AMNESTY

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 countries.   

Amnesty:  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 parliament. 

Pardon:  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:  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 Resolutions.

Pardons 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:

‘demands for 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 justice systems:  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. 

Precedent under Portuguese/Indonesian rule:  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 considerations.  

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.

East Timor Constitution:  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. 

Arguments against 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 accountability. 

·        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 guilt. 

·        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 reconciliation. 

·        Amnesty for serious crimes violates international human rights law.   

El Salvador.  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. 

Chile:  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 responsibility. 

Mozambique:  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 Mozambique.  ‘Reconciliation’ became the central focus of the transition to a new political order and there has been little call for accountability for past crimes.

Sierra Leone: 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 abuses. 

South Africa:  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