amnesty
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GC: n

S: UNHCR – http://bit.do/ezWm5; http://bit.do/ezWm9 (last access: 11 December 2015); TIME – http://bit.do/ezWng (last access: 11 December 2015).

N: 1. “Pardon of past offenses,” 1570s, from French amnestie “intentional overlooking,” from Latin amnestia, from Greek amnestia “forgetfulness (of wrong); an amnesty,” from a-, privative prefix, “not”, + mnestis “remembrance,” related to mnaomai “I remember”. As a verb, from 1809.
2. A legal guarantee that exempts a person or group of persons from liability for
criminal or political offences. It is contrary to international law for perpetrators of genocide,
war crimes and crimes against humanity to be granted amnesty from criminal prosecution.
(See ‘Crimes against Humanity’, ‘Genocide’ and ‘War Crimes’) (OCHA)
3. The act of an authority (as a government) by which pardon is granted to a large group of individuals.
4. If respected and properly applied, an amnesty can help promote the voluntary repatriation of refugees.
5. Provision for this matter is usually included in the treaty of peace.
6. An amnesty is distinct from:

  • a pardon, which refers to an official act that exempts a convicted criminal or criminals from serving his, her or their sentences.
  • various forms of official immunity under international law, such as Head of State and diplomatic immunities, which shield officials from the exercise of a foreign State’s jurisdiction under certain circumstances.
  • other elements of impunity that do not fall within the definition of amnesty used here but which may achieve similar effects. These include States’ failure to enact laws prohibiting crimes that should, under international law, be punished; to bring criminal prosecutions against those responsible for human rights violations even when their laws present no barriers to punishment; to provide prosecutors the resources they need to ensure effective prosecution; and intimidation of witnesses whose testimony is needed to ensure a full legal reckoning.

7. Categories of amnesties:

  • Self-amnesties are amnesties adopted by those responsible for human rights violations to shield themselves from accountability. Human rights treaty bodies, jurists and others have strongly criticized self-amnesties, which by their nature epitomize impunity.
  • Blanket amnesties exempt broad categories of offenders from prosecution and/or civil liability without the beneficiaries’ having to satisfy preconditions, including those aimed at ensuring full disclosure of what they know about crimes covered by the amnesty, on an individual basis. Blanket amnesties have been nearly universally condemned when they cover gross violations of human rights and serious violations of humanitarian law.
  • Conditional amnesties exempt an individual from prosecution if he or she applies for amnesty and satisfies several conditions, such as full disclosure of the facts about the violations committed. A conditional amnesty often involves a prior investigation to allocate individual responsibility. Conditional, accountable amnesties could be considered for less serious crimes to facilitate truth-recovery and reconciliation initiatives. However, they must impose on the perpetrators applying for amnesty certain conditions such as: acknowledgement of harm done, seeking an apology, full disclosure of the facts about the violations committed, commitment to cooperate with truth telling procedures (national and/or traditional) aimed to promote reconciliation.
  • De facto amnesties describe legal measures such as State laws, decrees or regulations that effectively foreclose prosecutions. While not explicitly ruling out criminal prosecution or civil remedies, they have the same effect as an explicit amnesty law. Such amnesties are impermissible if they prevent the prosecution of offences that may not lawfully be subject to an explicit amnesty.
  • Disguised amnesties can take various forms. For example, they include amnesties whose operation is prescribed in regulations interpreting laws that, on their face, may be compatible with international law but which, as interpreted by their implementing regulations, are inconsistent with a State’s human rights obligations. Such amnesties are impermissible if they prevent the prosecution of offences that may not lawfully be subject to an undisguised amnesty.

8. Under international law, amnesties are impermissible if they:

  • Prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights;
  • interfere with victims’ right to an effective remedy; or
  • restrict victims’ or societies’ right to know the truth about violations of human rights and humanitarian law.

Moreover, amnesties that seek to restore human rights must be designed with a view to ensuring that they do not restrict the rights restored or in some respects perpetuate the original violations.

S: 1. OED – http://bit.do/ezWnn (last access: 11 December 2015). 2. GLOSS RW – http://bit.do/ezWno (last access: 11 December 2015). 3. MW – http://bit.do/ezWns (last access: 11 December 2015). 4 & 5. TERMIUM PLUS – http://bit.do/ezWnM (last access: 11 December 2015). 6 to 8. OHCHR – http://bit.do/ezWnv (last access: 11 December 2015).

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CR: armistice, ceasefire, enforced disappearance, genocide, human rights, international protection, refugee, truce, war crime.