The vast majority of peace agreements today contain some crucial elements related to governance and security as well as social and economic issues, and justice and reconciliation. The last area is particularly sensitive, as justice and reconciliation are likely to involve not only significant political, legal and strategic dimensions (who will be prosecuted or receive an amnesty), but also highly emotional issues around the interpretation of the rights and wrongs of the conflict and the responsibilities associated with it. For that reason, of all the hot issues in peace processes, the amnesty issue is often the hottest.
Amnesties can have a destructive effect when they consolidate impunity and promote violence. They can be constructive when they facilitate a peace accord, encourage fighters to abandon their armed struggle, and encourage dictators to give up power and restore the rule of law.
With the creation of the International Criminal Court (ICC) and the jurisprudence of other international criminal Tribunals, there is a body of opinion to support the existence of a customary prohibition on amnesties for international crimes. However, other legal cases from domestic and hybrid courts together with state practice on amnesties does not reflect an established, explicit and categorical customary prohibition of amnesties for international crimes. Within International Human Rights Law (IHRL), there are differences in the approach of the regional human rights courts on whether there is an obligation to prosecute gross violations of human rights.
It is essential that amnesties are perceived as legitimate by the population. Hence the need to establish objective and transparent criteria for amnesties and to impose conditions on those who benefit from them. These may include the need to participate in reparation and DDR (Disarmament, Demobilisation and Reintegration) programmes, as well as to reveal crimes they have committed or witnessed.
Numerous states have developed pragmatic solutions when setting out conditional amnesties. In Colombia, for example, a law passed on the 28 December 2016 granted amnesty to FARC fighters, state officials and civilians “condemned, sentenced or accused of reprehensible acts [. . .] in direct or indirect relation with the armed conflict.” However, perpetrators of crimes against humanity, massacres and/or rapes had to submit to a special judicial process. This could condemn them to alternatives to jail sentences (such as participating in reparation or de-mining programmes) provided they told the whole truth about the acts they were accused of carrying out. In South Africa, criminals who confessed their political crimes, including serious human rights violations, in front of the Truth and Reconciliation Commission were granted amnesty. In some regions of Niger, communities propose to reintegrate ex-Boko Haram members provided they publicly ask for forgiveness and take an oath on the Koran to give up violence.
It is generally better to individualise an amnesty process to strengthen its credibility, legitimacy and acceptance. When possible, it is recommended that the amnesty is linked to compensation or reparation for the victims so they – and, beyond them, the whole society – do not get the impression that the aggressor has been rewarded while those affected have been forgotten.