Transitional Justice and the Norms
of International Law
by William Schabas*
For presentation to the Annual meeting of theJapanese Society of International Law,
Kwansei Gakuin University, 8 October 2011

The term ‘transitional justice’ appears to have been coined by American scholars in theearly 1990s.1 Two seminal conferences held at the time used the term ‘transition’ andframed the evolving discussion: in 1991, ‘Political Justice and Transition to the Rule of
Law in East Central Europe’, under the auspices of the University of Chicago and theCentral European University in Prague, and in 1992, ‘Justice in Times of Transition’, inSalzburg. These were primarily attempts to apply the experience of the Latin Americantransitions from dictatorship of the 1980s to the political transformations in Central andEastern Europe after the fall of the Berlin wall. This field of ‘transitional justice’ wasconsidered to be a component of the wave of democratization that seemed to affect many
regions of the world at the time. Other expressions like ‘rule of law’ and ‘post-conflictjustice’ were also employed in the same context.
At the time, ‘transitional justice’ was used to describe a range of initiatives suchas the nascent truth commissions in Chile, El Salvador and South Africa, and the purging
or lustration of former officials in eastern European states. These were essentiallynational initiatives although in some cases, such as the Salvadorean truth commission, theUnited Nations was involved. These developments were studied from the standpoint ofcomparative law and practice rather than from that of international law. There was asense that these developments were desirable, but little suggestion that they were*1

OC MRIA, Professor of international law, Middlesex University, London.
Neil Kritz, ed., Transitional Justice, How Emerging Democracies Reckon with Former Regimes,
Washington: United States Institute of Peace, 1995; A. James McAdams, ed., Transitional Justiceand the Rule of Law in New Democracies, Notre Dame and London: University of Notre Dame
Press, 1997; Ruti G. Teitel, Transitional Justice, New York: Oxford University Press, 2000; M.
Cherif Bassiouni, ed., Post-Conflict Justice, Ardsley, NY: Transnational Publishers, 2002; Naomi
Roht-Arriaza and Javier Mariezcurrena, eds, Transitional Justice in the Twenty-First Century:
Beyond Truth versus Justice, New York: Cambridge University Press, 2006.

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Page 2mandated by international legal norms. The first major study on the subject of transitional
justice, published in 1995, examined ‘the relationship between justice and the prospects
for a democratic transition’.2 It gave detailed consideration to, in order, commissions ofinquiry, criminal sanctions, non-criminal sanctions, and treatment and compensation of
victims. The chapter on criminal sanctions did not even consider the subject ofinternational tribunals.
In parallel to the transitional justice phenomenon of the early 1990s, international
criminal prosecution began to revive. It had not previously been a realistic option, anddoes not seem to have been seriously considered either for Latin America in the 1980s orCentral and Eastern Europe in the early 1990s. International criminal prosecution had laindormant since the military tribunals at Nuremberg and Tokyo of the 1940s. The Security
Council turned to international justice in 1993 when it created the ad hoc tribunal for theformer Yugoslavia and, a year later, the companion body for Rwanda. The proposedinternational criminal court seemed plausible, and much constructive work had been
conducted within the International Law Commission, but most believed that its
attainment was far in the future. Though they were watched with interest by theorists oftransitional justice, the role of international tribunals in the field of transitional justice inthese early days was not significant.
Both ‘transitional justice’ and international criminal prosecution might have been
discussed together at the time under two other rubrics, ‘accountability’ and ‘impunity’.
These concepts owe their salience to international human rights law. The most visible
manifestations appear in reports by experts like Louis Joinet3 and Theo van Boven4 of theUnited Nations Sub-Commission on Prevention of Discrimination and Protection of
Minorities. There were also important initiatives concerning the rights of victims at theUnited Nations quinquennial conferences on crime prevention and criminal justice.
Human rights NGOs whose mandates were anchored in international norms shifted their
2
3

4

Neil Kritz, ibid.
Question of the impunity of perpetrators of human rights violations (civil and political), Revised
final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, UN Doc.
E/CN.4/Sub.2/1997/20/Rev.1
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, UN Doc. A/RES/60/147.

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Page 3

focus from one that was essentially devoted to the rights of the defendant and of theprotection of detainees in the criminal justice process to one that viewed criminal
prosecution as a necessary means of enforcing human rights.
In 2004, the Secretary-General presented a report to the Security Council entitled‘The Rule of Law and Transitional Justice in Post-Conflict Societies’.5 According to theSecretary-General,
The notion of transitional justice … comprises the full range of processes and mechanisms associated witha society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensureaccountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial
mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions,
reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.6

In the 2004 report, the Secretary-General also considered the term ‘rule of law’,
explaining it was a principle of governance in which all persons, institutions and entities,
public and private, including the State itself, are accountable to laws that are publicly
promulgated, equally enforced and independently adjudicated, and which are consistent
with international human rights norms and standards’.7 He also defined ‘justice’, saying it
was ‘an ideal of accountability and fairness in the protection and vindication of rights andthe prevention and punishment of wrongs. Justice implies regard for the rights of theaccused, for the interests of victims and for the well-being of society at large.’8 Probably
the star of ‘transitional justice’ is now waning in the discourse of the United Nations infavour of the cognate concept of ‘rule of law’. Since 2009, the Secretary-General has
produced an annual report on ‘strengthening and coordinating United Nations rule of law
activities’ within which ‘transitional justice’ has only a rather secondary role, althoughperhaps this is only a terminological issue.9

5
6
7

8
9

UN Doc. S/2004/616.
Ibid., para. 8.
‘The Rule of Law and Transitional Justice in Post-Conflict Societies’, UN Doc. S/2004/616, para.
6.
Ibid., para. 7.
‘Strengthening and coordinating United Nations rule of law activities, Report of the SecretaryGeneral’, UN Doc. A/65/318, paras. 53-55.

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Page 4

Transitional justice initiatives are an important component of the work of suchbodies as the United Nations Development Programme, 10 the various peacekeeping
missions and the field presences of the Office of the High Commissioner for Human
Rights.11 The menu of options can be divided into judicial and non-judicial approaches.
This is important because of compelling arguments that trial and punishment of
perpetrators is a fundamental right of victims, dictated by human rights norms that are set
out in treaties or derived from custom. Before the international human rights tribunals,
this is known as the ‘procedural obligation’ associated with the protection of the right tolife and the prohibition of torture and cruel, inhuman or degrading treatment or
punishment.12 It may have certain corollaries, such as the claim that amnesty is prohibited
as a matter of international law, although this is probably an exaggeration.
Transitional justice trials almost invariably depend upon international law to agreater or lesser degree. The most celebrated are those of the international criminal
tribunals. At the national level, only a relatively small number of trials are premised upon
universal jurisdiction. Such trials tend to take place precisely because no domestictransitional justice is underway. Much more important are post-conflict trials by ordinaryor special courts established pursuant to domestic legislation, often within international
participation at the level of personnel and funding, and frequently dependent upon
substantive international law as a response to arguments about the principle of legality
and statutory limitation.
Truth and reconciliation commissions and similar inquiry bodies are at the heartof the non-judicial side of transitional justice. 13 They are frequently presented as analternative to judicial mechanisms although in some cases they have worked alongsidecriminal prosecution. Typically, there is much international involvement in terms of
10

11

12

13

‘Global Programme on Strengthening the rule of law in Conflict and Post-Conflict Situations,
Annual Report 2010’, New York: United Nations Development Programme, 2011, pp. 42-43.
‘Study by the Office of the United Nations High Commissioner for Human Rights on humanrights and transitional justice activities undertaken by the human rights components of the United
Nations system’, UN Doc. E/CN.4/2006/93; ‘Analytical study on human rights and transitional
justice’, UN Doc. A/HRC/12/18.
Šilih v. Slovenia, no. 71463/01 [GC], 9 April 2009, para. 153; Ergi v. Turkey, 28 July 1998, para.
82, Reports 1998-IV; Mastromatteo v. Italy [GC], no. 37703/97, para. 89, ECHR 2002-VIII.
On truth commissions, see generally: Priscilla Hayner, Unspeakable Truths: Transitional Justiceand the Challenge of Truth Commissions, London: Routledge, 2010.

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Page 5personnel and funding. The mandates of such commissions are often defined in terms ofinternational norms drawn from the law of human rights or international criminal law.
Transitional justice may also involved customary institutions, such as the gacaca courts
which were revived in Rwanda in order to deal with overwhelming numbers of genocide
prosecutions.14 Reparations are also considered an important component of transitional
justice. However, because most transitional justice initiatives take place in poor countries
where resources are limited, and because donors will not as a general rule contribute to a
reparations programme, the experience in this area is limited.
Most transitional justice activities are conducted in a cooperative spirit between
the post-conflict state and various international actors such as the United Nations andcertain regional organizations. Nevertheless there is the potential for a degree of tension,
where states feel that their sovereignty may be threatened by international initiatives.
Attempts to prosecute international crimes outside the territorial jurisdiction, by means ofinternational tribunals or universal jurisdiction, may provoke difficulty and resentment, asshown by the recent debates within the United Nations General Assembly at theinstigation of the African Union.15 The question of immunities may also be relevant when
universal jurisdiction is employed, as the Pinochet and Yerodia cases demonstrate. There
are also challenges with respect to mutual legal assistance. Third states may refuse tocooperate with the territorial state where extradition is requested because of perceived
inadequacies in the national justice framework.
Possibly the greatest challenge is posed by the establishment of the International
Criminal Court. The relationship between the Court and transitional justice mechanisms
at the national level was left unclear at the Rome Conference, probably because
consensus on the subject would have been difficult if not impossible. Since the Court
became operational, the Office of the Prosecutor has advanced certain theories about its
own attitude to national accountability mechanisms. As a consequence, the Court may
now intervene in national transitional justice processes, upsetting approaches that have

14

15Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda,,
Cambridge: Cambridge University Press, 2011.
‘The scope and application of the principle of universal jurisdiction, Report of the SecretaryGeneral prepared on the basis of comments and observations of Governments’, UN Doc. A/65/181.

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Page 6been carefully negotiated during exceptionally delicate peace processes and post-conflict
periods.

Sources of international law

The administration of justice would traditionally have been thought of as
quintessentially within the scope of national jurisdiction, a matter that flowed fromsovereignty and that was essentially of no concern to international law. What a State
chose to do with persons who perpetrated offences within its own borders was a matter ofconcern only to itself. To the extent that there was any role for international law, thisconcerned conflicts over the extraterritorial exercise of criminal law jurisdiction. 16
International law also encroached upon the territory of States by prohibiting the exerciseof criminal law with respect to heads of state and other beneficiaries of immunities
according to legal norms that remain essentially unchanged today.17 Certain crimes wererecognized by customary international law or by treaty as being ‘international’ in nature,something that entitled the exercise of universal jurisdiction.
Over the course of the twentieth century, international law came to recognize theinterest of third states and of the international community as a whole in the administrationof criminal justice concerning crimes associated, in a general sense, with the protection ofhuman dignity: genocide, crimes against humanity, war crimes and the crime ofaggression. There were several justifications for this development, including a duty owed
to the victims of atrocities pursuant to international law. Prosecution of such crimes was
also defended as being fundamentally retributive in nature. Neither of these is particularly
close to the modern notion of transitional justice, which tends to view prosecution from autilitarian perspective. Indeed, in its early manifestation, advocates of international
prosecution tempered their thirst for vengeance out of concern that too much justicemight destabilize post-war regimes. For example, the Treaty of Versailles provided for an

16
17

S.S. Lotus (France v. Turkey), 1927 PCIJ (ser. A) No. 10 (Sept. 7).
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ
Reports 2000, p. 3.

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Page 7

internationalized prosecution scheme to deal with German war criminals.18 The victorious
allies virtually abandoned the entire project out of concern that systematic prosecution of
the German leadership might so weaken the government as to leave it exposed to
revolutionary change. 19 Similar concerns led to gradual abandonment of war crimes
prosecutions following the Second World War.
In his 2010 Guidance Note on transitional justice, the Secretary-Generalattempted to address the relevant international law sources:

The normative foundation for the work of the UN in advancing transitional justice is the Charter of theUnited Nations, along with four of the pillars of the modern international legal system: international humanrights law, international humanitarian law, international criminal law, and international refugee law.
Specifically, various UN instruments enshrine rights and duties relative to the right to justice, the right totruth, the right to reparations, and the guarantees of non-recurrence of violations (duty of prevention). In
addition, treaty bodies and court jurisprudence, as well as a number of declarations, principles, andguidelines have been instrumental in ensuring the implementation of treaty obligations. To comply withthese international legal obligations, transitional justice processes should seek to ensure that States
undertake investigations and prosecutions of gross violations of human rights and serious violations ofinternational humanitarian law, including sexual violence. Moreover, they should ensure the right ofvictims to reparations, the right of victims and societies to know the truth about violations, and guarantees
of non-recurrence of violations, in accordance with international law.20

The involvement of the United Nations Security Council in transitional justiceinitiatives provides confirmation that one source of legal norms in this area is the Charterof the United Nations, and in particular Chapter VII. The first of the modern international
criminal courts, the International Criminal Tribunal for the former Yugoslavia, wasestablished as the conflict raged and long before it was at all realistic to speak of‘transition’. When it decided to establish the International Criminal Tribunal, after notingthat the violation of international humanitarian law constituted a threat to international
peace and security, the Council said it was ‘[c]onvinced that in the particular
circumstances of the former Yugoslavia the establishment of an international tribunal

18

19

20

Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of Versailles’),(1919) TS 4, arts. 228-230.
See: James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War
Criminals of the First World War, Westport, CT: Greenwood Press, 1982; Gerd Hankel, Die
Leipziger Prozesse, Hamburg: Hamburger Edition, 2003.
‘Guidance Note of the Secretary-General, United Nations Approach to Transitional Justice’,
March
2010,
pp.
3-4
(references
omitted),availableat
http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf.

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Page 8

would enable this aim to be achieved and would contribute to the restoration andmaintenance of peace’. 21 Adopting the statute proposed by the Secretary-General, theCouncil repeated these words (adding only that it was undertaken ‘as an ad hoc measure’),and said it ‘believ[ed] that the establishment of an international tribunal and theprosecution of persons responsible for the above-mentioned violations of international
humanitarian law will contribute to ensuring that such violations are halted’.22 Eighteenmonths later, when the International Criminal Tribunal for Rwanda was established,similar language was employed in the preamble to the resolution, but with the addition of
the following: ‘Stressing also the need for international cooperation to strengthen the
courts and judicial system of Rwanda, having regard in particular to the necessity for
those courts to deal with large numbers of suspects.’23 Thus, the legal justification for theestablishment of these tribunals by the Security Council included some recognition thatan objective of the mechanisms was to prevent a repetition of the crimes, to restore peace,
and to assist in rebuilding the national justice system. At least partially, the ad hoc
tribunals were placed within a paradigm of transitional justice. Though at the time many
international lawyers would have questioned the authority of the Security Council tointervene in this way, there is today little if any controversy about the point.
Since the early 1990s, the Security Council has established two other international
criminal tribunals, for Sierra Leone and Lebanon. Both were created with the cooperationof the States concerned and are therefore perhaps less significant in terms of precedents
identifying the scope of the powers of the Security Council under the Charter of theUnited Nations. More relevant is the Council’s use of article 13(b) of the Rome Statute of
the International Criminal Court. It has now triggered the jurisdiction of the Court twice,first with respect to the Situation in Darfur since 1 July 2002 and second for the Situationin Libya from 15 February 2010. The Darfur resolution noted ‘regional efforts in the fightagainst impunity’ and encouraged the Court, ‘as appropriate and in accordance with theRome Statute, to support international cooperation with domestic efforts to promote the

21
22
23

UN Doc. S/RES/808 (1993), PP 9.
UN Doc. S/RES/827 (1993), PP 7.
UN Doc. S/RES/955 (1994), PP 9.

Transitional Justice / Japanese Society of International Law / Schabas

Page 9rule of law, protect human rights and combat impunity in Darfur’.24 The Libya resolution
did not contain references that might be understood as reflecting a transitional justiceperspective.25
The Security Council has noted the significance of transitional justice on otheroccasions. Following its discussion of the Secretary-General’s 2004 report on the Rule of
Law and transitional justice,26 the Council produced a Presidential Statement.

The Security Council emphasizes that ending the climate of impunity is essential in a conflict andpost-conflict society’s efforts to come to terms with past abuses, and in preventing future abuses. The
Council draws attention to the full range of transitional justice mechanisms that should be considered,including national, international and ‘mixed’ criminal tribunals, truth and reconciliation commissions, andunderlines that those mechanisms should concentrate not only on individual responsibility for serious
crimes, but also on the need to seek peace, truth and national reconciliation. The Council welcomes thereport’s balanced appraisal of the lessons to be learned from the experience of the ad hoc international
criminal tribunals and ‘mixed’ tribunals.
The Security Council recalls that justice and rule of law at the international level are of key
importance for promoting and maintaining peace, stability and development in the world. The Council
underlines also the importance of helping to prevent future conflicts through addressing their root
causes in a legitimate and fair manner.
The Security Council warmly welcomes the Secretary General’s decision to make the United
Nations work to strengthen the rule of law and transitional justice in conflict and post-conflict societies apriority for the remainder of his tenure.27

Two years later, after a discussion under an agenda item entitled ‘Strengthening
international law: rule of law and maintenance of international peace and security’,28 a
Presidential Statement was issued containing the following:

The Security Council emphasizes the responsibility of States to comply with their obligations to
end impunity and to prosecute those responsible for genocide, crimes against humanity and serious
violations of international humanitarian law. The Council reaffirms that ending impunity is essential if asociety in conflict or recovering from conflict is to come to terms with past abuses committed against
civilians and to prevent future such abuses. The Council intends to continue forcefully to fight impunity
with appropriate means and draws attention to the full range of justice and reconciliation mechanisms to beconsidered, including national, international and ‘mixed’ criminal courts and tribunals and truth andreconciliation commissions.29

24
25
26
27
28
29

UN Doc. S/RES/1593 (2005), OP 3-4.
UN Doc. S/RES/1970 (2011).
UN Doc. S/PV.5052 and S/PV.5052 (Resumption 1).
UN Doc. S/PRST/2004/34.
UN Doc. S/PV.5474 and S/PV.5474 (Resumption 1).
UN Doc. S/PRST/2006/28, pp. 1-2.

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Page 10

In 2008, the Security Council recognized ‘the importance of transitional justice inpromoting lasting reconciliation among all the people of Burundi and welcoming progressin the preparations for national consultations on the establishment of transitional justicemechanisms, including through the establishment of a Technical Follow-up Committee
and a forum of civil society representatives’.30 It encouraged the Government of Burundi‘to ensure that national consultations on the establishment of transitional justicemechanisms are begun as soon as possible, without further delay’.31 In 2011, it ‘stress[ed]the need for alleged perpetrators of crimes against children in situations of armed conflict
to be brought to justice through national justice systems and, where applicable,international justice mechanisms and mixed criminal courts and tribunals in order to end
impunity’.32 Transitional justice has proved to be of particular importance to the work of
the Peacebuilding Commission, which is a subsidiary body reporting to the Security
Council.
If transitional justice can only be implied from the Charter of the United Nations,
there are a number of more explicit authorizations in specific treaties. The first of the
major human rights and international criminal law treaties is the Convention on thePrevention and Punishment of the Crime of Genocide. In its 2007 ruling in the casebetween Bosnia and Serbia, the International Court of Justice found the respondent to be
in breach of the Convention because of its failure to contribute to the arrest of certain
individuals charged with genocide by the International Criminal Tribunal for the former
Yugoslavia. The Court deduced from article VI of the Convention the existence of an
obligation to cooperate in prosecutions by international criminal tribunals such as theInternational Criminal Tribunal for the former Yugoslavia. Nevertheless, on a plain
reading, article VI merely establishes the appropriate jurisdiction for prosecution of
genocide. The Court concluded that the obligation to cooperate ‘implies that [States
Parties] will arrest persons accused of genocide who are in their territory - even if thecrime of which they are accused was committed outside it - and, failing prosecution ofthem in the parties’ own courts, that they will hand them over for trial by the competent
30
31
32

UN Doc. S/RES/1858 (2008), PP 9.
Ibid., OP 12.
UN Doc. S/RES/1998 (2011), PP 8.

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Page 11international tribunal’. 33 The Court considered that Serbia had failed to do this withrespect to suspects in the Srebrenica massacre.

Transitional Justice and the International Criminal Court

The Rome Statute of the International Criminal Court is today at the centre of thelegal debate concerning transitional justice. The Rome Statute intrudes deeply into thesovereign sphere of state activity because it recognizes the authority of the Court tointervene when States fail to prosecute serious international crimes that are committed on
their territory or by their nationals. These serious international crimes – genocide, crimes
against humanity, war crimes and the crime of aggression – are very much the bread andbutter of transitional justice. The consequence is that it is now impossible for States toassess the transitional justice options that are best suited to their own needs, politicalcontext and historic development without taking into account the possibility that the
Court will decide to involve itself based on a different evaluation of priorities andregardless of their concerns.
The South African case provides an example, although of course the International
Criminal Court is without jurisdiction ratione temporis over the relevant crimes. The
South African transition from apartheid to pluralist democracy is one of the classic
laboratories of transitional justice. The centerpiece of the South African process was its
celebrated Truth and Reconciliation Commission, presided over by Archbishop Desmond
Tutu. The Commission and more generally the transitional justice model were premisedon an agreement reached between Nelson Mandela and F.W. De Klerk and later
confirmed in the postamble of the interim constitution by which the crime against
humanity of apartheid would not be punished as such. Perpetrators of individual
atrocities were invited to confess their crimes before the Truth and Reconciliation
Commission. In exchange, and to the extent that their accounts were complete andverifiable, they became entitled to an amnesty. Many availed themselves of this33

Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, para.
443.

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Page 12possibility, although a significant number did not. Perhaps the latter had calculated,accurately as it turned out, that prosecutions were highly unlikely anyway.
At the time, this was an exercise of South Africa’s sovereign authority. But thesituation would not be the same today. It would be possible for the International Criminal
Court to intervene and require that those most responsible for the crime against humanityof apartheid be brought to justice, assuming the Court would have jurisdiction ratione
temporis. If necessary, after establishing that South Africa was either unwilling or unable
to proceed, a single individual – the Prosecutor – acting without any broader authority inthe form of a mandate from South African civil society or for that matter the international
community, could decide to upset a very fragile transitional political compromise byprosecuting the apartheid-era leaders. The consequences could be enormous. Former
tyrants for whom the terms of peaceful transition included a promise they would not beheld accountable might refuse to negotiate under such uncertainty. Peaceful transition
could prove much more difficult, perhaps impossible.
Although the South African transition is merely a hypothesis, there is also a good
example of this problem from the early practice of the International Criminal Court in thecase of Uganda, which is a State Party to the Rome Statute. Uganda’s government had
been unable to achieve military victory in a conflict that had persisted over nearly two
decades. In 2003, prompted by the Prosecutor of the International Criminal Court, thePresident of Uganda, Yoveri Museveni, referred the situation concerning the Lord’s
Resistance Army in Northern Uganda to the Court. In mid-2005, five arrest warrants were
issued by a Pre-Trial Chamber of the Court against leaders of the rebel group. Thisappears to have had a decisive effect, in that it prompted the rebels to sue for peace. The
fighting stopped, and negotiations commenced. It is widely acknowledged that the threatof prosecution by the International Criminal Court helped to bring the Lord’s Resistance
Army to the negotiating table. On a visit to the Court, the Ugandan Minister for Security,
Amama Mbabazi, noted that the issuance of warrants had contributed to driving the
Lord’s Resistance Army leaders to the negotiating table. In September 2006, Jan Egelund,the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency

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Page 13

Relief, made similar observations in a briefing to the Security Council. Speaking to the
Assembly of States Parties in November 2006, Prosecutor Moreno-Ocampo said:
The Court’s intervention has galvanized the activities of the states concerned… Thanks to the unity of
purpose of these states, the LRA has been forced to flee its safe haven in southern Sudan and has moved its
headquarters to the DRC border. As a consequence, crimes allegedly committed by the LRA in Northern
Uganda have drastically decreased. People are leaving the camps for displaced persons and the night
commuter shelters which protected tens of thousands of children are now in the process of closing. The lossof their safe haven led the LRA commanders to engage in negotiations, resulting in a cessation of hostilities
34
agreement in August 2006.

Issuance of the arrest warrants had contributed to conflict resolution in Northern Uganda.
New and welcome efforts to mediate an end to the civil war gained momentum. The
Court was demonstrating its effectiveness.
Predictably, one of the demands of the Lord’s Resistance Army leaders was that
the International Criminal Court arrest warrants not be pursued. Jan Egelund reported to
the Security Council that in meetings with internally displaced persons, civil society andthe parties themselves, the ‘International Criminal Court indictments were the number
one subject of discussion … All expressed a strong concern that if the indictments were
not lifted, they could threaten the progress in these most promising talks ever for northern
Uganda.’ President Museveni was himself more than happy to do this, and promised asmuch to the Lord’s Resistance Army. But he was unable to withdraw the internationalarrest warrants, which were valid within Uganda as a result of the country’s ratification of
the Rome Statute. For the first time in human history, a sovereign government could notpromise an amnesty in exchange for peace within an internal armed conflict. This wasprevented by the international obligations that Uganda had itself accepted.
The Prosecutor of the International Criminal Court refused to consider a retreat
from the arrest warrants, even when this seemed to be in the interests of peacefultransition. In the end, at least in part because Museveni could not remove the threat ofprosecution by the International Criminal Court, the peace deal broke down. The Lord’s
Resistance Army leaders did not show up at the meeting where they were to sign theagreement. They retreated into the bush, to fight another day, and to take new victims.

34‘Opening Remarks, Luis Moreno Ocampo, Fifth Session of the Assembly of States Parties’, 23
November 2006.

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Page 14Thus, at least as the law is currently understood within the International Criminal
Court, decisions like that of South Africa whereby transitional justice will essentially do
without criminal prosecution are no longer acceptable. This view was expressed quite
explicitly at the Review Conference of the International Criminal Court, held in Kampala
in June 2010. One of the four stocktaking sessions held at the Conference was entitled‘peace and justice’. During the discussion, a panellist said: ‘Amnesties for crimes under
the Statute were now definitively off the table.’ In his summary of the debate, moderator
Ken Roth, who is the head of the NGO Human Rights Watch, said that ‘amnesty was nolonger an option for the most serious crimes under the Rome Statute’.
The same position has been enunciated on various occasions by the Prosecutor
himself. Thus, in his ‘interests of justice’ paper issued in 2007, in which he reflected on
the scope of the discretion granted him by article 53 of the Statute to decline to prosecute
even when requested to do so by the Security Council or a State Party, the Prosecutor
said:

In relation to other forms of justice decided at the local level, the Office of the Prosecutor
reiterates the need to integrate different approaches. All approaches can be complementary. The Officenotes the development of theory and practice in designing comprehensive strategies to combat impunity.10
The pursuit of criminal justice provides one part of the necessary response to serious crimes of international
concern which, by itself, may prove to be insufficient as the Office is conducting focused investigations andprosecutions. As such, it fully endorses the complementary role that can be played by domestic
prosecutions, truth seeking, reparations programs, institutional reform and traditional justice mechanisms in
the pursuit of a broader justice.
The Office notes the valuable role such measures may play in dealing with large numbers ofoffenders and in addressing the impunity gap. The Office will seek to work with those engaged in thevariety of justice mechanisms in any given situation, ensuring that all efforts are as complementary as
possible in developing a comprehensive approach.35

The Prosecutor took the view that there was a strong presumption in favour of proceeding
before the Court. Nothing in his statement suggests a willingness to accept serious andgenuine efforts at accountability through non-judicial means as being capable ofdisplacing international prosecution. In Regulations of the Office of the Prosecutor
proposed by the Prosecutor in 2009 and subsequently adopted by the Court, the criteria
for assessing whether or not to proceed with the investigation of a subject were said to

35‘Policy Paper on the Interests of Justice’, September 2007, pp. 7-8 (references omitted).

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Page 15consist of various factors including their scale, nature, manner of commission, andimpact’.36

Amnesty and International law

The Rome Statute of the International Criminal Court, adopted in July 1998, isactually silent on the subject of amnesty and similar measures to neutralize criminal
justice, as are the constitutive instruments of the other modern-day international criminal
tribunals, with one exception. The Statute of the Special Court for Sierra Leone declares:‘An amnesty granted to any person falling within the jurisdiction of the Special Court inrespect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar
to prosecution.’ This text, which entered into force in January 2002, is specificallytargeted at the Lomé Agreement of July 1999. It brought an end to a decade-long civil
war that had devastated one of the world’s poorest countries. A clause in the Lomé
Agreement promises ‘free pardon and reprieve to all combatants and collaborators in
respect of anything done by them in pursuit of their objectives, up to the time of thesigning of the present Agreement’.
There is also an historic example. Control Council Law No. 10, which was thelegal basis for post-war trials inside Germany, stated that no ‘immunity, pardon oramnesty granted under the Nazi regime’ could be admitted as a bar to trial or punishment.
It seems that in Japan, following the Second World War, an Imperial Rescript granting anamnesty by general pardon for war crimes committed by members of the Japanese Armed
Forces during the Second World War was issued on 3 November 1946. It had no effectupon war crimes trials held by the victorious allies, including the International Military
Tribunal for the Far East.
In his report on the establishment of the Special Court for Sierra Leone, theUnited Nations Secretary-General explained that ‘[w]hile recognizing that amnesty is anaccepted legal concept and a gesture of peace and reconciliation at the end of a civil war
or an internal armed conflict, the United Nations has consistently maintained the position
36

Regulations of the Office of the Prosecutor, ICC-BD/05-01-09, Regulation 29(2).

Transitional Justice / Japanese Society of International Law / Schabas

Page 16that amnesty cannot be granted in respect of international crimes, such as genocide,crimes against humanity or other serious violations of international humanitarian law’.
The Secretary-General recalled that his Special Representative had objected to theamnesty clause contained in article IX of the Lomé Peace Agreement, noting in addition
its ‘illegality under international law’.37
Contrast the account with a report published in 2009 by the United Nations HighCommissioner for Human Rights:

The lawfulness of amnesty for war crimes, genocide and crimes against humanity was first questioned inrelation to the 1999 Lomé Peace Agreement between the Government of Sierra Leone and the
Revolutionary United Front, which contained a broad amnesty. Upon witnessing the Agreement, theSpecial Representative of the Secretary-General in Sierra Leone appended a disclaimer to his signature,reading ‘The United Nations does not recognize amnesty for genocide, crimes against humanity, war
crimes, and other serious violations of international humanitarian law.’38

The High Commissioner’s version is closer to reality. Far from ‘consistently maintaining’such an approach to amnesty, in reality the United Nations was charting a new course.
The United Nations had not, in fact, objected to an amnesty clause contained in an earlier
peace agreement reached with respect to the Sierra Leone conflict, on 30 November 1996.
In his objection to the Lomé Agreement in 1999, the Special Representative did not
employ the term ‘illegality’, contrary to the subsequent description by the SecretaryGeneral cited above. There was also something disingenuous about the declaration,
because in objecting to the amnesty clause in the Lomé Agreement the Secretary-General
was not in fact calling for the peace talks to be aborted and for the parties to return to war
until a new agreement could be reached without an amnesty clause. Rather, the SecretaryGeneral praised the fact that the parties had agreed to lay down their arms and join in a
power-sharing government. He welcomed the end of the conflict. In any case, his
agreement was hardly required for the parties to stop fighting.
The amnesty condition may well have been a sine qua non for agreement of theparties to the Lomé Agreement. Its removal might have prompted a return to warfare andatrocity. Sometimes, warring groups may only be prepared to lay down their arms in
37

38

Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc.
S/2000/915, paras. 22-24.
Analytical study on human rights and transitional justice, UN Doc. A/HRC/12/18, para. 53.

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return for a guarantee they will not be prosecuted. At Lomé, was it in fact the‘lawfulness’ of amnesty that was being questioned? Did the Special Representative of theSecretary-General object to the Sierra Leone amnesty because it was contrary tointernational law, or because it was inconsistent with a new policy direction of the United
Nations Secretariat? Similarly, when panellists at the Kampala Review Conference said
amnesty was ‘off the table’, did they mean that it was prohibited by law or simply
undesirable and unadvisable?
Amnesty is defined by the Oxford English Dictionary as ‘an act of forgetfulness,an intentional overlooking, a general pardon, esp. for a political offence’. The word isused in many languages. It originates in the Greek language as άμνηστία, where it means‘oblivion’ or ‘forgetfulness’. Sometimes de facto amnesties result from a politicaldecision not to prosecute crimes committed during a conflict rather than from a formal
agreement or declaration. They may also be the consequence of an offer of asylum whichhas, as its corollary, the removal of a threat of criminal prosecution. The exile of
Napoleon to Elba and later to St Helena furnishes an historic example. A modern one
would be Nigeria’s promise of refuge to Charles Taylor as part of the deal brokered by its
president to end the civil war in Liberia. In July 2011, the United Kingdom and France
contemplated sheltering Libyan dictator Muammar Gaddafi from prosecution by theInternational Criminal Court if he would consent to leave power.
Amnesty has long figured in peace agreements going as far back as the 1648
Peace of Westphalia and probably before then. At the dawn of international criminal
justice, the Treaty of Lausanne of 1923 contained a ‘Declaration of Amnesty’ for all
offences committed between 1 August 1914 and 20 November 1922. It replaced theTreaty of Sèvres of 1920, which was never accepted by Turkey, and which authorizedprosecution by the victorious allies not only of ‘violations of the laws and customs ofwar’, but also for the ‘massacres committed during the continuance of the state of war on
territory which formed part of the Turkish Empire on August 1, 1914’, a reference to the
Armenian genocide.
The Appeals Chamber of the Special Court for Sierra Leone considered whether
the prohibition of amnesty in its Statute was actually a rule of international law of more

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general application. It took the view that amnesty was ‘not only incompatible with, but isin breach of an obligation of a state towards the international community as a whole’.39
There have been similar pronouncements from the Inter-American Court of Human
Rights, where the obligation is presented as a right of victims rather than a duty to theinternational community. If indeed the prohibition of amnesty is an affirmative rule ofinternational law, where did it come from and what are its exact parameters?
In terms of the principle of amnesties, there are only two references in major
multilateral treaties. Actually, both of them are favourable to the concept. Article 6(4) of
the International Covenant on Civil and Political Rights declares: ‘Anyone sentenced todeath shall have the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death may be granted in all cases.’ The context
suggests that it applies to specific cases of imposition of capital punishment, rather thanto situations of post-conflict justice. Much more relevant is the Protocol Additional to the1949 Geneva Conventions and Relating to the Protection of Victims of Non-International
Armed Conflicts. According to article 6(5) of Protocol II, ‘[a]t the end of hostilities, theauthorities in power shall endeavour to grant the broadest possible amnesty to persons
who have participated in the armed conflict, or those deprived of their liberty for reasons
related to the armed conflict, whether they are interned or detained’.
Article 6(5) of Protocol II is a bone that sticks in the throats of those who insist
upon the illegality of amnesty. It has been argued that article 6(5) was never intended
to authorize or encourage amnesty for serious violations of international humanitarianlaw, such as war crimes, crimes against humanity and genocide. Much of the literatureon this point harks back to a reference in an article by Douglass Cassel citing a letterfrom a lawyer in the International Committee of the Red Cross, Toni Pfanner, whoclaimed that the purpose of the drafters of article 6(5) was not to provide impunity for
war crimes. 40 It is of course not unknown for participants in the drafting of aninternational treaty to suggest subsequently that it be interpreted in a certain way
39

40

Kallon (SCSL-04-15AR72(E)) and Kamara (SCSL-04-16-AR72(E)), Decision on Challenge toJurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 73. See also: Kondewa (SCSL-200414-AR72(E)), Separate Opinion of Justice Robertson, 25 May 2004.
Douglass Cassel, ‘Lessons from the Americas: Guidelines for International Response to Amnesties
for Atrocities’, (1997) 59 Law & Contemporary Problems 197, at p. 218.

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because ‘that is what we meant’ at the time. The problem is that such agreements areoften reached precisely because the negotiators intend somewhat divergent results, yet
are able to agree upon language that may bridge a gap between different possible
interpretations. In any case, Pfanner did not participate in the negotiations of Protocol
II in the 1970s and his belief is at the best premised on hearsay from those who did.
Their recollections of debates in years past may be coloured by what they would like toremember.
In assessing what the drafters of the Protocol intended in article 6(5), it isprobably better to look at the documents themselves. Evidence in these materials thatthe drafters of article 6(5) of Protocol II meant to exclude serious violations ofinternational humanitarian law is actually very slender. The record shows that whenarticle 6(5) of Protocol II was adopted, the representative of the Soviet Union declaredthat in his country’s opinion, the provision could not be interpreted as applying to war
criminals and those who had committed crimes against humanity. This appears to be
the only mention of the issue in the record of the Diplomatic Conference of 1974-1977
at which the Protocol was adopted. More than three decades have passed, and it is now
perhaps more difficult to recall the international context of the time. Suffice it to saythat an isolated statement from the Soviet Union at a diplomatic conference in the mid1970s is probably better interpreted as evidence of an absence of agreement, rather
than as proof of consensus or acquiescence. One statement of this nature is flimsy
authority as a basis for interpretation of a treaty provision.
Moreover, we know that the drafters of Protocol II quite intentionally excluded
the concept of war crimes in non-international armed conflict altogether. Early draftsof the Protocol spoke of war crimes known as ‘grave breaches’, parallel to a concept
applicable in international armed conflict. But these references were dropped in the
final text, failing agreement on the relevance of the entire notion of war crimes to civil
wars. Why would the drafters of Protocol II have excluded the concept of war crimes
in non-international armed conflict, but at the same time intended to refer implicitly toa non-existent notion in the amnesty provision? This rejection of the very concept of
war crimes during non-international armed conflict persisted until the mid 1990s, andTransitional Justice / Japanese Society of International Law / Schabas

Page 20continued to be questioned by large states as recently as the 1998 Diplomatic
Conference at which the Rome Statute was adopted.
In 2004 the International Committee of the Red Cross published a study of thecustomary law applicable to armed conflict. The four Geneva Conventions of 1949
have been ratified by virtually every country in the world, and it is often said that theirprovisions now amount to a codification of customary norms. The same cannot soreadily be said of the two Protocols of 1977, where the ratification pattern is not as
unanimous. An important objective of the customary law study was to fill the gaps intreaty ratification. Amongst other things, the authors of the customary law study turned
their sights on article 6(5) of Protocol II, which they reformulated slightly by theaddition of a final phrase to the text, excluding ‘persons suspected of, or accused of or
sentenced for war crimes’.41 The authors of the Red Cross study on customary law,Jean-Marie Henckaerts and Louise Doswald-Beck, explained that the intent of thedrafters of the Protocol was to exclude war crimes from such an amnesty. They
asserted that ‘state practice establishes this rule as a norm of customary internationallaw applicable in non-international armed conflicts’. This is a dubious proposition.
In the commentary on the rewritten 2004 version of article 6(5), several
amnesties that specifically excluded war crimes from their scope are cited to support
the claim about state practice. But surely this is not the way to establish a consistent
rule that might then be deemed to be customary in nature. One does not prove a normthat is generally accepted by demonstrating that some people appear to abide by it.
Should not the analysis begin by asking whether there are examples of amnesties that
include war crimes and other atrocities? Louise Mallinder, in her very thorough recent
study based on a data base of more than 500 situations, concludes that the practice ofamnesty has actually increased in popularity in recent years.42 A review of the moredetailed sources provided in Volume III of the customary law study confirms thewidespread practice of amnesty and the fact that while in some cases war crimes

41

42

Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law,
Cambridge, Cambridge University Press, 2005, p. 611.
Louise Mallinder, Amnesty, Human Rights and Political Transitions, Bridging the Peace andJustice Divide, Oxford and Portland: Hart Publishing, 2008.

Transitional Justice / Japanese Society of International Law / Schabas

Page 21are excluded, this cannot be said to be a general rule. In the introduction the study
says that if it is to constitute a basis for a customary norm, state practice must be‘virtually uniform’.
The study by the International Committee of the Red Cross acknowledges a
judgment of the South African Constitutional Court that interpreted article 6(5) ofProtocol II and upheld a broad amnesty. It attempts to distinguish this by adding thatthe amnesty ‘required full disclosure of all the relevant facts’ in exchange, nourishing
the argument that South Africa did not have a ‘blanket amnesty’. It selectively omits
discussing the much broader and essentially unconditional amnesty with respect to thecrime against humanity of apartheid.
The Red Cross study also considers the Sierra Leone amnesty, noting that the
Security Council confirmed it could not apply to war crimes. That is somewhat of an
overstatement. The Security Council Resolution in question involved the establishmentof the Special Court for Sierra Leone, which in effect repealed an amnesty accorded toa handful of senior perpetrators, making ‘those who bear the greatest responsibility’punishable before the international tribunal. In reality, it also implicitly confirmed theongoing validity of the amnesty accorded to all of the participants in the conflict withthe exception of the dozen or so who were to be subject to the Special Court.
Several weeks after the Lomé Peace Agreement was reached the Security
Council convened to assess progress in resolving the conflict. It adopted a resolutionthat alluded to the Secretary-General’s statement on the amnesty provision. The
oblique reference was an obvious compromise, reflecting the varied opinions within
the Council about the legality and the wisdom of the amnesty. For example, speaking
in the debate, the British representative said that the ‘blanket amnesty’ had ‘rightly
caused concern. But this was one of many hard choices that the Government and thepeople of Sierra Leone had to make in the interests of securing a workable agreement.’
The United States said it was ‘committed to the pursuit of accountability’ but that ‘[a]t
the same time, we recognize the need to allow the Lomé Agreement to bear fruit’.
Argentina spoke expressing its disapproval of the amnesty, but said ‘we understandthat that very delicate decisions can be taken only by the parties involved, which

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Page 22

assume the historical responsibility inherent in that decision’. Gabon expressedsatisfaction with the amnesty. Gambia said it understood the circumstances underwhich the amnesty was granted; it mentioned the disclaimer by the Special
Representative, saying it shared the views expressed. The Netherlands was the only
other state to refer to the Special Representative’s reservation, strongly condemning theamnesty. Slovenia said the Lomé Agreement ‘highlighted the difficult choices that
often confront the peacemakers’. Others, including Canada and France, said nothing
about the amnesty.43
Surely it would have been more prudent for the International Committee of the
Red Cross to acknowledge that there is actually quite inconsistent practice in this area,
and that realistically one cannot conclude there is a prohibition under customaryinternational law. A fairer assessment of law and practice appears in the reasons of Lord
Lloyd of the United Kingdom House of Lords in the Pinochet case, in 1998.

Further light is shed on state practice by the widespread adoption of amnesties for those who havecommitted crimes against humanity including torture. Chile was not the first in the field. There was anamnesty at the end of the Franco-Algerian War in 1962. In 1971 India and Bangladesh agreed not topursue charges of genocide against Pakistan troops accused of killing about one million East Pakistanis.
General amnesties have also become common in recent years, especially in South America, covering
members of former regimes accused of torture and other atrocities. Some of these have had the blessingof the United Nations, as a means of restoring peace and democratic government… It has not beenargued that these amnesties are as such contrary to international law by reason of the failure to prosecutethe individual perpetrators.44

In fact, there is no treaty text in public international law instruments explicitly prohibiting
amnesty and there is no consistent practice of states allowing the conclusion that this is anorm of customary international law.
The argument that amnesty is prohibited by international law relies upon
implication. With respect to certain treaties, such as the Convention Against Torture and
the Genocide Convention, as well as the 1949 Geneva Conventions, it is said that the duty
to prosecute specific crimes precludes the possibility of amnesty. But treaties are also to
be interpreted in light of the subsequent practice of their parties. For the same reasons
43
44

UN Doc. S/PV.4035, p. 5.
R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet, [1998] 4 All ER 897(HL), at 929 h-i.

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Page 23that generate doubts about the consistent practice necessary to conclude that a customarynorm exists, the argument that the obligation to prosecute set out in certain treaties is
unconditional and without any exception cannot be sustained. Even when states assume
their duties to ensure that such atrocity crimes are prosecuted, they often pursue thematter selectively and partially, rather like the United Nations did with respect to Sierra
Leone. There may be some symbolic trials, but often there is no attempt at full-blown andexhaustive implementation.
In 2006, four senior Rwandan officials against whom credible allegations of
genocide had been made were located in the United Kingdom. The government
cooperated with the Rwandan Government in developing an extradition request. When
British courts denied the application, in mid-2009, because they considered the Rwandanjustice system to be inadequate, the four were released. They now remain at large without
any prospect they will be brought to justice. Britain does not have legislation enabling it
to exercise universal jurisdiction over the crime of genocide. Presumably, if it believedthat it was required by international law to prosecute genocide suspects found on its
territory, it would have enacted appropriate laws. The United Kingdom acceded to the
Genocide Convention on 30 January 1970, so it has had more than forty years to reflect
upon the shortcomings in its legal framework.
The tension between amnesty and international prosecution also manifested itself
in the removal of Charles Taylor from power in Liberia. In August 2003, Taylor agreed toleave office in exchange for a promise of asylum in nearby Nigeria. The deal brought an
end to a lengthy conflict. Not only were lives spared as a result, Liberia was launched ona process of reform and democratization. Those with an intransigent attachment to justicewere shocked, given that Taylor had been indicted for war crimes and crimes against thehumanity by the Special Court for Sierra Leone only months earlier. But even they cannot
dispute the impressive deliverables that resulted from the departure of Taylor. Without
the promise of asylum and, in effect, immunity from prosecution, Taylor probably would
have prolonged the conflict. Indeed, he might still be in power.
Later, intense international pressure led Nigeria to revoke the protection of Taylor,and facilitate his transfer to The Hague for trial before the Special Court for Sierra Leone.

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This may have been an error, not because Taylor does not deserve to be tried for thecrimes with which he has been charged, but because the withdrawal of his effective
amnesty demonstrates bad faith of peacemakers, and makes it less likely that the same
technique of conflict resolution can be employed again. Unconditional opponents ofamnesty welcome such developments. But a useful implement has been removed fromthe tool-box of the African peacemaker, and more innocent people will die on thecontinent as a result.
Aside from the claims that such amnesties are not permitted under internationallaw, it is also argued that they are unwise, and that they resolve nothing. A failure topunish perpetrators of serious crimes means uncertain and unstable peace, andstrengthens the likelihood of a return to conflict, it is said. This is slightly different fromthe argument that amnesty is unacceptable because it violates the rights of individual
victims. Rather, amnesty is challenged precisely because it does not contribute to lasting
peace. The argument is utilitarian, not retributive. Presumably, those who subscribe tothis view are not opposed to amnesty as a matter of principle, but rather because it fails todeliver its alleged benefits.
The contention that amnesty does not promote lasting peace is an interesting
hypothesis, but it is unproven, and there is much empirical evidence to the contrary. It
may well be the case that in some circumstances, a situation of impunity has contributed
to continuing instability or at least accompanied it. In the Balkans, for example, it was
fashionable to explain the wars of the 1990s as the consequence of unsettled scores datingback to the Second World War and even earlier, to distant centuries. Perhaps that
explanation has some validity. But there are other conflicts that ended with impunity, andyet where peace seems permanent enough. Spain is the usual example here, a country that
suffered through a fierce civil war followed by more than three decades of brutal
dictatorship. Its transition, in the 1970s, was premised upon an amnesty. There areunsatisfied victims, or their descendants, to be sure, and some rumblings from thejudiciary and civil society, but this alone does not mean that a generalized social peace
has not been achieved.

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A more nuanced approach to amnesty was adopted by the Sierra Leone Truth andReconciliation Commission. In its final report, the Commission concluded:

Accordingly, those who argue that peace cannot be bartered in exchange for justice, under any
circumstances, must be prepared to justify the likely prolongation of an armed conflict. Amnesties may beundesirable in many cases. Indeed there are examples of abusive amnesties proclaimed by dictators in the
dying days of tyrannical regimes. The Commission also recognizes the principle that it is generally
desirable to prosecute perpetrators of serious human rights abuses, particularly when they rise to the levelof gravity of crimes against humanity. However amnesties should not be excluded entirely from themechanisms available to those attempting to negotiate a cessation of hostilities after periods of brutal armed
conflict. Disallowing amnesty in all cases is to deny the reality of violent conflict and the urgent need tobring such strife and suffering to an end.
The Commission is unable to declare that it considers amnesty too high a price to pay for thedelivery of peace to Sierra Leone, under the circumstances that prevailed in July 1999. It is true that the
Lomé Agreement did not immediately return the country to peacetime. Yet it provided the framework for aprocess that pacified the combatants and, five years later, has returned Sierra Leoneans to a context inwhich they need not fear daily violence and atrocity.45

The Commission’s view is probably a minority voice in the current debate, at least ininternational law circles. At the very least, it usefully recalls that there is no unanimity onthese issues.

Justifications for Transitional Justice in Law and PracticeTransitional justice involves a spectrum of alternatives. No situation will betreated in an identical way. As discussed above, the International Criminal Court seems to
reduce the degree of discretion at the national level in the selection of the relevant options,by making prosecution an imperative and by authorising the intervention of the Court
where it is not undertaken by national authorities. For States Parties to the Court, this is atreaty obligation that they have freely accepted. They are also at liberty to denounce theRome Statute should they find this limitation on their sovereignty to be unacceptable.46 If
States Parties find that the International Criminal Court encroaches unacceptably upon
the choice of alternatives adopted to deal with transitional justice, they may amend the
Statute to limit the discretion of the Prosecutor or the judges. The Prosecutor is, of course,
45

46

Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, Vol. 3B,
Freetown, 2004, ch. 6, paras. 11-12 (the author of this volume was one of the members of theCommission).
Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, art. 127.

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only interpreting the Rome Statute. In this respect, he has relied on certain principles
derived from international law, but his interpretation of the Statute may deservereconsideration.
There are still a large number of States, and many very important ones, that have
not yet accepted the Rome Statute. The threatened interference of the International
Criminal Court in transitional justice processes is not really an issue as far as they areconcerned, although it may colour their own decisions about ratification or accession to
the Rome Statute. Nevertheless, countries like Sri Lanka, Burma, North Korea, Iraq,
Egypt, Tunisia, Syria and Zimbabwe, to name only a few where transitional justice issues
may realistically arise now or in the foreseeable future, remain in a situation similar tothat of South Africa in the early 1990s. Their choices of transitional justice mechanisms
are not subject to a treaty like the Rome Statute. Of course, they may find themselves
constrained by Security Council intervention, as has been the case with two other nonparty States, Sudan and Libya, a matter discussed earlier in this paper.
It may be the case that general international law, and more specificallyinternational human rights law, imposes duties upon States with respect to transitional
justice context. In 2006, a Presidential Statement of the Security Council spoke of the
responsibility of States to comply with their obligations to end impunity and to prosecute
those responsible for genocide, crimes against humanity and serious violations ofinternational humanitarian law.47 It did not indicate the source of these obligations, orwhether they resulted from customary international law rather than treaties. According tothe ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation forVictims of Gross Violations of International Human Rights Law and Serious Violationsof International Humanitarian Law’, adopted by the United Nations Commission on
Human Rights in 2005, ‘[i]n cases of gross violations of international human rights law
and serious violations of international humanitarian law constituting crimes underinternational law, states have the duty to investigate and, if there is sufficient evidence,the duty to submit to prosecution the person allegedly responsible for the violations and,47

UN Doc. S/PRST/2006/28, pp. 1-2.

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if found guilty, the duty to punish her or him’.48 To the extent that such obligations exist
outside of a treaty regime, state practice indicates that they are confined to the traditional
jurisdiction of states over territory and nationality. In other words, any claim that there is
an aut dedere aut judicare duty in the absence of treaty provisions lacks supporting
evidence, however attractive the proposition may seem in terms of international morality
and civilized behaviour.
There is much authority in the case law of the European Court of Human Rights,
the United Nations Human Rights Committee, and the Inter-American Court of Human
Rights for the proposition that fundamental rights are breached where a state fails toinvestigate, prosecute and punish. In a recent case, the European Court of Human Rights
held that Bulgaria had breached the European Convention because it did not adequately
investigate a complaint of so-called ‘date rape’. 49 Another decision involves a violent
attack on Jehovah’s Witnesses during a religious meeting, a Chamber of the Court wrote:
Article 3 of the [European] Convention [on Human Rights] gives rise to a positive obligation to conduct anofficial investigation. Such a positive obligation cannot be considered in principle to be limited solely tocases of ill-treatment by state agents. Thus, the authorities have an obligation to take action as soon as an
official complaint has been lodged. Even in the absence of an express complaint, an investigation should beundertaken if there are other sufficiently clear indications that torture or ill-treatment might have occurred.
A requirement of promptness and reasonable expedition is implicit in this context. A prompt response by
the authorities in investigating allegations of ill-treatment may generally be regarded as essential inmaintaining public confidence in their maintenance of the rule of law and in preventing any appearance ofcollusion in or tolerance of unlawful acts. Tolerance by the authorities towards such acts cannot but
undermine public confidence in the principle of lawfulness and the state's maintenance of the rule of law.50

This is the procedural obligation associated with the protection of the right to life and theprohibition of torture and inhuman or degrading treatment.
The Inter-American Court of Human Rights has addressed this issue somewhat
differently, in the specific context of amnesty laws. According to the Inter-American
Court, ‘states cannot neglect their duty to investigate, identify, and punish those persons
responsible for crimes against humanity by enforcing amnesty laws or other similar

48
49
50

UN Doc. E/CN.4/RES/2005/35, para. 4.
M.C. v. Bulgaria (Application No. 39272/98), ECHR 2003-XII, para. 149.
Case of 97 Members of the Glldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia(Application No. 71156/01), Judgment, 3 May 2007, para. 97 (references omitted).

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domestic provisions’.51 The Court ‘considers that all amnesty provisions, provisions onprescription and the establishment of measures designed to eliminate responsibility areinadmissible, because they are intended to prevent the investigation and punishment of
those responsible for serious human rights violations such as torture, extrajudicial,summary or arbitrary execution and forced disappearance, all of them prohibited because
they violate non-derogable rights recognized by international human rights law’.52 TheInter-American Court appears to predicate the obligation on violations of ‘non-derogable
rights’. These are obligations that cannot be suspended, even in time of war or national
emergency. The formulation is imprecise because non-derogable rights include freedomof religion and the prohibition of imprisonment for debt. What the Court probably meant
was that there is a hierarchy of rights, with some being so essential to the protection ofhuman dignity that they cannot ever be subject to amnesty.
These pronouncements from the human rights bodies apply to all serious crimes
involving violence against the person, and not only to war crimes, crimes against
humanity and genocide. There seems to be no logical basis in international human rights
law for making any distinction between the rights of the victim of an ordinary murder orrape and the rights of the victim of a murder qua crime against humanity or genocide.
From the standpoint of the individual victim, how could the legal qualification of such acrime have any significance? Should one victim be denied justice, as a matter of principle,
because the perpetrator did not have the elevated degree of criminal intent necessary for afinding of crimes against humanity or genocide?
Any specific human rights norm must normally be balanced against other norms,
so that the protection of human rights is viewed as a coherent, indivisible ensemble andnot a hierarchical system where one right invariably trumps another. An example of afundamental right that might enter into the calculus is the right to peace.53 If amnesty is
the price to be paid for an end to armed conflict, and the death and destruction that itbrings to ordinary people, shouldn’t this be a relevant factor that may outweigh or limit,
in specific circumstances, the rights of victims of specific crimes associated with that
51
52
53

Almonacid-Arellano et al. v. Chile, No. 45 (2006), para. 114.
Barrios Altos v. Peru, 14 March 2001, para. 41.
‘Promotion of the right of peoples to peace’, UN Doc. A/HRC/RES/11/4.

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same conflict to have their tormentors brought to book? Moreover, some attention mustsurely be paid to the cost of justice. States have limited resources. These must be
apportioned in such a manner as to ensure that all fundamental rights, including the
economic and social rights to education, housing and medical care, are fulfilled. Do theinvestments required to ensure justice necessarily override those that would otherwise be
devoted to schools and hospitals? In reality, we always make such calculations. When the
United Nations insisted on quashing the amnesty in Sierra Leone, it limited its ardour to atribunal of modest expectations, likely to judge about a dozen people. If justice for all
was really such an imperative, would it not have devoted its entire budget to the Special
Court for Sierra Leone? But what then would have happened to the humanitarianassistance programmes of the United Nations Development Programme or the World
Food Programme or the many peace support operations throughout the world helping tostave off armed conflict?
Article 29(2) of the Universal Declaration of Human Rights affirms that ‘[i]n theexercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for
the rights and freedoms of others and of meeting the just requirements of morality, publicorder and the general welfare in a democratic society’. Thus, in the application of thefundamental rights of defendants to a fair trial, international criminal tribunals have heldthat the right to defend oneself in person, and the right to be present at trial, are notabsolute. Both of these rights are set out in article 14(3) of the International Covenant on
Civil and Political Rights in an apparently unqualified manner. If these rights are subject
to reasonable limitations, why then are the rights to reparation and remedy also not
subject to limitation? The right of victims to justice and to a remedy for a serious
violation of human rights, which is the foundation of the condemnation of amnesties by
the human rights tribunals, may be limited or tempered by other rights and priorities.

Transitional Justice / Japanese Society of International Law / Schabas

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Conclusions

Although both judicial and non-judicial forms of accountability have been in
existence since the beginnings of human conflict, the phenomenon of transitional justicehas only been considered seriously since the beginning of the 1990s. It emerged from
efforts to understand measures taken in Latin America and Central and Eastern Europe,
but was then approached as comparative law and practice. That there were international
standards and obligations only emerged later.
It is now well-accepted that various bodies of the United Nations, including the
Security Council, intervene in post-conflict situations. Sometimes but not always this isby consent of the government concerned. The most significant factor in the contemporary
debate is the International Criminal Court. It poses a challenge to non-judicial forms oftransitional justice, such as truth commissions, and appears to take the position thatamnesty is not only undesirable but is prohibited by both the Rome Statute and customaryinternational law. This paper has taken the view that such a position is too extreme.
Transitional justice mechanisms vary enormously, depending on a range of factors
including the history of a conflict, the culture and the balance of forces. Invoking
international law in order to constrain techniques such as amnesty that have proven so
effective in the past in resolving conflicts is not desirable. The search for peace, which isitself grounded in fundamental rights, is an important and delicate task. Peacemakers
should not find themselves constrained by the mechanistic application of concepts whose
claim to normative status has in any case been somewhat exaggerated.