Giving Amnesties a Second Chance

Giving Amnesties a Second Chance By Charles P. Trumbull IV* I. INTRODUCTION ...................................................................... 284 II. FROM CRIMES TO AMNESTIES .................................................. 287 A. Duty to Prosecute .......................................................... 288 B. Extraterritorial Validity .................................................. 304 III. WHEN SHOULD THE UN RECOGNIZE DOMESTIC AMNESTIES ........ 306 A. Arguments in Favor of Prosecution ................................. 307 B. Responding to These Arguments ..................................... 308 C. Arguments in Favor of the Use of Amnesties .................... 314 IV. BALANCING THE TRADE-OFF OF JUSTICE FOR PEACE .................. 320 A. The Balancing Test ....................................................... 320 V. SHOULD THE UN SUPPORT THE AMNESTIES IN ALGERIA AND C OLOM BIA? .......................................................................... 326 A. The Charter for Peace and National Reconciliation .......... 327 B. The Justice And Peace Law ............................................ 335 C. Recommendation ........................................................... 342 VI. C ONCLUSION ......................................................................... 344 Law Clerk to the Honorable M. Blane Michael, United States Court of Appeals for the Fourth Circuit; J.D. Vanderbilt Law School; B.A. Dartmouth College. I would like to thank Professors Owen Jones, Allison Danner, Larry Heifer, and Mike Newton for extremely helpful comments on earlier drafts. I would also like to thank the Vanderbilt Legal Academy Scholars Program for its support throughout the publication process. BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 25:2 I. INTRODUCTION In the past hundred years the world has witnessed atrocities on a scale never before contemplated. Nazi Germany committed acts so heinous that the international community had to develop a new expression to describe them: crimes against humanity. Joseph Stalin killed millions of Soviet citizens. Pol Pot attempted to exterminate the Buddhists in Cambodia. Slobodan Milosevic tried to eliminate the Bosnian Serbs, and the Hutu population in Rwanda killed 800,000 Tutsis and moderate Hutus before finally losing power to the Rwandan Patriotic Front. These conflicts, and over 250 others, have resulted in an estimated 75-170 million deaths. I Until recently, the international community had little hope of bringing to justice these perpetrators of human rights atrocities, at least not for those crimes committed entirely within a state's borders. 2 State leaders acted with impunity, wielding the shield of state sovereignty. The international community begrudgingly approved of domestically enacted amnesties as a legitimate mechanism for ending internal conflicts and promoting democratic transitions. Two important developments in international law, however, have caused many to question the legality of amnesties. First, the international community has recently established that it will hold at least some violators of international law accountable for their actions. In the 1990s, the United Nations (UN) created two international war crime tribunals to try perpetrators of crimes committed in the former Yugoslavia and Rwanda. Subsequently, the UN set up special courts in Sierra Leone and East Timor. In 1998, delegates from 120 countries approved the Rome Statute, establishing the first international criminal court designed specifically to prosecute crimes under international law. 3 In accord with these developments, many world leaders, international lawyers, and human rights activists now believe it is not acceptable to allow perpetrators of atrocious crimes to go unpunished. Prosecution and punishment, they argue, is essential to eliminate the notion of impunity and to deter current and future leaders from commit4 ting similar crimes. 1. M. Cherif Bassiouni, Combating Impunityfor InternationalCrimes, 71 U. COLO. L. REv. 409, 409 (2000). 2. See, e.g., Douglass Cassel, Lessons from the Americas: Guidelinesfor InternationalResponse to Amnesties for Atrocities, 59 LAW & CONTEMP. PROBS. 197, 198 (1996) (noting that in recent decades perpetrators of crimes against humanity have acted with impunity). 3. On July 17, 1998, delegates to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome voted 120-7, with 21 abstentions, to approve the statute. Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 2187 U.N.T.S. 90, UN Doc. A/CONF. 183/9 (1998) [hereinafter Rome Statute]. The official website of the International Criminal Court is available at http://www.icccpi.int/home.html&l=en. 4. See discussion infra Part III.A. 2007] GIVING AMNESTIES A SECOND CHANCE Second, international scholars and government officials in most countries now agree that individuals possess certain fundamental rights such as the rights to be free from torture, slavery, and genocide, the violation of which is considered ajus cogens crime. 5 Offering amnesty to persons who violate these fundamental human rights is inconsistent with the idea that these rights are nondero6 gable. Despite the recent recognition of fundamental human rights and the accompanying demand to bring violators of these rights to justice, governments in wartorn countries struggle to determine the best way to deal with perpetrators of crimes within their own borders. Leaders in Peru, El Salvador, Argentina, Chile, Haiti, Sierra Leone, South Africa, Colombia, Afghanistan, and Algeria, among others, have passed broad amnesty laws that protect persons who have committed serious violations of international law from domestic prosecution. The decision to grant amnesty often results from a combination of several considerations. Some countries are ill-equipped to prosecute these criminals, esyecially when the violations occurred on a large scale or a number of years ago.FLeaders may see an amnesty as necessary to halt the human rights abuses, believing guerrilla groups or entrenched dictators may naturally be reluctant to cease hostilities or relinquish power if they know that they will face prosecution thereafter. 8 Leaders may also fear that large scale prosecutions would undermine the process of reconciliation, 9 and that the government can better serve the country's immediate needs by focusing on restoring order, rebuilding infrastructure, and implementing democratic reforms. Thus, the legality of amnesties for perpetrators of serious crimes under international law is in a state of transition and considerable uncertainty. On one hand, various academics, judges, and government officials argue that customary international law prohibits amnesties and requires states to seek justice for serious human (...truncated)