Bypassing the Prohibition of Amnesty for Human Rights Crimes under International Law: Lessons Learned from the Burundi Peace Process
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| Author | Stef Vandeginste |
| DOI | 10.1177/016934411102900203 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 29/2, 189–211, 2011.
© Netherlands I nstitute of Human Ri ghts (SIM), Printed in the Net herlands. 189
ByPAssInG tHe PRoHIBItIon oF AMnesty
FoR HUMAn RIGHts CRIMes UnDeR
InteRnAtIonAL LAw: Lessons LeARneD
FRoM tHe BURUnDI PeACe PRoCess
S V*
Abstract
Focusing on the ca se of Burundi, this article analyses the eectiveness of the
international prohibition of amne sty for ser ious human r ights crimes at the nation al
level, in the context of complex war-to-peac e transitions based on power-sh aring deals
between former opponents. On the one hand, the amnesty prohibition ha s cl early
aected Burundi’s peace proce ss and its proposed transitional justice process. e
prohibition found its way into national legislation and no amnesty was g ranted for
genocide, crimes against humanity and war crimes. roughout its involvement with
the Bur undian peace process, the United Nations has systematically opposed the u se
of amnes ty legislation that does not respect the cons traints imposed by international
law. On the other hand, imperatives of political expediency and the desire to safeguard
short ter m political stability have given rise to the establishment and creative use of a
sophisticated bypassing mechanism. rough the combination of limitations imposed on
the jurisdiction of the national criminal justice system, the use of temporary immunities
and the delayed establishment of proposed transitional justice mechanisms, the amnesty
prohibition has – so far – been most eectively circumvented. e case of Burundi oers
interesting insights into the limits of the g lobal ‘justic e cascade’.
1. INTRODUCTION
In his address to the Review Conference on the Internat ional Cri minal Court in
Kampala, Uganda in May 2010, United Nations (UN) Secretar y-General Ban K i-
moon stated that the world is witnessing the birth of an age of accountability wh ich is
* Stef Vandegi nste is a Postdoctoral Fellow of the Research Foundation – Flanders (FWO) at the
Faculty of Law and a part-ti me lecturer at the I nstitute of Development Policy and Manage ment,
University of Antwe rp, Belgium.
Stef Vandeginste
190 Intersentia
gradually replacing the old era of impunity. ‘In th is new age of accou ntability, those
who commit the worst of human crimes will be held responsible’,1 whatever their
rank or position. As par t of t hat new international context , it ha s for more than a
decade now been standard practice for the UN to no longer endorse peace agreements
that promise amnesties for genocide, war cri mes, crimes aga inst humanity or other
gross violations of human r ights.2 Such am nesties are genera lly considered to be
contrary to States’ obligations under various sources of international (huma n rights,
humanitaria n and criminal) law and a lack of endorsement by t he UN can be seen as
an indication for the exi stence of a prohibition of such amnesties under i nternational
law.
Among international legal scholars, however, opinions dier about the exact scope
of the amnesty prohibition.3 Also, litt le is known about the impac t of this trend on
the public interests the am nesty prohibition is supposed to serve, namely the act ual
reduction of impunity for human rights cri mes or its deterrent ee ct.4 However, it
is clear that the amnesty prohibition has, at the very lea st, aected the strategies of
1 United Nations, Secretar y-General, ‘An Age of Accountability’. Addre ss to the Review Confe rence on
the Internation al Criminal Court, K ampala, 31 May 2010, p. 2.
2 See, inter alia, United Nations, Security Counci l, Rep ort of the Secretary -General on enh ancing
mediation and its su pport activi ties, UN Doc. S/2009/189, 8 April 200 9, para. 36 ; United Nation s,
Securit y Counci l, e rule of l aw and transitional justice in conict and pos t-conict situations.
Report of the S ecretary-Gene ral, UN Doc. S/200 4/616, 23 Augu st 2004, para. 10; United Nat ions,
Guidance Note of the Se cretary-Gene ral. United Nations Approach to Transitional Justice, March
2010, p. 4; Oce of t he United Nation s High Co mmissioner for Human Rig hts, Rule-of- law tools
for post-con ict States. A mnesties, Genev a, 2009, p. 27. It is generally as sumed that t his policy wa s
inaugurate d around mid-1999, at the time of the U N involvement i n the negotiations lea ding up
to the Lomé pe ace accord for Sierra L eone, through a n internal cable of the UN Secret ary-General
addressed to al l UN representatives (Guidel ines for UN Representat ives on Certain Aspec ts of
Negotiations for C onict Resolution).
3 For some recent analysis of the scope of States’ duty to prosecute (and of the amnesty prohibition) and
views on what might possibly be considered as permissible am nesties (de lege lata or de lege ferenda),
see, i nter alia, Seibert-Fohr, A., Prosec uting Serio us Human Rights Vio lations, O xford Universit y
Press, Oxford, 2 009; Freeman, M., Neces sary Evils. Amnesti es and the Search for Justice, C ambridge
University Press, C ambridge, 2009; A mbos, K., ‘e Legal Fr amework of Transitional Justice: A
Systematic St udy with a Special Foc us on the Role of the ICC ’, in: Ambos, K. et al. (eds), Building
a Futu re on Peace and Justice: Studies on Transitio nal Justi ce, Peace and Development, Springer,
Berlin, 20 09, pp. 19–104; Malli nder, L., Amnesty, Human Rights and Politica l Transitions: Bridgin g
the Peace and Justice Divide, Hart , Oxford, 2008; and Orentlicher, D., ‘“Settli ng accounts” Revisited:
Reconciling Global Norms with L ocal Agency’, Intern ational Journal of Transitiona l Justice, Vol. 1,
No. 1, 2007, pp. 10–22. For an analysis o f the lead role of t he Inter-American human rights s ystem
in the de velopment of the globa l amnesty proh ibition, see inter alia Victims Unsil enced. e Inter-
American Human Rights System and Transitional Justice in L atin Ame rica, Due Proce ss of Law
Foundation, Washing ton DC, 2007.
4 While some authors contend that human rights prosecut ions aer transition surely have a deterrent
eect (K im, H. and Sikkink , K., ‘Expla ining the Deterrence Eec t of Human Rights Prose cutions
for Transitional Countries’, Internationa l Studi es Qua rterly, Vol. 54, No. 4, 2010, pp. 939–963),
others a rgue that ‘reliable empi rical k nowledge on t he state-level impact of transiti onal justice is
still li mited’ (oms, O., Ron, J. and Paris, R ., ‘State-Level Ee cts of Transitional Jus tice: What Do
We Know?’, International Jour nal of Transitional Justice, Vol. 4, No. 3, 2010, pp. 329–354, at p. 331).
To continue reading
Request your trial