Why is the Practice of Amnesty not Condemned by the General Assembly Declaration on the Rule of Law?

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At its current session, the United Nations General Assembly held a special session entitled on ‘the Rule of Law at the National and International Levels’. It is the latest in a number of initiatives taken within the United Nations, including a 2004 report by the Secretary-General, a 2011 follow-up report, and a special session of the Security Council held in January 2012.

The General Assembly session concluded with the adoption of the ‘Declaration of the High-level Meeting of the GeneralAssembly on the Rule of Law at the National and International Levels’. It represents an comprehensive statement of the views shared by Member States on this important issues.

The absence of any reference to amnesty is very striking.

In the 2004 report, the Secretary-General called for the rejection of ‘any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes’. These views were repeated in his 2011 follow-up report on the subject.

When the Secretary-General spoke to theSecurity Council in January of this year, he called upon it to ‘reject any endorsement of amnesty for genocide, war crimes, crimes against humanity or gross violations of human rights and international humanitarian law’.

Some international courts and tribunals have even gone so far as to suggest that amnesty should not only be discouraged, as a matter of policy, but that it is prohibited as a question of international law. This has always struck me as an overly extreme position, that cannot be defended either by legal reasoning or on policy grounds. I develop the arguments in a chapter of my recent book Unimaginable Atrocities. Moreover, the proposition that customary international law prohibits amnesty seems inconsistent with State practice.

Hence, the interest in the Declaration by the General Assembly precisely because it does not condemn amnesty.

Is this simply an oversight? Did the Secretary-General, who has insisted upon the issue in his earlier reports and representations before the Security Council, simply forget to mention the matter to the General Assembly?

To be sure, there is language in the Declaration that speaks to the issue of impunity. Here are the most relevant paragraphs:

21. We stress the importance of a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures to ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the State and promote the rule of law. In this respect, we underline that truth-seeking processes, including those that investigate patterns of past violations of international human rights law and international humanitarian law and their causes and consequences, are important tools that can complement judicial processes.

22. We commit to ensuring that impunity is not tolerated for genocide, war crimes and crimes against humanity or for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through domestic mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law, and for this purpose we encourage States to strengthen national judicial systems and institutions.

But why is there no outright condemnation of amnesty? My suspicion is that it would be impossible to reach consensus on such an absolute prohibition. The absence of an outright condemnation of amnesty speaks volumes about the status of this question from the standpoint of international law and practice of States. States prefer a more nuanced approach to the issue, leaving the door open for amnesty - even for core international crimes - when this may assist in peacemaking. It is wise that they do so, and dangerous to try to remove it from the toolbox of those who are trying to bring an end to violent conflict.
In the future, when judges are tempted to opine that amnesty is prohibited as a matter of customary law, they might explain why the General Assembly, in what is surely the most authoritative statement of principle by the international community on a range of rule of law issues, neglected to speak directly to this point.