The issue of the use of amnesties in the resolution of long running conflict situations comes under the spotlight at the University of Ulster next week, when the University’s Transitional Justice Institute (TJI) launches a new set of guidelines aimed at balancing competing demands for amnesty and accountability in conflicts and political transitions.
The Belfast Guidelines on Amnesty and Accountability have been written by a team of international human rights and conflict resolution experts led by Dr Louise Mallinder and Professor Tom Hadden at the TJI and funded by the Nuffield Foundation. The group includes several former truth commissioners, a UN special rapporteur and the former head of legal codification at the United Nations, as well as leading scholars and civil society activists.
Events over the past week in Northern Ireland demonstrate the central role that discussions on amnesty can have in post-conflict societies. Here, amnesties became headline news following the Attorney General John Larkin’scall for a stay on prosecutions, as well as most ongoing investigations, for all conflict-related offences.
The Attorney General's proposals amount to an unconditional amnesty and contrast strongly with the approach taken in the TJI's Belfast Guidelines on Amnesty and Accountability, which make detailed recommendations on how amnesties can be designed to enhance state compliance with international law and deliver accountability.
The Belfast Guidelines, to be launched at the University of Ulster’s Belfast campus at 12.30pm on Monday 2 December, set out a framework to evaluate the legality and legitimacy of amnesties in accordance with the multiple legal obligations faced by states undergoing conflict or political transition.
Amnesties have a long history of being used to end conflict and promote reconciliation, but over the past 15 years, they have faced increasing criticism in international law and policy. This has not resulted in a reduction in their use, and their potential role in ending conflict, promoting reconciliation and facilitating truth recovery is currently the subject of debate in many states including Syria, Colombia, Georgia, Uganda, and Spain.
Dr Louise Mallinder, one of the project’s leaders, said: “We are calling for the Belfast Guidelines to be adopted into international practice, to ensure that amnesties are made more compliant with international law.”
Key findings and recommendations include:
1. During or after conflicts, states have multiple legal obligations to ensure the violations are properly investigated, prosecute those responsible, provide a remedy to victims, prevent continuing abuses, and ensure respect for human rights in the future. The Guidelines recommend that states should seek to ensure fulfilment of these obligations and where they conflict, efforts should be made to balance competing obligations.
2. Prosecution and punishment are not the only forms of accountability; amnesties can be used to facilitate selective prosecution strategies, or made conditional on participation in truth commissions, public inquiries, restorative justice and reparations.
3. It is important to distinguish between illegitimate and legitimate amnesties: amnesties that are unconditional, prevent investigations and ensure impunity for those most responsible for serious crimes are generally illegitimate; amnesties designed primarily to ensure sustainable protection of human rights, and require offenders to engage with measures to ensure truth, accountability and reparations are more likely to be legitimate.
4. Acts that qualify for amnesty should be clearly specified and limited in scope to minimise the potential for conflict with any obligation under international law.
5. Special attention should be paid to the treatment of children responsible for acts that may qualify as crimes.
6. To ensure transparency and legitimacy, there should be public engagement in the design of an amnesty process, and steps should be taken to ensure victims can participate in decisions to grant amnesty in individual cases.
7. Formal and independent procedures should be established to review or adjudicate compliance with amnesty conditions.
8. Where a conditional amnesty is revoked, prosecutions should be pursued for the original crime and any subsequent offences.
9. Where an amnesty bars civil liability, administrative programmes should be considered to provide reparations and remedies for victims.
TheBelfast Guidelineswill be an important practical resource for international and national policymakers, civil society activists and lawyers who are involved in brokering or implementing peace agreements.
The recommendations in theBelfast Guidelinesdraw on a wide range of evidence including international treaties, the case law of international courts, United Nations declarations, peace agreements, national amnesty legislation and the case law of national courts.The Belfast Guidelines have been translated into Arabic, French, Mandarin, Russian and Spanish and being sent to over 400 leaders in intergovernmental institutions, government departments of donor, mediator or transitional states, and to human rights andpeace buildingorganisations. They are also freely available at:http://www.transitionaljustice.ulster.ac.uk/TransitionalJusticeInstitute.htmAmnestyGuidelinesProject.htm
Notes to Editors
The Nuffield Foundation is an endowed charitable trust that aims to improve social well-being in the widest sense. It funds research and innovation in education and social policy and also works to build capacity in education, science and social science research. The Nuffield Foundation has funded this project, but the views expressed are those of the authors and not necessarily those of the Foundation. More information is available atwww.nuffieldfoundation.org