Perspectives | War Crimes

Could an amnesty for war crimes really work?

By - 28.09.2018

What is an amnesty and what would it mean for a post-war country?

In July, Kosovo’s media reported that seeking an agreement for granting amnesty for war crimes could be part of the EU-facilitated dialogue in Brussels between Kosovo and Serbia. Although Kosovo’s Office of the President denied that this topic was part of the negotiations, the news alone incited reactions from war survivors, the families of victims, and human rights activists and organizations, who opposed the idea of accepting such an agreement.

Families of victims addressed the state leaders saying that “they do not dare, in the name of their families, forgive Serbia for the crimes that they committed in Kosovo.” Furthermore, the families claimed that they would not allow such a thing to happen, pledging to oppose it through protests and petitions.

As a result of the dialogue process, a Law on Amnesty was approved in 2013. This law granted amnesty to people who had previously broken certain laws or acted against the constitutional order, and was part of the agreement for normalizing relations between the two countries, with the objective of integrating parallel structures in the north of Kosovo into Kosovo institutions.

However, amnesties for war crimes, crimes against humanity, genocide, enforced disappearance or other crimes that comprise grave violations of human rights cannot be granted as these crimes are punishable by international law.

Granting amnesty for war crimes would also go against the policies of the United Nations, an institution to which Kosovo aspires to join. The UN condemns the refusal of states to investigate, cooperate or prosecute perpetrators of war crimes and crimes against humanity.

In a report published in 2004, former UN Secretary General, Kofi Annan, stated that UN peace agreements can never include promises of granting amnesty for genocide, war crimes, crimes against humanity or any other grave violation of human rights. Moreover, UN policies highlight that when impunity has been previously granted in the name of peaceful agreements, they have often failed to achieve their objectives in practice.

Previously, the international community had been reluctant to get involved in cases such as granting amnesty for war crimes, as they were considered to be internal issues.

In the past, amnesties for war crimes have been used as a transitional justice tool in an attempt to end conflict, violence against the civil population and to achieve reconciliation, especially at a national level. South Africa is one of the countries whose victims were willing to accept such a form of amnesty. Although apartheid was considered as a crime against humanity, the victims of this regime believed that cooperating with the criminals was the only solution, and the only way to acknowledge the truth of what happened during the war.

In South Africa, partial and full amnesties were granted to the perpetrators who admitted their crimes through a Truth and Reconciliation Commission — established in 1995 — with the objective of rebuilding society after the conflict, based on the idea that forgiveness would contribute to these efforts.

This practice — which had earlier been applied elsewhere, including in Argentina and Chile — helped to expand the debate on amnesties, within the context of whether they violate international principles and law, as well as the efficiency of these efforts in achieving reconciliation. Critics emphasized that the fact that the victims forgave the perpetrators does not exculpate the latter, and as such they should still be prosecuted.

It was around this time, in the mid-’90s, that the wars in Yugoslavia and the genocide in Rwanda forced the international community to focus more on human rights. Previously, the international community has been reluctant in getting involved in cases such as granting amnesty for war crimes,  as they were considered to be internal issues, mainly due to the predominance of the concept of sovereignty in the international arena.

Amnesty for war crimes was also briefly considered as an option for ending the conflict in Kosovo during 1999. However, this option was ultimately ruled out, and the lawsuit filed against Slobodan Milosevic in May 1999 resulted in his compliance in withdrawing troops from Kosovo. This case is considered to be a precedent that peace can also be achieved by implementing justice, whereas before, the two concepts were generally considered to be mutually exclusive in the international arena.

Nevertheless, Kosovo’s process of transition from war to peace was overwhelmingly characterized by state-building and democratization efforts, whereas the grave violations of human rights that happened before and during the war have barely been addressed.

Against international law and victims’ rights

According to the Yale Law Journal, amnesty implies the prevention of the prosecution of perpetrators, as well as the elimination of their previous responsibility in the crime. Usually, amnesties are implemented for a specific period of time and with specified categories that benefit from it. They can take many forms, and be applied to many different crimes in different contexts.

But when it comes to war crimes, prevention of perpetrators of these crimes from facing criminal prosecution and trial goes against international law and the obligation of states to ensure the protection of human rights. It contributes to the creation of a culture of impunity, which consequently leaves space for these crimes to be repeated in the future by undermining law and order.

In addition to prohibiting amnesty for war crimes, genocide, crimes against humanity and other grave violations of human rights, international law also prohibits any form of amnesty that hampers the realization of the rights of victims for reparations and for knowing the truth about events in the conflict.

War crimes comprise serious crimes in international law, as they particularly violate international humanitarian law, and are defined in detail in the 1949 Geneva Convention, which obliges every state to bring the perpetrators of these crimes before justice.

Likewise, crimes against humanity are considered as serious crimes by the International Criminal Court (ICC) and so are punishable by law. According to the Rome Statute, which was adopted in 1998, they are crimes committed as a result of systematic attacks against a civil population.

As such, if states are unable or unwilling to prosecute these crimes, the ICC takes jurisdiction in doing so. Although Kosovo is not a signatory of the Rome Statute, through the agreements that it has signed with European Union, namely the Stabilization and Association Agreement (SAA), it recognizes the ICC’s jurisdiction, as well as the norms that stem from the Rome Statute.

Genocide and torture are also punishable by the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the applicability of which is guaranteed by Kosovo’s Constitution.

On the other hand, enforced disappearance, one of the crimes that was committed against the civil population during the war in Kosovo, comprises another severe violation of human rights.

The 2007 International Convention for the Protection of All Persons from Enforced Disappearance regulates this issue and obliges states to create legal systems that both prosecutes perpetrators and also seeks reparation and compensation for victims and their families. Enforced disappearances also violate the 1966 International Covenant on Civil and Political Rights, which again is ratified in Kosovo’s Constitution.

National reconciliation can only be achieved when victims have achieved justice.

Indeed, granting amnesty for war crimes goes against the whole principle of criminal responsibility, which is necessary as part of ensuring victims’ rights. Impunity for human rights violations comprises non-observance of human rights and liberties by the state, as well as a failure of the state to fulfil its obligation to effectively protect these rights and liberties.

Although not in the same context, Argentina’s example of prosecuting the perpetrators of crimes and grave violations of human rights that occurred in the war between 1976 and 1983 remains one of the best examples of how an effective legal system can influence the implementation of justice for war crimes.

In 2005, the Supreme Court of Argentina repealed two Amnesty Laws that had been approved by the country’s Congress in 1986 and 1987, and which had prevented the punishment of crimes committed by the military dictatorship. Once repealed, anyone who was considered to have potentially been involved in human rights violations during this period was ultimately subjected to trial.

What characterizes the case of Argentina is that the investigation and prosecution of war crimes was conducted by national courts, by judges, plaintiffs and prosecutors — citizens of Argentina — while the whole process was driven by the country’s judiciary and not by political authorities.

Argentina had also previously established a truth commission known as the National Commission on the Disappearance of Persons (CONADEP), which had a mission to research and gather facts about disappeared persons, of whom there were found to be up to 30,000. This commission is seen as one of the first commissions to have produced successful results, serving as an example for later commissions that were established elsewhere.

Argentinian society was included in the whole process through movements, campaigns and activism. Their efforts comprise one of the strongest examples of human rights activism in Latin America and further afield.

Nevertheless, the right to know the truth goes beyond victims and their relatives. It belongs to society as a whole. Reconciliation remains although the ultimate objective that post war societies strive to achieve. But national reconciliation can only be achieved when victims have achieved justice — and that means no amnesty for war criminals.

Feature image: Besnik Bajrami / K2.0.

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