Amnesty For Crime In International Law And Practice

AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE This page intentionally left blank AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE by Andreas O'Shea KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN 90-411-1759-8 © 2002 Kluwer Law International © 2004 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, niicrofilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands To Millicent This page intentionally left blank vii FOREWORD Until recent times few restraints were placed on the granting of amnesty. New governments had little difficulty in granting amnesty to the leaders of predecessor regimes, however atrocious their crimes, where peace or national reconciliation so required. Today this practice is called into question in respect of conduct constituting a crime under international law as a result of the creation of international criminal courts and the emergence of a possible customary international law obligation upon States to try or extradite those guilty of committing international crimes. The position is by no means clear as illustrated by the 1998 Rome Statute establishing an International Criminal Court which fails to consider the question whether a national amnesty may be treated as a bar to prosecution before the ICC. A further complicating factor is the Truth and Reconciliation Commission, employed in South Africa, to introduce a form of qualified amnesty. While international law may not permit recognition of an unqualified national amnesty, is the position different where, as in the case of South Africa, amnesty is conditional upon a full investigation into the circumstances of the crime, after an application for amnesty by the wrongdoer? These troubling questions form the subject of O'Shea's study. After a careful examination of the history of amnesty (with special reference to Latin America and Africa) and its rationale, in the context of theories of punishment, O'Shea addresses the position of amnesty in international law. Here he considers the question of prosecution and amnesty before international tribunals (Nuremberg, ICTY, ICTR and ICC) and then turns to the vexed question of the duty to prosecute international crimes, under treaty and custom. In the course of his study O'Shea provides a thorough analysis of developments in international criminal law. A theme running through O'Shea's book is the failure of national courts and lawmakers to properly take account of international law on the subject of amnesty. The study concludes with a proposed Protocol to the Rome Statute in which the author suggests circumstances in which a state might be exempted from the duty to prosecute those guilty of international crimes and permitted to grant amnesty in respect of such crimes. This is a thoughtful and challenging proposal that should receive full attention by the international viii Foreword community. Amnesty is often the price for peace in societies in transition. It will not go away. Both international criminal courts and the courts of third States will be compelled to address the question wh