The joint statement issued late last week in Geneva by the United States, the European Union, Russia and Ukraine includes the following:
Amnesty will be granted to protesters and to those who have left buildings and other public places and surrendered weapons, with the exception of those found guilty of capital crimes.
There is no mention of international crimes. The statement seems to be at odds with the position taken by the United Nations Secretary-General that amnesty for international crimes cannot be part of negotiations for a peace agreement to the extent that international crimes are concerned.
The final phrase is a legal curiosity, in that it excludes amnesty to those 'found guilty of capital crimes'.
The statement provides some confirmation that the statement contemplates more than trivial or insignificant offences associated with occupying building. The idea of finding people guilty suggests that as a preliminary they will be tried , and this seems incompatible with the notion of amnesty, which would normally be raised as an exception to jurisdiction at the start of a trial. Moreover, 'capital crimes' refers to crimes subject to the death penalty. But capital punishment has been abolished in Ukraine. Ukraine is a Party to Protocol No. 13 of the European Convention on Human Rights by which condemnation to the death penalty is prohibited in all circumstances. In other words, the possibility that someone could be found guilty of a capital crime in Ukraine is ruled out by Ukraine’s own treaty obligations. Genocide, crimes against humanity and war crimes are not 'capital crimes' in Ukraine. What on earth did the the EU – all EU members are parties to Protocol No. 13 – think they meant by the phrase ‘found guilty of capital crimes’? Is this just proof of the fact that diplomats will sign almost anything as long as they can get agreement?
This Friday in Geneva, the Centre for Humanitarian Dialogue and the Transitional Justice Institute will be presenting the Belfast Guidelines on Amnesty and Accountability to various stakeholders, experts, diplomats and officials in the city. The Belfast Guidelines present a nuanced and sophisticated approach to the issue of post-conflict amnesty and amnesty as a tool to peacemaking. They are about the balancing of competing obligations. They resist the extreme position advocated in some quarters by which amnesty for international crimes is said to be prohibited by international law.
Last week’s four-party statement on Ukraine is further evidence of the abundant practice indicating that there is no prohibition under international law of amnesty, even for genocide, crimes against humanity and war crimes.