The Rome Statute of the International Criminal Court (ICC) does not contain a provision on amnesty. It is therefore not explicitly settled as to whether a national amnesty law barring the prosecution of persons accused of crimes falling within the jurisdiction of the ICC would be recognised by the Court or whether the Prosecutor could disregard such an amnesty law and continue with an investigation and prosecution of a person subject to the amnesty.
Interpretation from the object and purpose of the ICC Statute
The principal objective of the Rome Statute – to end impunity for the perpetrators of the most serious crimes of concern to the international community by ensuring their effective prosecution – strongly suggests that a national amnesty law would be incompatible with the primary objective of the Court. It is also clear that a national amnesty law would have no binding effect upon the ICC. As a treaty-based international organization, the ICC is not bound by any national laws. Furthermore, States are not bound to recognise amnesty laws of third States. In particular, since under international law, a national law cannot conflict with a State’s obligations under binding treaties, States Parties of the ICC would not be able to enact or recognise a national amnesty law that conflicted with their obligations to cooperate with the ICC.
The ICC has jurisdiction over a specific and limited set of international crimes: genocide, war crimes and crimes against humanity [and the crime of aggression]. States are under a duty to prosecute genocide and grave breaches of international humanitarian law under both treaty law and customary law. Amnesties covering such crimes would therefore not be valid. Furthermore, customary international law entitles all States to prosecute perpetrators of other serious violations of the laws and customs of war and crimes against humanity, making amnesty laws covering such atrocities of questionable legality.
Nonetheless, several provisions of the Rome Statute have been interpreted as allowing the recognition of certain amnesty laws.
First, it has been argued that the Court may decide that a case is inadmissible under Article 17 because an amnesty has been granted following an investigation. Article 17(1)(b) provides that the ICC will declare a case inadmissible where the State that has jurisdiction over the case has investigated and decided not to prosecute the accused, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. One of the factors considered in deciding whether a State is unwilling to prosecute genuinely is whether the decision not to prosecute was taken with the purpose of shielding the person from criminal responsibility for crimes within the jurisdiction of the Court. Therefore an amnesty granted with the purpose of shielding a person from criminal responsibility might be considered as a reason for the ICC to declare a country as unwilling to prosecute, thereby vesting itself with jurisdiction over the crime.
The second possibility to recognise an amnesty under the ICC Statute arguably emanates from the determination of the Prosecutor that there is no reasonable basis to proceed to an investigation under Article 53, based on the consideration that there are substantial reasons to believe that an investigation would not serve the interests of justice. The full legal scope of the term “in the interests of justice” has not been established as yet in ICC jurisprudence and it is thus unclear at this stage whether jeopardising an amnesty law as part of a country’s transitional justice framework by prosecuting a person subject to the amnesty would not be considered in the interests of justice. However, since the primary objective of the ICC is to provide justice in a purely criminal law sense, it may be unlikely that a broader view of justice, encompassing other forms of accountability such as a truth commission would satisfy the Prosecutor in this respect.
Thirdly, a possibility for the ICC to recognise an amnesty has been inferred from Article 16, which grants the Security Council, acting under Chapter VII of the UN Charter, the power to defer proceedings for a period of 12 months if it so requests. The provision gives the Security Council the power to stay a prosecution if it considers that such a prosecution would threaten international peace and security. Since amnesty laws are often used to help end conflicts and broker peace deals, it has been suggested that Article 16 allows the ICC to give recognition to amnesty laws. However, it should be borne in mind that such measures are temporary and therefore any de facto recognition of an amnesty law under Article 16 would be limited in time.
A lack of clarity as to the possibilities of recognising amnesties under the ICC Statute is likely to prevail until case law of the ICC has considered the matter. However, due to the fundamental purpose of the ICC to prosecute perpetrators of international crimes, the prospect of negotiating impunity would no longer seem viable for crimes in the ICC subject-matter jurisdiction, and States parties to the ICC Statute must proceed with utmost caution when considering any laws impacting upon the prosecution of such crimes.
This article was written by Yasmin Naqvi. Yasmin is the author of the book “Impediments to Exercising Jurisdiction over International Crimes”, published by TMC Asser Press, 2010. She can be contacted at firstname.lastname@example.org.