Amnesty justified?: The need for a case by case approach in the interest of human rights

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Tilburg University

Amnesty justified?

Vriezen, V.

Publication date: 2011 Document Version

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Citation for published version (APA):

Vriezen, V. (2011). Amnesty justified? The need for a case by case approach in the interest of human rights. Wolf Legal Publishers (WLP).

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Take down policy

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Amnesty justified?

The need for a case by case approach

in the interests of human rights

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Amnesty justified? The need for a case by case approach in the interests of human rights

Vera Vriezen

Dissertation-edition. A commercial edition of this thesis will be published by Intersentia.

The research for this dissertation was financially supported by the Netherlands Organisation for Scientific Research (NWO).

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A

MNESTY JUSTIFIED

?

T

HE NEED FOR A CASE BY CASE APPROACH

IN THE INTERESTS OF HUMAN RIGHTS

PROEFSCHRIFT

ter verkrijging van de graad van doctor aan Tilburg University

op gezag van de rector magnificus, prof.dr. Ph. Eijlander,

in het openbaar te verdedigen ten overstaan van

een door het college voor promoties aangewezen commissie

in de aula van de Universiteit

op vrijdag 16 december 2011 om 14.15 uur

door

Vera Vriezen

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Promotiecommissie:

Promotores: prof.mr. W.J.M. van Genugten prof.mr. M.S. Groenhuijsen Overige leden: prof.mr. C. Flinterman

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VOORWOORD

Graag wil ik de mensen bedanken die mij op verschillende wijze hebben geholpen en gesteund deze dissertatie met succes te kunnen schrijven. Een aantal mensen wil ik hierbij graag in het bijzonder bedanken.

Allereerst mijn twee promotores, professor Willem van Genugten en professor Marc Groenhuijsen. Willem wil ik bedanken voor zijn begeleiding, vertrouwen en steun, niet alleen gedurende het proefschrifttraject, maar ook in de aanloop daarnaartoe. Willem heeft een grote rol gespeeld in de weg van student naar aio. Marc wil ik bedanken voor zijn begeleiding, vertrouwen en enthousiasme vanaf de eerste dag. Na een bespreking met Marc kreeg ik altijd weer nieuwe energie. Marc wil ik ook bedanken voor het indienen van de subsidieaanvraag waardoor dit onderzoek mogelijk werd.

De Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO) wil ik bedanken voor het mogelijk maken van dit onderzoek.

Dank gaat ook uit naar de leden van de promotiecommissie, de professoren Cees Flinterman, Rianne Letschert, Theo de Roos en Harmen van der Wilt, voor het lezen van het manuscript en hun waardevolle inzichten.

Mijn collega’s van de vakgroep EIP wil ik bedanken voor hun bijdrage aan een plezierige werkomgeving.

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LIST OF ABBREVIATIONS

ACHR American Convention on Human Rights

AFRC Armed Forces Revolutionary Council (Sierra

Leone)

AI Amnesty International

Art(t). Article(s)

AZAPO Azanian Peoples Organisation (South Africa)

CAT Committee against Torture

CAVR Commission for Reception, Truth, and

Reconciliation (East Timor)

CDF Civil Defence Forces (Sierra Leone)

CIDH Commission for the Investigation of Criminal

Acts (El Salvador)

CONADEP Comisión Nacional sobre la Desaparición de

Personas [National Commission on the Disappearance of Persons] (Argentina)

Comm. Communication

CPA Comprehensive Peace Agreement (Nepal)

Doc. Document

ECCC Extraordinary Chambers in the Courts of

Cambodia

ECHR European Convention for the Protection of

Human Rights and Fundamental Freedoms

ECtHR European Court of Human Rights

ECOSOC Economic and Social Council

ed(s). editor(s)

e.g. exempli gratia [for example]

et al. et alii/aliae [and others]

etc. et cetera [and so on]

ESMA Escuela Superior de Méchanica de la Armade

[Navy School of Mechanics] (Argentina)

EU European Union

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FMLN Frente Farabundo Martí para la Liberación Nacional [Farabundo Martí National Liberation Front] (El Salvador)

FNLA National Front for the Liberation of Angola

FBI Federal Bureau of Investigation (USA)

GA General Assembly

GC Geneva Convention

HRC Human Rights Committee

HRW Human Rights Watch

IAComHR Inter-American Commission on Human Rights

IACtHR Inter-American Court of Human Rights

Ibid. Ibidem [in the same place]

ICC International Criminal Court

ICCPR International Covenant on Civil and Political

Rights

ICJ International Court of Justice

ICRC International Committee of the Red Cross ICTJ International Center for Transitional Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former

Yugoslavia

i.e. id est [that is]

IST Iraqi Special Tribunal

LRA Lord’s Resistance Army (Uganda)

MINUSTAH United Nations Stabilization Mission in Haiti

MMM Memory, Memorials and Museums

NGO Non-Governmental Organization

No(s). Number(s)

OAS Organization of American States

OEA Organización de los Estados Americanos[OAS]

OHCHR Office of the United Nations High Commissioner for Human Rights

p(p). page(s)

para(s). paragraph(s)

Res. Resolution

rev. revised

RUF(/SL) Revolutionary United Front (of Sierra Leone)

SC (United Nations) Security Council

SCSL Special Court for Sierra Leone

SG Secretary-General

SLA Sierra Leone Army

STL Special Tribunal for Lebanon

TRC Truth and Reconciliation Commission

UCA José Simeón Cañas Universidad Centroamericana

[Central American University] (El Salvador)

UDHR Universal Declaration of Human Rights

UN United Nations

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UNHRC United Nations Human Rights Council UNITA Union for the Total Independence of Angola

U.S./USA United States of America

USSR Union of Soviet Socialist Republics

v. versus

Vol. Volume

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PART 1

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CHAPTER I

GENERAL INTRODUCTION

1 INTRODUCTION

The granting of amnesty to perpetrators of human rights crimes is an issue on which views vary tremendously. On the one hand, there are those who argue that justice must be achieved by means of prosecutions in all circumstances; on the other hand, there are those who claim that prosecution is not the only way to deal with a legacy of human rights crimes. Amnesty as such does not mean that the crime was not wrong, nor is it a denial of punishable acts or per se an excuse or a way of removing legal grounds. Amnesty proper only means that no criminal investigation or prosecution will take place despite the fact that crimes were committed. Amnesty laws are created mainly when states are going through a period of transition, often from war to peace, and of political upheaval, for example, when a democratic government replaces a military regime.

One of the best-known examples of the use of amnesty in a transitional situation is that of South Africa. Notwithstanding the international support for the amnesty in South Africa, in Azanian Peoples Organisation (AZAPO) and Others v. President

of the Republic of South Africa and Others, the applicants requested the

Constitutional Court for an order declaring section 20(7)1_{(on the granting of}

amnesty and effect thereof) of the Promotion of National Unity and Reconciliation Act (1995) unconstitutional. The Court refused. Deputy President of the Constitutional Court Ismail Mahomed explained this:

Every decent human being must feel grave discomfort in living with a consequence which might allow the perpetrators of evil acts to walk the streets of this land with impunity, protected in their freedom by an amnesty immune from constitutional attack, but the circumstances in support of this course require carefully to be appreciated. Most of the acts of brutality and torture

1_{The Committee on Amnesty is allowed to grant amnesty in respect to any act, omission or offence if}

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which have taken place have occurred during an era in which neither the laws which permitted the incarceration of persons or the investigation of crimes, nor the methods and the culture which informed such investigations, were easily open to public investigation, verification and correction. Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof. Loved ones have disappeared, sometimes mysteriously and most of them no longer survive to tell their tales. … Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible, witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law.2

Recent history is full of examples of cases in which successor regimes have rather granted amnesties to officials of the previous regime who were guilty of international human rights crimes than prosecuted them. In some of these cases, particularly that of South Africa, the United Nations has welcomed such a solution.

For example, in Sierra Leone, the state’s wish to grant amnesty was partly stalled by the United Nations and prosecution of those allegedly responsible for international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law was made possible by the establishment of the Special Court for Sierra Leone. The Sierra Leonean Truth and Reconciliation Commission holds that:

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 be undesirable in many cases. Indeed, there are examples of abusive amnesties proclaimed by dictators in the dying days of tyrannical regimes. The Commission also recognises the principle that it is generally desirable to prosecute perpetrators of serious human rights abuses, particularly when they ascend to the level of gravity of crimes against humanity. However, amnesties should not be excluded entirely from the mechanisms available to those attempting to negotiate a cessation of hostilities after periods of brutal armed conflict. Disallowing amnesty in all cases would be to deny the reality of violent conflict and the urgent need to bring such strife and suffering to an end.3

The Preamble of the Rome Statute of the International Criminal Court also confirms the development towards an international stand against impunity. The Preamble states that “the most serious crimes of concern to the international community as a whole must not go unpunished … their effective prosecution must be ensured …

2_{South African Constitutional Court,Azanian Peoples Organisation (AZAPO) and others v. President}

of the Republic of South Africa and Others, CCT17/96, Judgment of 25 July 1996,para. 17.

3

Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth

& Reconciliation Commission, Vol. 3b, 5 October 2004, p. 365, Chapter 6, at 11.

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[and] it is the duty of every state to exercise criminal jurisdiction over those responsible for international crimes.” The International Criminal Court is an essential part of the international effort to fight impunity for serious international human rights crimes. The states parties agreed that such grave crimes threaten the peace, security and well-being of the world. Despite the growing number of member states to the ICC Statute, state practice does not nearly reflect the intentions of the ICC Statute. This may indicate that despite the fact that states agree that human rights crimes should not go unpunished, it is quite difficult to achieve this in transitional situations. In such situations, states need to balance the need to (re)build the rule of law with the need to end human rights violations. Therefore, it is worth examining whether it is advisable to foreclose the possibility to grant amnesty.

2 RESEARCH QUESTION

National efforts to establish peace and democracy often clash with international legal demands. It is obvious that some amnesties will not be recognized internationally. The kind of blanket, unconditional amnesty, such as the amnesty granted by the Pinochet regime to itself, cannot hope to receive international recognition. However, the same principle does not necessarily apply to conditional amnesties accompanied by, for instance, a thorough investigation by a truth and reconciliation commission like the South African one. If all amnesties for international human rights crimes in all circumstances were to be considered unacceptable and never to be accorded international recognition, this might seriously invalidate a useful tool for ending or preventing wars, facilitating the transition to democratic civilian regimes or aiding the process of reconciliation.

Recognizing the still widespread state practice concerning amnesty, which, according to national governments and courts, do not necessarily harm international efforts to promote human rights, and given the fact that the international community has an interest in respect for human rights and the rule of law, as well as the restoration and maintenance of peace and public order and the ways in which human rights may be enhanced, the core question of this research is:

What kind of amnesty measures can be considered legitimate in the light of the need to combine respect for human rights and the rule of law with the need to restore and maintain peace and public order?

3 OBJECTIVE OF THE STUDY

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practice is deemed to uncover facts that cannot easily be neglected when taking decisions on this highly complex matter.

The research will concentrate on the clash between the effort to eradicate impunity and the state practice of granting amnesty. How to balance two main aims: on the one hand, respect for human rights and the non-desirability of impunity; on the other hand, the need to go on, in one way or another, including the structural requirements needed for such a way, such as the neutralization of opposition groups, encouraging combatants to lay down their arms, the need to reach a peace agreement and the improvement of the human rights situation.

The aim of this research is to develop a framework that can be used in international as well as national criminal proceedings in cases in which the legitimacy of an amnesty law, measure or judgment is questioned. To this end, the factors that play a role when examining the legitimacy of an amnesty have to be determined. The framework is not only useful when reviewing an amnesty already granted. It may also be informative for and kept in mind by states considering amnesty or actors involved in post-conflict processes of reconciliation, transitional justice, and so on.

4 RESEARCH APPROACH

This study examines international law, literature, case law, reports, studies of NGOs, and various kinds of United Nations’ documents in order to find an answer to the core research question.

The research is composed of four parts:

Part 1 contains this chapter and is a general introduction to the research containing a brief outline of the research subject, the research question, the objective of the study and the methodology.

Part 2 will first outline the impunity matter in Chapter II. It is important to understand impunity and the effects impunity may have on a society, because impunity is the broader concept of which amnesty is a form. Chapter III addresses amnesty. The reasons behind and the circumstances under which states decide to grant amnesty are elaborated on. The purposes of amnesty will be outlined, as well as the benefits prosecution may have. In addition, the various forms in which amnesty may be granted will be presented. Arguments in favour and against amnesty will be discussed.

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when an amnesty covers international crimes. The United Nations, with 193 members states being a very prominent actor, is the subject of Chapter V. A close look will be taken at the United Nations’ position and practice on impunity, amnesty and the duty to prosecute. A factor of high relevance for the subject of this research is the victims. When the rights of victims are not respected, this may influence the legitimacy of an amnesty. Chapter VI will therefore identify the rights of victims related to the practice of granting amnesty, and set out these rights. Attention will also be paid to victim participation in the process of granting amnesty.

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PART 2

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C

HAPTER

II

I

MPUNITY

1 INTRODUCTION

Over and over again, the world is confronted with grave and systematic human rights violations: Argentina, Cambodia, Chile, Iraq, the former Yugoslavia, Rwanda, Sierra Leone and South Africa are perhaps some of the most well-known. The reason that these countries are some of the best known countries to have violated human rights is because the international community paid attention to these violations. The attention given to these violations is not merely bringing it into the international news, but special attention. Special courts and tribunals were established and international arrest warrants were issued in order to prosecute the violators of the human rights crimes committed, at least those most responsible for those crimes. In the cases of Argentina and Chile, Spain is trying to prosecute those responsible for the violations committed during the military regimes in those countries, and since June 2005, Argentina itself has also been prosecuting Dirty War cases.1_{On 14 June 2005, the Argentine Supreme Court in the Simón case}

declared the Full Stop and Due Obedience laws, which provided immunity from prosecution as being unconstitutional. The Supreme Court stated the following:

While it is certain that Article 75, sec. 20 of the National Constitution maintains the authority of the Legislative Power to decree general amnesty, this capacity has suffered important limitations in terms of its reach. In principle, laws of amnesty have been used historically as instruments of social pacification, with the declared objective of resolving the conflicts that remain after the end of armed civil struggles. In an analogous direction, laws 23.492 and 23.521 were intended to leave in the past the conflicts between “civilians and the military.” However, to the extent that they, like all amnesties, are oriented toward the “forgetting” of grave human rights violations, they are in opposition to the ordinances of the American Convention on Human Rights and the International

1

In June 2005, the Argentine Supreme Court struck down two amnesty laws and cleared the way for prosecution of Dirty War crimes.

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Covenant of [sic] Civil and Political Rights and are, therefore, constitutionally intolerable.2

In their respective votes, the judges showed an appreciation for the international development of human rights law, citing diverse decisions that must necessarily be respected at the domestic level. The Supreme Court referred to the Barrios Altos

case (2001) of the Inter-American Court of Human Rights, and held that:

[For] the purpose of fulfilling the international treatises on human rights, the suppression of the Full Stop and Due Obedience laws cannot be postponed and must be carried out in such a way that no normative obstacle to the prosecution of events like those that constitute the object of the present case may be derived from such laws. This means that those who benefited from such laws cannot invoke the prohibition of the retroactivity of the most serious penal law or the principle of res judicata. Thus, in accordance with what has been established by the Inter-American Court in the cases cited, such principles cannot become an impediment in the annulment of the aforementioned laws, either for the prosecution of cases that were closed because of these laws, or for that of any other case that may have been opened and never finalized. In other words, the subjection of the Argentine State to the Inter-American jurisdiction impedes the invocation of the principle of “irretroactivity” of the penal law in order to disregard the duties assumed in relation to the prosecution of grave human rights violations.3

In December 2003, the Iraqi Special Tribunal (IST) was established to prosecute Saddam Hussein and any Iraqi national or resident of Iraq accused of the crime of genocide, crimes against humanity, war crimes, or violations of certain Iraqi laws listed in Article 14 of the Statute.4_{After the internal conflicts in the former}

Yugoslavia and Rwanda, two international criminal tribunals were established, the International Criminal Tribunal for the former Yugoslavia (ICTY, 1993) and the International Criminal Tribunal for Rwanda (ICTR, 1994). The ICTY has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the … Statute”.5_{The ICTR has “the power to}

prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January

2_{Argentina Supreme Court of Justice, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,}

etc., Causa No. 17.768, Judgment of 14 June 2005. Opinion Judge Petracchi, para. 16, p. 244,

translation by K. Beamish-Brown in J.A. Montes, “The right to truth in the recent history of Argentina”, in: A. Forcinito and F. Ordonéñez (eds.), Human Rights and Latin American Cultural Studies, Vol. 4 Hispanic Issues On Line 2009, pp. 137-149, p. 145.

3

Argentina Supreme Court of Justice, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,

etc., Causa No. 17.768, Judgment of 14 June 2005, para. 31, p. 120; Translation by K. Beamish-Brown see footnote 2 above, pp. 145-146.

4

IST Statute, Article 10.

5_{ICTY Statute, Article 1.}

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1994 and 31 December 1994, in accordance with the provisions of the … Statute”.6

A Tribunal for Cambodia (Extraordinary Chambers in the Court of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, ECCC) was established to try former Khmer Rouge leaders. In Sierra Leone, the Special Court for Sierra Leone (SCSL) started in 2004 to prosecute persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.7

Less well known maybe, but nonetheless no less important or serious are cases that were not given the abovementioned ‘special attention’ and where impunity continues to exist. One can mention here the case of Burma. Human rights crimes are daily events for the citizens of this country. Crimes such as enforced relocation of population, forced labour and the use of child soldiers are common practice. Another region that may be mentioned in this respect is Tibet. Human rights crimes such as coercive abortion, involuntary sterilization and torture are committed on the Tibetan people on a large scale. As a result of the fact that the perpetrators of these crimes are not charged, punished and prosecuted, a climate arises in which impunity persists.8

2 IMPUNITY

Impunity may appear in various forms, which may differ from place to place. Impunity means that violations of the law are not punished. In this research, impunity means the failure to hold perpetrators of human rights crimes accountable and the inherent denial of the victims’ rights to justice, truth and reparation. In order to prevent impunity and to achieve justice, it is required “that the perpetrators of human rights violations be brought to account through a process which includes investigation of the facts, indictment, trial sentencing and determination of reparation for the victim of the offence”.9_{The absence}_or_{inadequacy of this process}

implies impunity.10

In 1995, Special Rapporteur Leandro Despouy indicated some negative and positive trends regarding human rights and states of emergency.11_{Among those}

6

ICTR Statute, Article 1.

7_{SCSL Statute, Article 1.} 8

The human rights situations in these two countries are the result of cultures of impunity. Up to today no international efforts are made to make an end to these cultures of impunity concerning human rights violations.

9

Geneviève Jacques, Beyond Impunity. An Ecumenical Approach to Truth, Justice and Reconciliation, World Council of Churches Publications: Geneva 2000, p. 3.

10_{Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of}

Human Rights Violations (Economic, Social and Cultural Rights), prepared by Mr. El Hadji Guissé, Special Rapporteur, pursuant to Sub-Commission resolution 1996/24, E/CN.4/Sub.2/1997/8, 27 June

1997, para. 20.

11

Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985,

have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy,

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trends are two that relate to the issue of impunity for gross violations of human rights.

A negative trend is the persistence of immunity from prosecution for the perpetrators of human rights violations which characterizes such situations, and which persists even after the state of emergency has been lifted and even when the country has returned to normal. Frequently, in many countries that have experienced long periods during which their institutions have operated under a state of emergency and there have been gross and systematic human rights violations, Governments adopt measures of clemency or amnesty laws, on the grounds of realpolitik or national reconciliation. A number of non-governmental organizations have expressed deep concern to the Special Rapporteur about such situations, as they represent a dangerous trend that facilitates or encourages future violations.12

A positive trend is

[t]he progress made in drawing up the draft code of crimes against the peace and security of mankind, and the establishment of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991[. These] are indications of the international community’s determination to set up machinery to punish gross and large-scale violations of human rights, even in the most extreme circumstances.13

In August 1991, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights decided to conduct a study on the impunity of perpetrators of human rights violations. Special Rapporteurs Louis Joinet and El Hadji Guissé wrote the final reports on this issue. Mr. Joinet prepared the one on the violation of civil and political rights and Mr. Guissé the one on the violation of economic, social and cultural rights. The Joinet report was submitted to the Sub-Commission in June 1997 and contains a Set of Principles for the protection and promotion of human rights to combat impunity.14_{Pursuant to the Vienna Declaration and Programme of Action, this Set}

Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37,

E/CN.4/Sub.2/1995/20, 26 June 1995.

12_{See ibid., para. 15.} 13

Ibid.

14_{Commission on Human Rights, Question of the impunity of perpetrators of human rights violations}

(civil and political). Final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20, 26 June 1997; and Commission on Human Rights, 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, E/CN.4/Sub.2/1997/20/Rev.1, 2 October

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of Principles is intended as a guideline to assist states in developing effective measures to combat impunity.15_{In 2005, the Set of Principles was updated by Diane}

Orentlicher.16

In the Set of Principles for the protection and promotion of human rights to combat impunity, impunity is defined as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”17_This

definition indicates that there are two kinds of impunity, de iure and de facto. De

iure impunity can result out of an amnesty (law), a pardon, an exemption or another

legal measure to prevent accountability (e.g. based on ordinary law such as prescription or mitigating circumstances).18_{In regulations amounting to de iure}

impunity, laws or regulations providing immunity or amnesty make it difficult or impossible to prosecute a perpetrator for human rights abuses.19

enjoyment of human rights. Furthermore, ICJ pointed out that international human rights bodies and procedures have repeatedly stated that impunity is a violation of international human rights law and, in particular, of the obligations to investigate violations and to prosecute and punish their perpetrators. They have also stated that impunity is the main factor which allows a recurrence of human rights violations”.

15_{Commission on Human Rights,Impunity: Report of the independent expert to update the Set of}

Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,

8 February 2005, Preamble, p. 5.

8 February 2005.Pursuant to Commission resolution 2004/72, the Set of Principles for the protection and promotion of human rights through action to combat impunity (the Principles) have been updated“to reflect recent developments in international law and practice, including international jurisprudence and State practice, and taking into account the independent study” on impunity (E/CN.4/2004/88) commissioned by the Secretary-General pursuant to resolution 2003/72. The independent study, in turn, identified best practices in combating impunity, using the Principles as a framework for assessment.

8 February 2005, Definitions, p. 6.

18_{Especially the 1980s showed a real outbreak of the issuing of amnesty laws and impunity measures,}

particularly in Latin and South America. For example Argentina’s Self amnesty law no. 22.294 (22 September 1983)18_{, Full Stop law (Ley de Punto Final) no. 23.492 (12 December 1986)}18_{and Due}

obedience law (Ley de Obediencia Debida) no. 23.521 (5 June 1987)18_{, Uruguay’s Expiration of the}

punitive power of the state, Act 15.848 (22 December 1986), El Salvador’s Decree 805 (1987), Chile’s Legislative decree 2.191 (1987) granting self-amnesty.

19_{Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir,}

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If no legal measure is taken, impunity can also result from the circumstances. This occurs when no action is taken after a period of serious violations. De facto impunity may occur intentionally or unintentionally, for example because of a lack of resources or a weak judicial system. Intentional de facto impunity means that the state willingly fails to prosecute and punish. In such a case, the state may want to protect its own members or the military, or it may decide so for safety reasons.20

This means that the institutions responsible fail to properly investigate the crimes committed and therefore do not punish the perpetrators. It is also possible that the fact that crimes were committed is denied or that a state for its own reasons decides that no legal action will be taken. Human Rights Watch claims that both de iure and

de facto impunity will weaken confidence and trust in the government and security

forces and will cause more human rights violations.21_{According to Ratner, “[p]art}

of the impunity problem today is that states too readily err on the side of presuming trials will lead to instability and hurt the country.”22_{The new regime may fear the}

possible influence and power the old regime still has, may assume that impunity is a condition for reconciliation and the healing of social wounds, or underestimate the people’s wish to see justice done.23_{This presumption may establish peace in the}

short term, but it is unclear what the consequences of impunity are in the long term. It is possible, that such a ‘bad’ example, will lead to civil unrest in the long term, or may be a reason for a return to conflict.

Principle 1 of the updated Set of Principles on general obligations of states to take effective action to combat impunity states:

reports submitted by states parties under articles 16 and 17 of the covenant: Concluding observations of the committee on economic, social and cultural rights: India, E/C.12/IND/CO/5, 8 August 2008,

para. 12.

20_{De facto impunity has been rampant in Jammu and Kashmir state, where in even well-documented}

abuse cases there is no political will to prosecute; Human Rights Watch, India. “Everyone Lives in

Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p.

27; See also, Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in

Northern Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), pp. 42-44; In South-Africa, where

“most applications for amnesty were denied … the lack of prosecution against perpetrators who were not granted amnesty has embittered victims and weakened the Commission’s legacy.” International Center for Transitional Justice, Challenging Legacies of Impunity, Annual Report Magazine 2006/2007, p. 26.

Human Rights Watch 2006 vol. 18 no. 11(C), p. 27. See also: Commission on Human Rights, Report of

Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para.

344: “Perhaps the single most important factor contributing to the phenomenon of disappearances may be that of impunity. The Working Group’s experience over the past 10 years has confirmed the age-old adage that impunity breeds contempt for the law. Perpetrators of human rights violations, whether civilian or military, will become all the more brazen when they are not held to account before a court of law. Impunity can also induce victims of these practices to resort to a form of self help and take the law into their own hands, which in turn exacerbates the spiral of violence.”

22_{Steven R. Ratner, “New Democracies, Old Atrocities: An Inquiry in International Law”, Georgetown}

Law Journal, vol. 87 1999, pp. 707-748, p. 745.

23_Ibid.

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Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.24

Notwithstanding the motives for impunity or its appearance, impunity may have very serious negative consequences for a country, as will be pointed out in Sections 4 and 5. First, three different forms of de iure impunity will be outlined in Section 3.

3 FORMS OF DE IURE IMPUNITY

There are various ways in which impunity can be provided for in a legal way. Section 2 elaborated upon the difference between impunity de iure and impunity de

facto. In this section, three different forms of de iure impunity will be explained:

amnesty laws, pardons and statutory limitations. Other forms of de iure impunity, such as immunity for state officials, lie beyond the reach of this research.25

A statute of limitations is a provision in domestic law that defines the period after a crime within which proceedings based on that crime must be started. After expiration of the set period, prosecution of the alleged offender becomes impossible. Several international instruments foreclose the possibility of statutes of limitation. For example, Article 29 of the Rome Statute and Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity state that no statutes of limitation shall apply to crimes against humanity or war crimes. It may be held that the ius cogens nature of the prohibition of torture excludes statutory limitations. The ICTY took the position that “other consequences [of the ius cogens character of the prohibition of torture under international law] include the fact that torture may not be covered by a statute of limitations.”26_{This conclusion regarding the crime of torture may be}

extrapolated to other ius cogens crimes.

The coming subsections outline amnesty laws and pardons, two forms of de iure impunity that are sometimes mistaken for one another. Statutory limitations are relevant to this research, because the fact that statutory limitations are foreclosed indicates the gravity of the crime concerned.

8 February 2005, Principle 1, p. 7.

25_{See, for example, Rosanne van Alebeek, The Immunity of States and Their Officials in International}

Criminal Law and International Human Rights Law, Oxford University Press: New York 2008.

26_{ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 157.}

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3.1 Amnesty laws

An amnesty law is a law that grants amnesty to a group of people who have committed crimes in a certain period. The law in effect shields the perpetrators from being tried for the crimes they committed during a set period before the issuance of the amnesty law. In the Study on amnesty laws and their role in the safeguard and promotion of human rights, amnesty is defined as follows:

[A]n amnesty is considered to be the juridical expression of a political act whose expected effects directly concern the promotion or protection of human rights and, in some instances, the return to, or consolidation of, democracy:

Because the amnesty encourages national consensus in the wake of a political change brought about in a democratic framework (elections …);

Because it is the first act in the initiation of a demoncratic [sic] process or marks a return to democracy; or

Because it is intended to block an internal crisis (non-international armed conflict) or mark the end of an international armed conflict.27

In the study, amnesty is “understood legally in the following sense: whether the persons amnestied have or have not been tried or convicted, or served a sentence, their conduct is deemed not to have constituted an offence and the penalty is considered never to have been enforced”.28_{Amnesties an sich do not include any}

form of truth or accountability. The impunity for the crimes provided for in the law is meant to be indefinite, but future governments may decide to abolish the amnesty law and start prosecutions. This happened for instance in Argentina, almost 20 years after amnesty was granted. Besides, when the amnesty covers international crimes, other states may hold the perpetrators to account based on universal jurisdiction, since amnesty laws only have domestic significance.29

3.2 Pardons

A pardon is the removal of a sentence or punishment “by the sovereign under the prerogative of mercy. Once a pardon is granted, the accused cannot be tried and if he has already been convicted, he cannot be punished”30_{or must be released. Unlike}

an amnesty, a grant of pardon does not eradicate the breach for which punishment is remitted.

27_{Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and}

Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur,

E/CN.4/Sub.2/1985/16, 21 June 1985, para. 7.

28_{See ibid., para. 5.} 29

See also Chapter IV, Section 6 on universal jurisdiction.

30_{Elizabeth A. Martin (ed.), A Dictionary of Law, Oxford University Press: Oxford 2003.}

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Pardons are often confused with amnesties, although they are quite different from them. A pardon is usually issued after the person who committed the crime is held accountable and thus lifts or reduces the punishment.31_{This is, however, not}

always the case. Bronkhorst holds that practice differs from theory in the sense that pardons have been used before conviction and amnesties after conviction to relieve persons from punishment. Having said this, in principle a pardon is given after conviction. Here lies an important distinction with amnesty. Although a pardon releases the perpetrator, it does not interfere with the accountability and truth functions of justice, as amnesty does.32_{Usually, amnesty implies both the}

annihilation or eradication of criminal prosecution and execution of a sentence, a pardon extinguishes only the execution of the sentence.33_{Amnesties and pardons}

also have different goals and derive from other backgrounds. Amnesties achieve the promotion of peace and reconciliation, a pardon provides a discretionary mechanism to sidestep the courts.34

Slye points out that pardons raise many of the same issues as amnesties, as a result of which “[t]here are four justifications for pardons that are relevant for amnesties. Pardons are justified as: an expression of the official grace and wisdom of a leader of government; an expression of societal forgiveness for a transgression; a recognition of rehabilitation; and as a contribution towards social stability.”35

In general, amnesties are more controversial than pardons. This may be explained by the fact that impunity is provided for a whole group of people; amnesty often covers (serious) human rights violations (that were committed on a large scale); the perpetrators are not identified and therefore the beneficiaries of an amnesty are usually not publicly known; and the victims’ are denied their rights to truth, reparation and justice (unless there are established other mechanisms to provide victims or their relatives the truth and reparation). When a person is pardoned, the criminal record remains unchanged. The pardon only affects the

31

Daan Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amnesty International: Amsterdam 1995, p. 100.

32_{Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of}

Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 236.

33_{Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal}

Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol. 26 no. 4 1998, pp. 591-624, p. 612.

34_{Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International:}

The Hague/London/New York 2002, p. 2.

35_{Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of}

Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 236. Slye continues and provides examples of these justifications: “The justification of amnesty as an expression of the grace or wisdom of a leader is most prominent in the rhetoric surrounding the annual “amnesties” issued by many Asian countries to commemorate an important national event. The rhetoric surrounding the more modern and sophisticated South African amnesty reflects the justification of amnesty as a reflection of societal forgiveness. The utilitarian justification of contributing to social stability is raised with respect to amnesties issued in transitional contexts, from the amnesties issued at the end of the U.S. Civil War to those issued more recently in Chile, Argentina, and South Africa.”

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sentence. There are, however, also controversial pardons, such as the pardon granted by U.S. President Ford to Richard Nixon in 1974, just before criminal proceedings were initiated.

4 EFFECTS ON SOCIETY

Many newly formed democratic governments are … faced with the … problem of how to treat the perpetrators of serious human rights violations committed under the previous government. Often, the firm resolve of the new leaders to bring these criminals to justice is gradually weakened during the transition period. This provides many perpetrators of serious human rights violations a means of escaping justice. Such impunity hardly contributes to strengthening the people’s confidence in the new administration, especially when officials are allowed to remain in office in spite of their past crimes.36

For victims of human rights crimes, the lack of accountability as a result of impunity is tough. But not only victims and their families suffer from impunity, impunity affects the whole society. For instance, in Jammu and Kashmir (India), Human Rights Watch observed that “impunity has bred cynicism and distrust of authority. It has led to divisions in society that will take a long time to heal.” In research conducted by Human Rights Watch many Kashmiris told them “that impunity for human rights violations is the single biggest obstacle to restoration of normality in the state. They made it plain that no peace or cease-fire will be meaningful or enduring without an end to the almost complete impunity that the Indian security forces and the militants have enjoyed.”37_{Another example is}

Uganda, where “[t]he process involves acceptance of perpetrators back into the community after certain rituals, but does not take into account the views of the individual victims who might not want to forgive serious crimes, nor does it require the perpetrators be punished or pay material damage to the victims.”38

As a result of impunity, it is not possible to separate the guilty from the innocent.39_{Luis Pérez Aguirre exemplifies:}

As soon as impunity takes root in a nation, all members of the armed forces and all members of the police who served during the reign of terror pass, without

36

Adama Dieng, “Opening Speech”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp. 19-26, pp. 20, 21.

Human Rights Watch 2006 vol. 18 no. 11(C), p. 8; Hannah Arendt wrote that “the first step on the road to total domination is to kill the juridical person in man”. Weschler explains this as “to make the attainment of justice appear hopeless and its pursuit pointless.” in Lawrence Weschler, A Miracle, A

Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 242.

38

Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern

Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), p. 56.

39_{Luis Pérez Aguirre, “The Consequences of Impunity in Society”, in: International Commission of}

Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, p. 118.

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distinction, into the ranks of the guilty. Every single one. This is ominous for a human community, for when an amnesty law (under any of its various guises) is adopted, all citizens will tend to suspect and see as guilty anyone who wore a uniform during those years. This is bound to happen if society fails to provide the opportunity and the appropriate legal machinery to separate the guilty from the not guilty.40

According to Carlos Guzman “[t]he idea of impunity prevails in the collective conscience. It is precisely these acts of impunity combined with the misapplication of justice which promote the loss of control of public order.”41_{People are expected}

to have faith in the new government while this government does not respect their rights.

The Inter-American Court of Human Rights has stated that “impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.”42

Several NGOs and UN bodies have an opinion on the issue of impunity and the consequences it might have. The UN Commission on Human Rights, for example, was convinced “that impunity for violations of human rights and international humanitarian law that constitute crimes encourages such violations and is a fundamental obstacle to the observance and full implementation of human rights and international humanitarian law”.43_{The UN Human Rights Committee}44_has

condemned the practice of states granting amnesties on several occasions,45_and

warns that pardons and general amnesties may foster a culture of impunity in which hostilities and human rights abuses may resume.46_{The International Commission of}

Jurists considers “the problem of impunity as a core issue for the full observance of human rights and the rule of law. … [T]he phenomenon of impunity is incompatible with the international obligations of States and is a major obstacle to the full

40

Ibid.

41

Cecilia Bailliet, Between Conflict & Consensus: Conciliating Land Disputes in Guatemala, Institute for Public & International Law: Oslo 2002, p. 357.

42

IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37, Judgment of 8 March 1998 (Merits), para. 173.

43_{Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity,}

E/CN.4/RES/2004/72, 21 April 2004; In 1993, the UN Commission on Human Rights in Resolution 1993/43, stated “that the increasingly widespread practice of impunity for perpetrators of violations of human rights in various regions of the world is a fundamental obstacle to the observance of human rights.”

44_{The United Nations Human Rights Committee monitors states parties’ compliance with their}

obligations under the ICCPR (1966).

45

For example, Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture,

or Other Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10

March 1992; Human Rights Committee, Concluding Observations of the Human Rights Committee:

Peru, A/51/40, paras. 339-364 (1996), para. 347; Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230.

46_{Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina,}

A/50/40, paras. 144-165 (1995), para. 158; Human Rights Committee, Concluding Observations of the

Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230.

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enjoyment of human rights.”47_{In its reply pursuant to Resolution 2002/79 of the}

Commission on Human Rights, the International Commission of Jurists agrees with this and “pointed out that international human rights bodies and procedures have repeatedly stated that impunity is a violation of international human rights law and, in particular, of the obligations to investigate violations and to prosecute and punish their perpetrators.”48_{The International Rehabilitation Council for Torture Victims}

stresses that impunity for torture hinders the rehabilitation of victims of torture, “particularly where such impunity creates the impression that the community in which the victim lives implicitly condones the violation.”49_{Human Rights Watch}

emphasizes that impunity “creates an atmosphere in which violators believe that they can get away with the most serious crimes”.50_{According to Amnesty}

International, impunity denies the values of truth and justice and causes new violations to occur.51_{All NGOs described here are convinced that impunity for}

human rights violations will lead to the occurrence of new violations.

Human rights groups, NGOs and individual defenders hold that without ending the culture of impunity, a commitment to the protection and promotion of human rights is not fully complete.52

5 FROM IMPUNITY TO A CULTURE OF IMPUNITY

A culture of impunity arises when the state consistently fails to prosecute human rights violations. Hina Jilani, Special Representative of the UN Secretary-General on Human Rights Defenders, explains that “in reality it is the absence of political will on the part of Governments that allows impunity for human rights violations to prevail”.53_{A culture of impunity can result from de iure or de facto impunity.}

Either way, a culture of impunity is claimed to be a serious cause of new violations of human rights. For example,

[a]ppalling outrages were committed during the Second World War by organized members of different ethnic groups in Yugoslavia against fellow citizens from other ethnic groups. Immediately following the war, however, in the name of the Tito regime’s policy of “brotherhood and unity”, all discussion of and attempts to come to terms with those acts were actively suppressed. This

47

Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9 January 2003, para. 23.

48_Ibid. 49

Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2000/90, 23 December 1999, para. 11.

Human Rights Watch 2006 vol. 18 no. 11(C), p. 5-6.

51_{Daan Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights,}

Amnesty International: Amsterdam 1995, p. 100.

52

General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 17.

53_{See ibid., para. 14.}

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policy continued over the next four decades, and society’s trauma and bitterness left over from the horrors of the 1940s failed to heal.54

According to Jacob Finci, “[o]ne of the reasons for the atrocities committed in … Bosnia-Herzegovina is perhaps this failure to clarify the past, this attempt to sweep it under the carpet. After the Second World War, the only ones held accountable for their cruelty were the Germans; the role played by local collaborators was hidden from view.”55_{Rigby claims that the wish of one generation to leave the violent past}

alone without clarification “does not mean that subsequent generations will remain satisfied with leaving it covered up”.56_{The sooner the truth is known, the better.}

Therefore, it is never too late to establish the facts surrounding past violations. This is illustrated by the criminal trials in Argentina instituted after the amnesty laws were overturned (2005), and the establishment in 2003 of a hybrid tribunal in Cambodia, established to prosecute those most responsible for violations committed during the Khmer Rouge regime (1975-1979).

During the existence of the UN Commission on Human Rights, the Special Rapporteurs reported on specific countries and topics, presented as reports to the Commission.57_{Impunity is considered the primary cause of torture and summary}

and arbitrary executions in these reports.58_{Another example of impunity being the}

cause of grave human rights violations is the case of Rwanda. In 1994, Bakuramutsa, the Rwandan Ambassador to the UN, expressed the view that the genocide in Rwanda resulted directly from impunity for earlier collective massacres:

Since 1959 Rwanda has repeatedly experienced collective massacres, which, as early as 1964, were described by Pope Paul VI and two Nobel Prize winners - Bertrand Russell and Jean-Paul Sartre - as the most atrocious acts of genocide this century after that of the Jews during the Second World War. But whenever such tragedies occurred the world kept silent and acted as though it did not understand that there was a grave problem of the violation of human rights. Unfortunately, the perpetrators of these crimes were never brought to justice for their acts. The recent genocide in Rwanda, which awakened, shocked and saddened the universal conscience, is the direct result of this culture of impunity.59

54_{Jacob Finci, “War and Accountability: One Bosnian’s view”, in: S. Fleming, D. Meddings and P.}

Perrin (eds.), Forum: War and Accountability, International Committee of the Red Cross: Geneva 2002, p. 66.

55_Ibid. 56

Andrew Rigby, Justice and Reconciliation. After the Violence, Lynne Riener Publishers: Boulder/London 2001, p. 3.

57_{In 2006, the UN Commission on Human Rights was replaced by the Human Rights Council.} 58

Antoine Blanca, “Speech”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp. 15-18, p. 17.

59

Security Council, Security Council, 49th year: 3453rd meeting, Tuesday, 8 November 1994, New

York. The situation concerning Rwanda, S/PV.3453, 8 November 1994, pp. 13-14.

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Another example of the fact that impunity can lead to grave human rights crimes is that which Adolf Hitler allegedly encouraged in the run-up to World War II. It is suggested that the impunity with which the Turkish Government carried out the genocide against the Armenian people in the period 1915-1918 (during World War I) emboldened Hitler to carry out the genocide of the Jewish people.60_However,

there is no empirical evidence of a causal connection.

Up to today, impunity of past violations is a reason for the occurrence of new ones. In those cases, impunity is often so widespread and accountability so rare or totally absent, that victims of human rights crimes no longer even report the crimes. Sometimes, this is connected with the fact that the authorities take part in the crimes themselves. On other occasions it is out of fear of retribution, but overall, the crimes are not reported because people know the perpetrators will not be punished. The Special Representative of the Secretary-General on human rights defenders reported that “[t]he lack of transparency and accountability in the functioning of State institutions has added to the culture of impunity”. In particular, violations committed by the military and other security forces are rarely investigated or punished, and “[e]ven where there have been prosecutions, sentences have been light”.61_{The Human Rights Committee has also expressed its concern over}

impunity for police, military and security forces.62_{In 2001, Hina Jilani described}

military tribunals as “the cornerstones of impunity for perpetrators of human rights violations. Unacceptably light sentences imposed for gross violations of human rights cast doubt on the independence and impartiality of military tribunals and strengthen the perception that there is a deliberate design to conceal atrocities and shield members of the armed forces accused of committing them.”63_{The experience}

of the Working Group on Enforced or Involuntary Disappearances and the UN Secretary-General confirm Jilani’s assertion.64_{Joinet is of the opinion that human}

60_{It is said that eight days before Hitler invaded Poland, he turned to his inner circle and said something}

like, “Who, after all, speaks today of the annihilation of the Armenians?”; Ben Chigara, Amnesty in

International Law, The Legality under International Law of National Amnesty Laws, Pearson

Education: Harlow 2002, p. 54.

61

General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 15.

62_{Human Rights Committee, Concluding Observations of the Human Rights Committee: Colombia,}

A/47/40, paras. 390-394 (1992), para. 393. See also Human Rights Committee, Coronel et al. v.

Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October 2002, para. 3.6.

63

General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 47; See also, Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para. 345, p. 84, stating “[m]ilitary courts contribute significantly to impunity, in the Working Group's experience. A recurrent theme in times of internal crisis or under the doctrine of national security is that military personnel attested to have engaged in gross misconduct, are almost invariably acquitted or given sentences that are disproportionate to the crime committed. Subsequent promotions are even commonplace.”

64_{Commission on Human Rights, Report of Working Group on Enforced or Involuntary}

Disappearances, E/CN.4/1990/13, 24 January 1990, para. 345; Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 42:“While specialized civilian courts may

strengthen domestic efforts to combat impunity, human rights treaty bodies and a wide range of special mechanisms of the Commission on Human Rights have concluded that military courts should not be competent to try serious human rights violations (principle 31).”

Amnesty justified?: The need for a case by case approach in the interest of human rights

Tilburg University

Amnesty justified?

Vriezen, V.

Amnesty justified?

The need for a case by case approach

in the interests of human rights

A

MNESTY JUSTIFIED

?

T

HE NEED FOR A CASE BY CASE APPROACH

IN THE INTERESTS OF HUMAN RIGHTS

PROEFSCHRIFT

ter verkrijging van de graad van doctor aan Tilburg University

op gezag van de rector magnificus, prof.dr. Ph. Eijlander,

in het openbaar te verdedigen ten overstaan van

een door het college voor promoties aangewezen commissie

in de aula van de Universiteit

op vrijdag 16 december 2011 om 14.15 uur

door

Vera Vriezen

VOORWOORD

CONTENTS

LIST OF ABBREVIATIONS

PART 1

CHAPTER I

GENERAL INTRODUCTION

PART 2

C

HAPTER

II

I

MPUNITY