Using amnesties in conflict and transition - new guidelines published
25 October 2013
New guidelines to help balance the competing demands for amnesty and accountability in conflicts and political transitions have been published today. The Belfast Guidelines on Amnesty and Accountability set out a framework to evaluate the legality and legitimacy of amnesties in accordance with the multiple legal obligations faced by states undergoing conflict or political transition.
Debates over who should be held accountable for international crimes and human rights violations are often among the most bitterly contested issues in conflicts and transitions. Although they have a long history in international law and policy of being used as tools to promote peace and reconciliation and to protect human rights, the use of amnesties has become increasingly controversial in recent years where they are viewed as conflicting with states’ duty to prosecute. Despite this, there has not been a reduction in the use of amnesties, and their potential role in ending conflict, promoting reconciliation and facilitating truth recovery is currently the subject of debate in many states including Syria, Colombia, Georgia, Uganda, Northern Ireland and Spain.
Important and practical resource
The Belfast Guidelines will be an important practical resource for international and national policymakers, civil society activists, and lawyers who are involved in brokering or implementing peace agreements, They have been written by a group of international human rights and conflict resolution experts led by Louise Mallinder and Tom Hadden at the University of Ulster’s Transitional Justice Institute and funded by the Nuffield Foundation. The group includes several former truth commissioners, a UN special rapporteur and the former head of legal codification at the United Nations, as well as leading scholars and civil society activists.
The recommendations draw on a wide range of evidence including international treaties, the case law of international courts, United Nations declarations, peace agreements, national amnesty legislation and the case law of national courts.
Louise Mallinder, one of the project’s leaders said: “We are calling for the Belfast Guidelines to be adopted into international practice, to ensure that amnesties are made more compliant with international law.”
The Belfast Guidelines have been translated into Arabic, French, Mandarin, Russian and Spanish. They will be sent to over 300 leaders in intergovernmental institutions, government departments of donor, mediator or transitional states, and to human rights and peacebuilding organisations.
Key findings and recommendations include:
- During or after conflicts, states have multiple legal obligations to ensure the violations are properly investigated, prosecute those responsible, provide a remedy to victims, prevent continuing abuses, and ensure respect for human rights in the future. The Guidelines recommend that states should seek to ensure fulfilment these obligations and where they conflict, efforts should be made to balance completing obligations
- Prosecution and punishment are not the only forms of accountability; amnesties can be used to facilitate selective prosecution strategies, or made conditional on participation in truth commissions, public inquiries, restorative justice, and reparations.
- It is important to distinguish between illegitimate and legitimate amnesties: amnesties that are unconditional, prevent investigations and ensure impunity for those most responsible for serious crimes are generally illegitimate; amnesties designed primarily to ensure sustainable protection of human rights, and require offenders to engage with measures to ensure truth, accountability and reparations are more likely to be legitimate.
- Acts that qualify for amnesty should be clearly specified and limited in scope to minimise the potential for conflict with any obligation under international law.
- Special attention should be paid to the treatment of children responsible for acts that may qualify as crimes.
- To ensure transparency and legitimacy, there should be public engagement in the design of an amnesty process, and steps should be taken to ensure victims can participate in decisions to grant amnesty in individual cases.
- Formal and independent procedures should be established to review or adjudicate compliance with amnesty conditions.
- Where a conditional amnesty is revoked, prosecutions should be pursued for the original crime and any subsequent offences.
- Where an amnesty bars civil liability, administrative programmes should be considered to provide reparations and remedies for victims.