Joris van Wijk
16 June 2011
opinion
Over the past decades the idea that serious perpetrators of international crimes – genocide, crimes against humanity and war crimes – can be amnestied has been severely challenged.
The United Nations, scholars and international NGOs have taken a firm position opposing the granting of amnesties. The consequences of this shifting position are very real, especially when the Prosecutor’s Office of the International Criminal Court (ICC) has issued arrest warrants.
No matter if warring parties are willing to negotiate a peace deal, and no matter if local victims voice in various surveys that they
are willing to trade justice for peace, once the prosecutor has issued a warrant for arrest, there is no turning back. Take Uganda as an example. After two years of serious negotiations between the Ugandan government and the rebels of the Lord’s Resistance Army (LRA), LRA leader Joseph Kony in 2008 considered making use of the government’s offer for amnesty. He however wanted existing ICC arrest warrants against the LRA leadership lifted before demobilising. The Chief Prosecutor of the ICC refused to meet the rebels’ demands and stated that “arrest warrants issued by the court (…) remain in effect and have to be executed.” Currently, Kony is still ‘in the bush’.
Why do so many take this rigid position to never, ever, under any circumstances grant amnesty anymore? Most of the arguments against granting amnesty are pragmatic in nature. It is argued that amnesties lead to vigilante justice, a culture of impunity, or frustrate sustainable peace.
And indeed, there are quite some negative experiences on the African continent with amnesties. Fighting for example restarted after the amnesty deal that was part of the 1999 Lome Peace Agreement in Sierra Leone. The 1991 failed Angolan amnesty deal is also often referred to.
However, the past has also learned that fighting does not necessarily restart after amnesties. One could think of the 1992 amnesty in Mozambique or the 2002 amnesty in Angola. Disentangling why fighting sometimes resumes after an amnesty and sometimes not is far from easy. Finding out if any of the other presumed negative effects such as vigilante justice or a promoted culture of impunity exist after an amnesty is even more difficult. Sound statistics are not available and clear definitions are lacking.
And when indicators of the assumed negative effects are found – for example a high level of crime in a post-amnesty society – it is practically impossible to establish a causal relation between these effects and the granting of amnesty. There might be many other factors that cause the effects. All we know is that the outcome of amnesties are sometimes quite positive and sometimes rather negative.
This leads me to conclude that the most often used pragmatic arguments against granting amnesty do not indisputably hold true. Until future research leads to accurate and convincing factual information that indeed amnesties in the majority of cases lead to vigilante justice, new perpetrators or resumed fighting, these pragmatic arguments are not more than theoretical assumptions. And I would argue that theoretical assumptions alone do not suffice to under all circumstances repudiate the option to grant amnesties. In the context of war and tyranny one should not rigorously exclude a potential solution to stall fighting on the basis of unfounded theory.
What is left is that we – the ‘international community’ – might still be so much shocked by the gravity of certain acts committed and therefore demand that criminal prosecution takes place. This is a normative and dogmatic argument. The fundamental question we then need to answer, is if this dogmatic line of argumentation is sufficient to always take the inflexible and rigid position that perpetrators of international crimes should never be granted amnesty?
Joris van Wijk is assistant professor in Criminology at VU University Amsterdam. This article is a summary of chapter 15 in the upcoming book “Victimological approaches to international crimes; with a focus on Africa”. Letschert, R., Haveman, R., De Brouwer, A., & Pemberton, A.)Publisher: Intersentia, Antwerp
AllAfrica – All the Time
More here:
Africa: Should We Say ‘Never’ to Amnesty?