Criminal Justice Ethics

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Peace vs. Justice: The Utility of Amnesties

Orlaith Minogue

To cite this article: Orlaith Minogue (2010) Peace vs. Justice: The Utility of Amnesties, Criminal
Justice Ethics, 29:3, 306-314, DOI: 10.1080/0731129X.2010.524042

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Criminal Justice Ethics
Vol. 29, No. 3, December 2010, 306 314

REVIEW ESSAY

Peace vs. Justice: The Utility of

Amnesties

Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge,
UK: Cambridge University Press, 2010), xx
376 pp.

ORLAITH MINOGUE*

An amnesty generally deserves to be respected or supported if it is crafted in good faith and in a

manner that promises to fulfil a state’s transitional justice obligations to the greatest extent possible
in the particular context while impairing them as little as possible.1

The debate about the role of amnes-
ties in conflict transformation and
resolution has evolved significantly
in recent years. This metamorphosis
can be attributed to various factors;
chief among them is the development
of both international human rights
law and international criminal law in
the post-Cold War era.
Necessary Evils: Amnesties and the
Search for Justice is a comprehen-
sive new study by Mark Freeman
on the use of amnesty in response to
mass atrocity. Throughout the first
part of the book, Freeman compe-
tently introduces a wide range of
issues concerning amnesty. He ex-
*Orlaith Minogue, who previously worked
in the International Secretariat (Geneva)
for Amnesty International, is currently a
research assistant at Queens University,
Belfast. Email: ominogue@gmail.com
pertly situates amnesty within a com-
plex framework of human rights and
international criminal law mechan-
isms, all the while persuasively culti-
vating his arguments in favor of
maintaining a role for amnesty as an
option of last resort in the termination
of violent conflict. In the final section
of the book Freeman advances the
study of amnesties by outlining an
original amnesty design methodology
with detailed guidelines on how to
maximize the legitimacy of amnesties
while minimizing their scope and
application.
The relationship between amnesty
and human rights advocacy origi-
nates in the 1960s and 1970s, when
newly formed international non-
governmental organizations (NGOs)
began to campaign in favor of am-
nesty for political prisoners.2 Toward
the end of the 1970s, and through-
out the following decade, military

ISSN 0731-129X print/ISSN 1937-5948 online

# 2010 John Jay College of Criminal Justice of The City University of New York
http://www.informaworld.com DOI: 10.1080/0731129X.2010.524042
 Peace vs. Justice: The Utility of Amnesties
dictators in Latin America rushed to
reward themselves for human rights
abuses with all-encompassing, self-
serving amnesties that rendered them
immune from prosecution despite
the transition to democracy.3 This
resulted in uproar and a growing
anti-amnesty sentiment among hu-
man rights advocates worldwide.
This ‘‘anti-impunity’’ movement ma-
tured in the subsequent decades,
evolving alongside the development
and strengthening of international
criminal law, culminating in the
adoption of the Rome Statute of the
International Criminal Court (ICC) in
July 1998.
International popular opinion
now stands in firm opposition to
the use of amnesty, and transitioning
societies are generally expected to
aggressively prosecute individuals
responsible for human rights viola-
tions. This expectation is framed in
terms of a state’s international legal
and moral obligations toward its
citizens. In short, the methods that a
state employs in the resolution of
Part I: Amnesty and Transitional Justice, International Law and
International Criminal Law
Such arguments challenge the pre-
conception that amnesty and transi-
tional justice are antithetical to one
another. Transitional justice refers to a
‘‘field of activity and inquiry focused
on how societies address legacies of
past human rights abuses, mass atro-
city, or other forms of severe social
trauma . . . in order to build a more
democratic, just, or peaceful future.’’4
Transitional justice incorporates a
variety of complementary strategies
for etching out a more peaceful future
while simultaneously addressing the
307
conflict are now considered a matter
of international concern.
However, in opposition to the ‘‘no
justice without peace’’ camp, some
argue in favor of the use of amnesties
as a peacemaking mechanism of last
resort. In Necessary Evils, Freeman
positions himself firmly within this
second camp, providing a convincing
argument as to the utility of amnesty
in conflict resolution. He accepts that
criminal prosecution may indeed be
the optimal way to ensure account-
ability for human rights violations.
However, Freeman argues that, prac-
tically speaking, conflict will not al-
ways end in decisive victory, and
prosecution will not always consti-
tute a viable option in post-conflict
society. Oftentimes, states will have
to accommodate opponents, includ-
ing former combatants, within the
reformed composition of the state.
Moreover, there may be no alterna-
tive for a state but to grant amnesty
as a precondition for the cessation of
hostility and a return to peace.
violence of the past. The field aims to
provide redress to victims of human
rights abuse while also fostering re-
conciliation within a damaged state.
Against the conventional wisdom,
Freeman argues that though the crim-
inal prosecution of human rights
violations is certainly within the pur-
view of transitional justice, the most
significant components of transitio-
nal justice are in fact nonprosecution
based. In support of this claim, he
highlights transitional justice methods
such as truth commissions, reparation
 Orlaith Minogue
programs, and institutional reforms,
all of which he considers to be per-
fectly compatible with the existence of
an amnesty agreement.
But Freeman goes beyond the
idea that amnesty and transitional
justice are merely compatible. He
recasts amnesty as an integral part
of the transitional justice ‘‘toolbox.’’
He maintains that amnesties can
function as an enabling mechanism
to induce those responsible for hu-
man rights violations into negotiation,
ultimately facilitating the restoration of
public security and the eventual
transition toward peaceful democ-
racy.
Freeman also provides an eye-
opening analysis of the relationship
between amnesty and international
law. He shows that treaty-based in-
ternational law is surprisingly unam-
biguous: there is not a single treaty
that, in any direct way, even so much
as discourages amnesty. The only
explicit treaty provision concerning
amnesty, contained within the second
Additional Protocol to the Geneva
Conventions, seemingly advocates
the use of amnesty ‘‘to encourage
gestures of reconciliation which can
contribute to re-establishing normal
relations in the life of a nation which
has been divided.’’5 This encourage-
ment however, has been subsequently
diluted by the accompanying commen-
tary of the International Committee of
the Red Cross (ICRC).6 The ICRC
claims that this provision was aimed
solely at wartime crimes of hostility
consistent with international huma-
nitarian law*a development that
Freeman finds difficult to reconcile
with the dominant usage of amnesty
by states [36].
Freeman then turns to non-
amnesty-specific treaty obligations
308
to determine whether other legal
duties prevent states from resorting
to amnesty agreements. Among these
obligations is the duty of states to
prosecute, the right of victims to a
remedy, and the obligations of states
to investigate human rights abuses.
Freeman explains that the duty to
prosecute should limit the scope of a
state’s right to grant amnesty, but an
examination of state practice sug-
gests that states fail to perceive this
obligation as a limit on their right to
grant amnesty, a right which they
draw from the concept of state sover-
eignty as embodied in the UN Char-
ter. Freeman’s treatment of the duty
to prosecute under international law
here is a little cursory, so the reader
may wish to look elsewhere for a
more in-depth analysis.7
The focus of Freeman’s discussion
of the non-amnesty-specific duties of
states under international law is the
duty of states to prevent and suppress
human rights violations. He argues
persuasively in favor of a comprehen-
sive approach to victims’ rights,
which also includes those potential
‘‘victims of tomorrow’’ were the ces-
sation of hostilities prevented by the
refusal to concede amnesty. The ten-
sion between the duty to prosecute
and the duty to protect demonstrates
the delicate balancing act that is re-
quired during conflict resolution. The
duty to prevent human rights-related
crimes is provided for in several
international legal instruments, in-
cluding the International Covenant
on Civil and Political Rights (ICCPR)
and the Geneva Conventions. To
highlight the failure of states to act
upon this duty, Freeman references
the nascent principle of ‘‘responsibil-
ity to protect’’ (R2P). The responsibility
to protect embodies the notion that
 Peace vs. Justice: The Utility of Amnesties
‘‘sovereign states have a responsibility
to protect their own citizens from
avoidable catastrophe*from mass
murder and rape, from starvation*
but that when they are unwilling or
unable to do so, that responsibility
must be borne by the broader com-
munity of states.’’8 In acknowledging
the low likelihood of states under-
taking R2P as a binding legal princi-
ple, Freeman laments that the very
same states that refuse to intervene in
internal conflicts, insist on criminal
prosecutions in their aftermath [117].
The embattled state is thus placed
under great pressure to come to a
peace agreement that would be con-
sidered internationally acceptable.
Following his examination of
treaty obligations relevant to human
rights law, Freeman then turns his
attention to the relevant suprana-
tional jurisprudence, the majority of
which denounces the use of amnes-
ties. Freeman is particularly scathing
in his review of decision making at
the supranational level. He accuses
various courts of an over reliance on
national jurisprudence and of failing
to adequately assess state practice in
this field.
Ultimately, after a thorough re-
view of the position of amnesty within
international law, Freeman disagrees
with commentators who assert that it
is no longer legal for states to imple-
ment amnesties that include the inter-
national crimes of genocide, crimes
against humanity, and war crimes. He
concludes that there does indeed
seem to be an emerging norm against
including international crimes in am-
nesty agreements, but that it remains
far from settled. This debate will no
doubt continue.
Necessary Evils goes on to provide
an accessible analysis of the provisions
309
of the Rome Statute pertaining to
amnesty and the interaction between
the International Criminal Court and
Uganda’s amnesty laws. The estab-
lishment of the ICC, ‘‘an institutional
embodiment of the anti-amnesty
norm,’’9 undoubtedly complicated the
legal position of amnesty. The Rome
Statute, which has been in force since
2002, grants the ICC jurisdiction over 111
States in the prosecution of genocide,
crimes against humanity, and war
crimes. There is not a single reference
to amnesty to be found in either the
Rome Statute or the Rules of Proce-
dure and Evidence.10 States present at
the Preparatory Commission for the
drafting of the Rome Statute engaged
in serious debate on the topic of
amnesties but ultimately left the issue
unresolved. The notable absence of a
provision concerning amnesty in the
Statute was a deliberate approach,
reflecting a ‘‘creative ambiguity’’ on
the part of the drafters, as agreement
on the issue was not possible.11
This ambiguity necessitates a clo-
ser examination of the Statute, which
Freeman provides, with particular
reference to articles concerning the
investigatory and prosecutorial pow-
ers of the Office of the Prosecutor
(OTP). Under Article 15 of the Statute,
the prosecutor may use his or her
proprio motu powers to identify a
‘‘situation’’ to be investigated.12 Un-
der the principle of complementarity,
such investigations are permitted only
when the state with original jurisdic-
tion is ‘‘unwilling or unable genuinely
to carry out the investigation or pro-
secution.’’13 Importantly, Article 53 of
the Statute grants the Prosecutor the
power to cease that investigation if he
or she concludes that prosecutions
would not serve ‘‘the interests of jus-
tice.’’14 What exactly constitute ‘‘the
 Orlaith Minogue
interests of justice’’ is left unelabo-
rated.
Freeman provides some insight
into the possible future practice of
the ICC in terms of this issue. He
concludes that the term ‘‘interests of
justice’’ must signify something
broader than criminal justice, as the
term is used to provide justification
for the avoidance of criminal investi-
gation by the prosecutor. In response
to the debate concerning the precise
meaning of the term ‘‘interests
of justice,’’ the OTP issued a re-
port refusing to speculate on ‘‘ab-
stract scenarios.’’ The report stated
that the concept was broader than
that of criminal justice in the narrow
sense, but was not so broad ‘‘as to
embrace all issues related to peace
and security.’’ Freeman describes Ar-
ticle 53 as ‘‘a guarantee of prosecu-
torial diplomacy’’ [83], skewering the
representation of the Office of the
Prosecutor as an apolitical organ
within the ICC. Furthermore, Freeman
takes the OTP’s silence on the ‘‘long
standing, general, and uncondi-
tional’’ [84] amnesty in Uganda to
mean that the OTP will likely not
oppose an amnesty covering the
crimes under the jurisdiction of the
ICC, provided that the amnesty law
does not apply to those against
whom the ICC decides to issues
arrest warrants.
These are important and timely
issues. The ICC is of limited capacity,
as evidenced in the relatively small
number of investigations that have
been undertaken in the 8 years of the
court’s active existence. Ideally,
the Office of the Prosecutor will be
prompt to recognize a legitimate na-
tional peace-making process, even in
the absence of criminal prosecutions.
Both the critical prosecutorial eye
310
and the court itself would be put to
better use in the investigation of
amnesties conceived with a broad,
sweeping stroke and a self-serving
hand. How the ICC will deal with
amnesty laws remains to be seen. In
the meantime, Freeman warns peace
makers that amnesty outcomes no
longer fall solely within the purview
of any individual state’s control, and
it would be prudent for concerned
state parties to assume an amnesty
will attract the critical scrutiny of the
ICC prosecutor [76].
Freeman concludes his overview
of the debate on amnesties with a
critical discussion of the current ap-
proach of the United Nations on this
topic. Freeman claims that the UN
position*that ‘‘the Organization
cannot endorse or condone amnesties
for genocide, crimes against human-
ity, war crimes or gross violations of
human rights, nor should it do any-
thing that might foster them’’15*
evolved out of the establishment of
the ICC. The refusal to engage in a
process that might lead to such an
amnesty heralds a ‘‘major rupture’’
with the organization’s own previous
position and practice, and also with
widespread state practice in this area
[91]. In an illuminating example of
how abruptly the UN attitude to-
ward amnesty agreements has chan-
ged, Freeman asserts that, in keeping
with new position, the UN would
today refuse to engage with a body
with the same mandate as the South
African Truth and Reconciliation
Commission (SATRC).
The SATRC was established to
‘‘enable South Africans to come to
terms with their past on a morally
accepted basis and to advance the
cause of reconciliation.’’16 SATRC
received widespread backing from
 Peace vs. Justice: The Utility of Amnesties
the international community, politi-
cally and also practically, in terms of
technical and financial assistance. It
consisted of three committees, includ-
ing, most controversially, a quasi-
judicial Amnesty Committee invested
with the power to grant amnesty to
individual applicants for crimes ‘‘as-
sociated with a political objective . . .
[committed] in the course of the
conflicts of the past.’’17 This amnesty
was predicated on the condition that
the applicants offered ‘‘a full disclo-
sure of all relevant facts.’’18 These
mandatory confessions were respon-
sible for bringing apartheid-era atro-
cities to the attention of the public.
Freeman draws on the example of
SATRC to highlight the potential of
legitimate, democratically implemen-
ted amnesties in facilitating the tran-
sition from violence to peace. Far
from the amnesia associated with
Part II: The Design of Amnesties
Having demonstrated the impor-
tance of amnesty as a peace-building
mechanism, Freeman proceeds in the
second section of Necessary Evils to
outline his own original amnesty-
design methodology. Here Freeman
attempts to reconcile the various
positions on amnesties within a fra-
mework that balances the goal of
ending impunity with the impera-
tives of a peaceful and secure transi-
tion process.
Amnesties will endure. It is on
this understanding that Freeman pro-
vides practical guidelines on the
desirable components of a principled
amnesty, constructed with the objec-
tive of narrowing ‘‘the odds for regret
and error’’ [112]. To minimize the use
of amnesty, Freeman recommends a
311
amnesty (a word which originates
from the Greek amnēstia, meaning
‘‘forgetfulness’’ or ‘‘to cast into ob-
livion’’), the South African experi-
ence demonstrates the compatibility
of amnesty with truth telling. Indeed,
the SATRC was internationally re-
garded as both legitimate and suc-
cessful, despite the fact that it
included amnesty for gross human
rights violations.
Freeman regrets the inflexibility
of the new hardline UN approach
toward amnesties, which he believes
may seriously undermine the UN’s
role as a mediator in the resolution of
violent conflict. Helpfully, he high-
lights several alternative positions
available to the UN that may soften
its stance while still demonstrating a
clear preference for prosecutions for
international crimes.
procedural ‘‘last recourse’’ threshold,
based upon an assessment of the
circumstances precipitating the am-
nesty agreement [112]. He acknowl-
edge that there will be occasions on
which an amnesty excluding the
international crimes of genocide, crimes
against humanity and war crimes will
not be achievable. Freeman argues that
such broad amnesties can still be
morally defended when the threat
of prosecution would serve to pro-
long the conflict, resulting in loss of
life.
It is to be hoped that such amnes-
ties will be rare. Ideally, amnesty
should come into play only when
all other leniency options*such as
reduced and alternative sentencing
schemes*have been exhausted.
 Orlaith Minogue
Once a situation has arisen in which
an amnesty is the only remaining
option in the transition from violence
to peace, an intricate process will
need to be undertaken to ensure
that the amnesty has as much sup-
port and credibility, both domesti-
cally and internationally, as possible.
Of primary concern for Freeman in
the drafting of amnesty laws is the
level of precision applied to the docu-
ment. He recommends the inclusion
of the explicit objectives of the am-
nesty in the preamble, and advocates
that the law state clearly which crimes
are eligible for amnesty. Additionally,
details of precisely who may avail
of the amnesty, and under what pre-
conditions they may do so, must be
included so as to avoid uncertainty.
Freeman also outlines prerequi-
sites for the granting of amnesty.
Some of these suggestions are famil-
iar, for example, the requirement for
individual applications by a certain
date, granted on the condition that a
full disclosure of crimes be presented
before a public hearing. These ele-
ments were included in the previously
discussed SATRC. Freeman’s other
suggestions for increasing the legiti-
macy and effectiveness of an amnesty
include different requirements such
as an apology, potential relocation,
and supervision, as well as the re-
quirement of participation in a tradi-
tion-based justice process, such as the
famous gacaca trials in Rwanda.
Freeman stipulates that there
must also be conditions for retaining
amnesty after it is granted. Non-
recidivism is at the top of this list.
Freeman suggests that the inclusion
of such a condition may allay fears
among the general public that the
amnesty could contribute to or institute
a culture of impunity. Furthermore,
312
Freeman recommends the establish-
ment of a supervisory body to moni-
tor and enforce the conditions of the
amnesty. He advises that such a body
operate independently from the gov-
ernment and be imbued with a broad
range of powers, such as those often
allocated to truth commissions.
It is evident that Freeman seeks to
maximize the positive potential of an
amnesty law to restore peace, while
retaining a potential recourse to jus-
tice for victims in the future. Freeman
recommends minimal legal entrench-
ment of amnesty laws, in the hope of
facilitating an eventual repeal, annul-
ment or general weakening of the
amnesty law in subsequent more
politically stable years. A realist to
the end, Freeman does acknowledge
that a dismantling of an amnesty
may take a generation, if it occurs at
all.
In the preface to Necessary Evils,
Freeman conveys his desire for his
work to reach an audience beyond the
legal profession. I have no doubt that
this will be the case. This book will
prove to be of vital importance to
scholars and practitioners in the field
of transitional justice, human rights,
and international criminal law. Free-
man demonstrates both expert knowl-
edge and indefatigable passion for his
‘‘bleak’’ subject matter.
To be sure, one book cannot be all
things to all people. A reader search-
ing for a comprehensive analytical
survey of the number and range of
national amnesty policies in post-
conflict situations will have to look
elsewhere.19 No doubt, Freeman’s
thesis will attract some criticism.
Those who contend that amnesties
undercut the rule of law and always
ultimately fail to sustain lasting peace
may not be dissuaded. Many will
 Peace vs. Justice: The Utility of Amnesties
disagree with his unapologetic prior-
itization of public security over crim-
inal prosecutions.
Despite this inevitable dissent, it
would be next to impossible to read
Notes
1 Mark Freeman, Necessary Evils: Amnesties
and the Search for Justice (Cambridge, UK:
Cambridge University Press, 2010), 71.
[Bracketed page numbers in the text refer
to this volume.]
2 Hence the name given to the major NGO
founded in 1961 in response to a report
on two Portuguese students sentenced to
prison for having raised a glass to liberty*
Amnesty International (AI). However, with
the illegitimate blanket amnesties imple-
mented by military dictators throughout
Latin America in the subsequent decades,
AI became the first influential human rights
NGO to articulate an anti-amnesty position
favoring criminal prosecution, both domes-
tic and international, as the preferred me-
chanism for addressing past atrocities in
post-conflict states. The organization has
continued to be among the most vocal critics
of national amnesty policies, including that
of the South African Truth and Reconcilia-
tion Commission. See Max Pensky, ‘‘Am-
nesty on Trial: Impunity, Accountability, and
the Norms of International Law,’’ Ethics and
Global Politics 1, no. 1 2 (2008): 1 40.
3 An example of this is the Chilean Decree
Law 2.191 (April 18, 1978). Decreto Ley N8
2191 de 1978, concede amnistı´a a las personas
que indica por los delitos que señala, available
(in Spanish) at: http://www.archivochile.
com/Poder_Dominante/pod_publi_parl/P
Dparlamento0005.pdf
4 The Encyclopedia of Genocide and Crimes
against Humanity (New York: Macmillan
Reference USA, 2004), 3:1045.
5 Henckaerts and Oswald-Beck, Customary
International Law, Vol. 1, Rules (Cambridge
University Press and the International Com-
mittee of the Red Cross, 2005), Rule 159.
6 The International Committee of the Red
Cross, Commentary to the Protocol Addi-
tional to the Geneva Conventions of 12
313
this book and not feel better informed.
This book has something to offer any-
one with an interest in the field, regard-
less of the reader’s pre-existing level of
knowledge concerning amnesties.20
August 1949, and relating to the Protection
of Victims of Non-International Armed
Conflicts (Protocol II), 8 June 1977, available
at: http://www.icrc.org/ihl.nsf/WebPrint/
475-760010-COM?OpenDocument
7 For a comprehensive account of this duty,
see Diane F. Orentlicher, ‘‘Settling Ac-
counts: The Duty to Prosecute Human
Rights Violations of a Prior Regime,’’ Yale
Law Journal 100 (1990 91): 2537 615.
8 International Commission on Interven-
tion and State Sovereignty, The Responsibil-
ity to Protect: Report of the International
Commission on Intervention and State Sover-
eignty (Ottawa: International Development
Research Centre, 2001), available at: http://
ibcperu.org/doc/isis/9703.pdf
9 Pensky, ‘‘Amnesty on Trial,’’ 12.
10 The Rules of Procedure and Evidence
are an instrument for the application of the
Rome Statute and are available at: http://
www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-
A3F3-4A3C-B9A7-B3E8B115E886/140164/
Rules_of_procedure_and_Evidence_English.
pdf
11 Philippe Hirsch, chair of the Prepara-
tory Commission, who went on to become
the first president of the ICC, offered this
description in an interview with Michael
Scharf. Scharf, ‘‘The Amnesty Exception to
the Jurisdiction of the International Crim-
inal Court,’’ Cornell International Law Journal
32 (1999): 522.
12 The proprio motu powers of the Prose-
cutor allow him or her to proceed with an
investigation at his or her own initiative.
Proprio motu means ‘by one’s own motion’.
13 Article 17(1) (a) of the Rome Statute of
the International Criminal Court, available
at: http://www.icc-cpi.int/NR/rdonlyres/
EA9AEFF7-5752-4F84-BE94-0A655EB30E16/
0/Rome_Statute_English.pdf
 Orlaith Minogue
14 This decision may be subject to review
by the Pre-Trial Chamber of the Court.
15 ‘‘Timor-Leste: UN to Boycott Truth Pa-
nel Unless It Bars Amnesty for Gross
Abuses,’’ UN News Centre, July 26, 2007,
quoted in Mark Freeman, ‘‘Amnesties and
DDR Programs,’’ in Disarming the Past:
Transitional Justice and Ex-combatants, ed.
Ana Cutter Patel, Pablo de Greiff, and
Lars Waldorf (New York: Social Science
Research Council, 2010), 41.
16 Dullah Omar, former Minister of Justice
of South Africa, cited on the official Truth
and Reconciliation Commission website,
http://www.justice.gov.za/trc/
17 Promotion of National Unity and Re-
conciliation Act, 1995, Act 95 34 (South
Africa, July 26, 1995), available at: http://
www.fas.org/irp/world/rsa/act95_034.htm
314
18 Ibid.
19 Highly recommended is Louise Mallinder,
Amnesty, Human Rights and Political Transi-
tions: Bridging the Peace and Justice Divide
(Oxford, UK: Hart Publishing, 2008). The
study covers an extremely wide range of
amnesties over the last 50 years.
20 Necessary Evils also has three informa-
tive appendices. The first contains a helpful
summary of the Guidelines for Effective
Amnesty Design. The second contains ex-
tracts from international legal instruments
relevant to amnesties. The third appendix
contains selected excerpts from jurispru-
dence on amnesties, specifically three cases
pertaining to amnesties in the contexts of
South Africa, Chile, and Sierra Leone.