There is considerable
confusion about ‘amnesty’ in East Timor.
Following South Africa’s precedent and responding to high level talk
about amnesty for militias, some have concluded that reconciliation necessarily
means granting amnesty and are therefore hostile to the new CRTR because it is
seen to be an instrument of absolution from wrong-doing and responsibility.
It is important, therefore, to state clearly that reconciliation and
amnesty are not the same thing. East
Timor’s CRTR is based on the principle of individual accountability and will
not offer amnesty.
The following paper is
intended to help clarify the issue by providing clear definitions of the
relevant technical/legal terms, the arguments for and against amnesty (including
why the UN rejects the notion), and how amnesty has been used in other
Amnesty (from the Greek amnestia, ‘forgetfulness’) is the act
of ‘forgetting’ a crime. A
person who has been granted amnesty will not be prosecuted for a crime covered
by the amnesty. The legal effect of
an amnesty is to treat the crime as if it had never occurred and to extinguish
the person’s criminal as well as civil liability.
Because prosecutions do not take place, criminal responsibility for those
acts covered by the amnesty is never established.
Amnesties have been granted on both a collective basis (a ‘general
amnesty’) and on the basis of individual applications.
Self-amnesty is the granting of amnesty by government officials to
themselves. An amnesty may be
either overt or implied. It is
express when so declared in direct terms; it is implied when a treaty of peace
is made between contending parties, or when a government simply fails to act.
The right to grant amnesties is usually held by a head of state or
A pardon is granted only after judgment and conviction.
The effect of a pardon is to exempt the convicted criminal from
punishment. Pardons are usually
only given to individuals on a case-by-case basis.
The conviction remains unaffected – only the punishment is remitted and
this may be done in whole or in part. The
right to grant pardons is usually given to the head of state.
Immunity is the freedom or exemption from arrest and/or legal
proceedings. It usually refers to
the exemption of privileged groups such as sovereign leaders, members of
parliament or diplomats.
Amnesties for international
war crimes, crimes against humanity and genocide are not
permissible under international human rights law.
The status under
international law of amnesties issued for war crimes committed in internal
armed conflicts is less clear. However,
recent case law of the International Criminal Tribunal for the former Yugoslavia
makes clear that such crimes are international crimes subject to universal
jurisdiction. The statutes of the
International Criminal Tribunal for Rwanda and the International Criminal Court
give those courts jurisdiction over serious war crimes/violations of
humanitarian law committed during internal armed conflicts.
Amnesty for gross
violations of human rights, including torture, disappearances, and
extra-judicial executions, may be incompatible with some human rights
conventions and may also undermine principles endorsed in General Assembly
are permissible under international human rights law so long as the pardon does
not deny effective remedy to the victim. A
pardon issued the day after a convicted murderer has begun to serve an extended
sentence, for example, would not constitute effective remedy.
The UN Guidelines for
United Nations Representatives on Certain Aspects of Negotiations for Conflict
Resolution state that:
amnesty may be made on behalf of different elements. It may be necessary and proper for immunity from prosecution
to be granted to members of the armed opposition seeking reintegration into
society as part of a national reconciliation process. Government negotiators may seek endorsement of self-amnesty
proposals; however, the UN cannot condone amnesties regarding war crimes, crimes
against humanity and genocide or foster those that violate relevant treaty
obligations of the parties in this field.’
Precedent under local
The concept of amnesty does not feature in local justice processes in
East Timor. In contrast, such
processes typically involve the perpetrator facing up to the crime and making
amends by compensating the victim or the victim’s family.
There is a consensus amongst observers of local justice processes across
East Timor that local communities keep very clear account of ‘who did what’
and that disputes over political crimes and offences, like all others, will
remain unresolved unless justice is seen to be done.
At a minimum, the issuing of amnesties would not remove the expectation
that the perpetrators or their families should compensate the victim at the
local level. Communities will
pursue this until justice is done. Some
local leaders have pointed to the risk that failing to provide for acceptable
processes of justice may lead to broader community upheaval.
No precedents for the granting of amnesty or pardon appear to have been
set under Portuguese rule, although the Portuguese Constitution (1974, Art
137(f)) allowed for the President to grant pardons and commute sentences after
having heard the government.
Amnesties and presidential
pardons are a feature of the Indonesian legal system. Article 14 of the 1945 Indonesian Constitution provided for
Presidential authority to grant clemency, amnesties, absolutions, and
restoration of rights. This was
revised in October 1999 to authorise the President to grant amnesty and
abolition after taking into account House of Representatives considerations and
to grant grace and restoration of rights after taking into account Supreme Court
In 1977, Soeharto offered
an amnesty to Fretilin troops, which they did not accept.
Xanana Gusmao and other East Timorese political prisoners were released
in 1999. Pardons have also been
offered to senior TNI officers for atrocities in East Timor – for example the
offer by Wahid in 2000 of a pardon to Wiranto should he ever be convicted, for
example. East Timorese leaders have
made offers of amnesty to their opponents in the past – including by Fretilin
to UDT in 1975 and by Xanana Gusmao periodically during the independence
struggle, including to militia leaders in 1999.
On current indications (24/11/01) the Constitution will include provision
for a presidential pardon, but not general amnesty.
Amnesty lies at one end of
the range of justice instruments available to decision-makers in post-conflict
transitions. Amnesties are
generally adopted by two groups – those who issue self-amnesties to avoid
prosecution, and those who see amnesty as a necessary compromise to ensure
stability and national unity.
Arguments used in
support of issuing amnesties include:
Prosecutions may be destabilising
for fragile transitional governments, particularly where the new government is
reliant on or must cooperate with elements of the old regime.
Perpetrators may resist punishment, resort to violence, or conduct a
coup. Supporters of amnesty argue that stability must be the number
one priority - it is better to compromise on justice in the short term by
granting amnesty, in order to meet the longer-term objectives of peace,
stability, and respect for human rights.
Amnesties may improve prospects
for survival of the new regime, by strengthening its relationship with officials
of the old regime, particularly the military.
Amnesties may be the only
practical measure available in countries where the judicial system lacks
sufficient capacity to conduct prosecutions.
granting amnesties include:
Amnesty condones impunity.
By bringing perpetrators to justice, a government sends a powerful
message of deterrence that human rights violations will not be tolerated and
that those who commit such crimes will be held accountable.
Amnesties devalue the rule of law,
by signaling that society condones the breaking of rules, particularly those
designed to protect the vulnerable. Bringing
perpetrators to justice helps establish the legal underpinnings of
The granting of amnesty may result
in widespread public disillusionment with and suspicion of the new government,
weakening its legitimacy.
General amnesties remove any
possibility of individualizing guilt. The offering of amnesty to groups or classes may intensify
sectoral hatred in deeply divided societies through collective absolution from
Amnesties may entrench the power
of human rights violators, either by allowing them to stay in government or by
leaving opponents of the government - particularly the military - with the power
to undermine the new leaders.
The granting of amnesty without
truth-seeking removes the opportunity to create a concrete and public record of
events, opening up the potential for governments or other elements to distort or
deny the facts. Revealing
systematic and institutional patterns of violence helps dismantle the
institutional support base of the perpetrators, instills a sense of
accountability on the part of the new government, and helps the healing process.
By putting the rights of both the
state and the perpetrators before those of the victims, amnesty deprives victims
of any sense of justice or catharsis, particularly if not accompanied by some
form of reparation. This may leave
victims politically alienated and undermine efforts at social recovery and
Amnesty for serious crimes
violates international human rights law.
In 1987, in response to the report of the Truth Commission that named
over 40 high-level officials responsible for serious abuses, the President of El
Salvador introduced a bill to parliament to award a ‘broad, absolute and
unconditional amnesty’ to ‘all those who in one way or another participated
in political crimes, (or) crimes with political ramifications.’ Parliament passed this law five days after the publication of
the Truth Commission Report.
In 1978, the Chilean military granted itself a broad amnesty that covered
most of its crimes from 1973 (when it took power) until 1978. The amnesty remained in effect even after the military lost
power in 1990. Notwithstanding the
amnesty, trials have been conducted regarding the 1973-78 atrocities, with
courts interpreting the amnesty law to prohibit punishment for crimes only
(similar to a pardon), rather than prohibiting the trials to establish criminal
The Mozambique Parliament adopted a general amnesty for ‘crimes against
the state’ 10 days after the signing of the 1992 Peace Agreement, which
brought an end to 16 years of armed conflict between the warring parties in
became the central focus of the transition to a new political order and there
has been little call for accountability for past crimes.
The Lomé Peace Agreement of July 1999 provided a general amnesty for all acts
committed during the armed conflict. In
signing the agreement, the UN stated that it did not recognize amnesty for
genocide, crimes against humanity, war crimes, and other serious violations of
international law. The amnesty was reconsidered following the breakdown of the Lomé
Agreement in mid-2000, but remained part of Sierra Leonean law.
In response to a request from the Sierra Leone government, the UN passed
a resolution in August 2000 to establish a Special Court to try human rights
The South African Truth and Reconciliation Commission was given the power
to grant amnesty for political crimes to those individuals who fully disclosed
all acts in respect of which amnesty was sought.
When granted, the amnesty exempted individuals from criminal prosecutions
and barred civil suits for damages. It
also indemnified the state from liability that might flow from acts committed by
those persons granted amnesty.
Prepared by Carolyn Bull for Interim Office, Commission for Reception, Truth and Reconciliation in East Timor, November 2001
Copyright © 2001 Commission for Reception, Truth and Reconciliation in East Timor