Forgiving Amensty

by Eugene Kontorovich

Many international lawyers, particularly those involved in human rights, maintain that for certain serious international crimes, amnesty, exile, plea bargains and other forms of negotiated justice are impermissible. This is so even when the alternative to amnesty be the perpetuation of a murderous regime, or end a bloody civil war.

In this view – I think the dominant one – justice cannot be traded for peace. Violations of certain norms bring with them the obligation to punish; and this obligation is not waivable, even for very significant return benefits. The motto of human rights law is “the end of impunity.” Amnesty, of course, puts a gold seal on impunity. And exiles and token sentences, which functionally amount to partial amnesties, are equally troubling from this perspective.

However, sometimes opponents of amnesty let one slip by.

This week Israel unilaterally released 255 PLO prisoners. The prisoners were only those who did not kill any one, though many had been apprehended in an attempt (most suicide bombers and other terrorists in Israel are foiled, which means the number of attempts far exceeds the number of incidents that make it to the papers). However, the Palestinian Authority leadership immediately declared the release unsatisfactory, and there is continued pressure on Israel to release more high-profile prisoners.

Many of those on the preferred list, and perhaps some of the smaller fish, are quite possible guilty of a variety of serious international law offenses, ranging from violations of the laws of war to genocide, at least in the cases of those from Hamas, whose mission includes the extermination of the Jews. The international community, as embodied by the Quartet, favors the release of significant prisoners, and all agree that to advance the “peace process” Israel will have to release more, and eventually all, security prisoners. Indeed, it is taken for granted that a peace with the Palestinians will involve a release of all prisoners and amnesty for all wanted suspects, regardless of the nature of their crimes or how long, if at all, they have been in jail.

It seems such a deal (and the promised non-prosecution of other war criminals) would strike a blow against impunity. Indeed, it supports the argument made by critics of amnesty argue, that the possibility of amnesty may make international criminals more ruthless, because only when there is a massive need for peace will they be able to secure a deal. The worse they are, the better they do.

And indeed, Israel’s past and predicted prisoner releases no doubt have reduced deterrence against violations of international law by the Palestinians. At this point, there is a significant prospect that Israel will in the near future release large numbers, if not all, of their security prisoners, even those guilty of grave international law offenses. The expected sentence for a terrorist today is heavily discounted by the possibility of speedy release or amnesty. This is of course exactly the effect the amnesty opponents claim.

I discuss the legality of amnesties, exiles, plea bargains and their kin in a forthcoming article, The Inefficiency of Universal Jurisdiction. The main thesis is that if trading justice for peace sometimes makes sense (creates social gains), then universal jurisdiction may block these benefits. This is because UJ makes every nation co-owners in the entitlement to prosecute. This makes trading it for peace, or anything else, quite difficult, because it requires striking deals with all states. Even if a outgoing dictator strikes a deal with his and some neighboring state, some other country may come along and prosecute him.

Of course, for any of this to matter, it has to be the case that international law countenances trading justice for peace, and so the final part of this paper addresses this question.

It turns out that the international acceptance of amnesty for Palestinian terrorists is consistent with the bulk of state practice. States routinely use amnesties. While there have been some prominent repudiations of prior amnesties recently in South America, other nations still facing imminent violence continue to trade justice for peace. Moreover, such measures are embraced by the international community when it is convenient. The U.N., which has through various organs decried amnesty, has also helped broker several international impunity deals, including the 2003 exile of Charles Taylor. Nor is this necessarily a violation of conventional law. The treaties often spoken of as creating an nonderogable obligation to prosecute are far from clear on this point (with the exception of the Geneva Convention, which does establish a duty to investigate and punish “grave breaches”). As for state practice, amnesties and other forms of legalized impunity are commonplace, and for every recent case of states rejecting a past amnesties, one can point to another case of state currently in conflict seeking to trade justice for peace.

Thus the acceptability of amnesty, exile and so forth in the Palestinian situation is probably consistent with international law (except to the extent they may be guilty of “grave breaches,” itself a complex legal question). Indeed, it helps show than an absolute bar on trading justice for peace may sometimes come at a price few are willing to pay.

But while Europe and the U.S. have all in recent years sponsored or supported various amnesty schemes, some scholars and human rights organizations have been vocal and consistent critics. I have not heard their position on Palestinian case (which, along with the Uganda/ICC situation, happen to be the motivating hypotheticals of my article!).

http://opiniojuris.org/2007/07/26/forgiving-amensty/

5 Responses

  1. I am sympathetic to your broader contention that an absolutist position on amnesties is unwise; however, Israel’s recent prisoner release and the contemplated amnesty for the Al-Aqsa Brigades strike me as poor examples.

    As you note, the prisoners released do not have “blood on their hands”, so it would seem unlikely that have committed any crime that even the most ardent opponents of amnesties believe to be “un-amnestiable”. Moreover, it’s not clear that commuting someone’s sentence would invariably be tantamount to amnesty.

    Indeed, international law <i>encourages </i> states to grant amnesty for the unprivileged participation in hostilities insofar as this participation did not involve war crimes. (Evidently, Protocol II, Art. 6(5) does not apply to this situation, but I don’t think anyone would argue that it would violate international law to act as if it did.)

    As for the Al-Aqsa Brigades amnesty, as I understand the plan, it too would not involve the extinction of any possible criminal liability for war crimes and the like but would merely consist of a commitment by the government of Israel to stop trying to capture or kill them in exchange for the same.

  2. I agree with WJA that this week’s prisoner release may not include any “unpardonable” prisoners. I was using it as a timely example for the broader question, especially since Abbas wants more serious terrorists freed.

    Israel has released much larger numbers of prisoners many times before, either for “free” or in exchange for a few Israeli soldiers or their remains. Sometimes these exchanges have involved major terrorists, such as the head of Hamas. And I believe more such releases would be welcomed by the international community. For example, after Israel’s withdraw from Gaza, there have been suggestions that it could further show its good faith by releasing Marwan Barghouti, who has served just three years of multiple life sentences for his involvement in many fatal attacks against civilian targets.

    Commuting a sentence is partial impunity. How much it resembles amnesty depends on how much is left on the sentence.

    Given the increasing pressure on Israel, further prisoner releases are likely. I agree we could distinguish between small fry and bigger fish, with the former not raising any international law questions. But would the chorus of international human rights groups that decry every amnesty complain of one for Barghouti?

    As for the Second Protocol to the Geneva Conventions, I think the position of amnesty critics is that it gives no license to give impunity for grave breaches. In any case, it only applies to “the end of hostilities” and thus has no bearing to interim measures such as Israel’s frequent “confidence-building” releases of prisoners.

  3. Kr. Kontorovich I have a prooblem with this: “trading justice for peace”. If you allow those that have commited attrocities to enjoy their impunity, what will deter them of not continue to act in the same way in the future? The colombian paramilitary did recieve amnesty, and yesterday, they decided to continue with their murderous campaign.

    It has also been the case (Uruguay, Argentina and Chile for example) that once the military are removed from power, they continue to pressure those civilian administration in order to achieve whatever goals they seek. Thus it seems to be peace with a gun on their heads. Could we really consider that “peace”?

  4. I think that even in cases of rights abuses the importance of fair trials remains quite important. As Israel allows certain questionable methods, it is not so much calling for amnesty as for the release of prisoners not afforded certain rights that they should have been.

    Of course, I think the idea that somehow “norms” are more important than the reality on the ground is pretty nonsensical. Is anyone going to be less ruthless because they fear IL? Suicide bombers certainly won’t care, and even national leaders know they have nothing to fear unless they lose power – which in their minds is only likely to happen if they are not repressive. I don’t see anyone suggesting we invade Zimbabwe.

  5. Many international lawyers, particularly those involved in human rights, maintain that for certain serious international crimes, amnesty, exile, plea bargains and other forms of negotiated justice are impermissible. This is so even when the alternative to amnesty be the perpetuation of a murderous regime, or end a bloody civil war.

    When chosing whether to punish one man for deaths that can no longer be avoided, or avoid the death of many innocents, I find the course of action to be clear.

    What argument do they present besides a possible perverse incentives view?

    While I understand the temptation to have your cake and eat it to, one can only revoke amnesty so many times before no one has the inclination to try it.

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