Court, which allows the prosecutor, in deciding whether to pursue a case, not to go forward if he believes that “a prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.”

The drafters of the statute of the International Criminal Court wished by these means to give “carte blanche” to the prosecutor to take a decision which is quite clearly entirely political, namely a decision in the course of which he would have to weigh the requirement of peace and reconciliation on the one hand against the need for justice on the other.

Even in circumstances where legal redress would be impossible to obtain, it remains true that an amnesty law of whatever democratic character should never be used as a way of barring access to the truth, even where there is no access to justice for the victims or their relatives. That, indeed, is the trend of the efforts made by victims of torture in Algeria seeking to obtain from the French government free and unlimited access to the civil and military archives relating to the Algerian conflict.

(This article was first published in the French edition. It was translated into English by Francis Hodgson.)

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