The international legal status of amnesties granted for serious crimes: historical and contemporary perspectives

Amnesties have been used from time immemorial as instruments of pacification and reconciliation in the aftermath of periods of war and civil strife. They have continued to be issued around the globe at a relatively steady rate in recent years, generally as a means to facilitate the return of peace after an armed conflict or a transition to democracy following repressive rule. The inherent effect of amnesties being to extinguish liability for criminal acts, they have come under increasing international scrutiny in the past quarter-century as a consequence of the development of a global accountability policy. Although there is no international convention explicitly prohibiting the grant of amnesty for serious crimes, there has been a growing tendency to consider that amnesty laws covering perpetrators of grave crimes are contrary to international law. The present study investigates this question by examining whether a norm prohibiting amnesties applying to serious crimes has emerged under international law. The first part of the study is expected to bring an original contribution to knowledge by replacing amnesty in its historical context, something that has only been cursorily done in the literature. It retraces the origin of amnesty as a pacification and reconciliation mechanism and explores ancient amnesty traditions having arisen in different parts of the world. It then examines the evolution of the traditional practice of granting general amnesties at the end of European wars up to the early twentieth century and, in parallel, of the notion that the perpetrators of certain grave crimes incur liability under international law and should be punished, rather than amnestied, in the aftermath of armed conflicts. The second part aims to contribute to the existing literature by analysing the specific question of whether international law prohibits the grant of amnesty for serious crimes. While several studies have considered how amnesty laws can be designed to meet international accountability and human rights standards, this research examines the extent to which unlimited amnesty laws may be regarded as invalid or ineffective. Through an analysis of primary sources, it seeks to determine whether international legislation, the practice of states, the policy of international organisations and the case-law of international courts support the view that amnesties extending to grave crimes are prohibited by international law or are ineffective in preventing the prosecution of such crimes.