Amnesty Law - History

History

Many countries have been plagued by revolutions, coups and civil war. After such turmoil the leaders of the outgoing regime that want, or are forced, to restore democracy in their country are confronted with possible litigation regarding the "counterinsurgency" actions taken during their reign. It is not uncommon for people to make allegations of human rights abuse and crimes against humanity. To overcome the hazard of facing prosecution, many countries have absolved those involved of their alleged crimes.

Amnesty laws are often also equally problematic to the opposing side as a cost-benefit problem: Is bringing the old leadership to justice worth extending the conflict or rule of the previous regime, with an accompanying increase in suffering and casualties, as the old regime refuses to let go of power?

Victims, their families and human rights organisations—e.g., Amnesty International, Human Rights Watch, Humanitarian Law Project—have opposed such laws through demonstrations and litigation, their argument being that an amnesty law violates local constitutional law and international law by upholding impunity.

Providing amnesty for “international crimes”—which include crimes against humanity, war crimes and genocide—is increasingly considered to be prohibited by international law. This understanding is drawn from the obligations set out in human rights treaties, the decisions of international and regional courts and the law emerging from long-standing state practice (customary international law). International, regional and national courts have increasingly overturned general amnesties. And recent peace agreements have largely avoided granting amnesty for serious crimes. With that in mind, the International Criminal Court was established to ensure that perpetrators do not evade command responsibility for their crimes should the local government fail to prosecute.