Jacobs: Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals

Dov Jacobs (European Univ. Institute) has posted Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals (in The Fragmentation of International Criminal Law, forthcoming). Here's the abstract:

Amnesties have been in debate for some time now in international circles.From an international law perspective, it should be pointed out something that is sometimes lost in the vast literature on the topic in international legal discussions: there is virtually no mention of amnesties in international documents. As we will see, in the dense web of human rights and international humanitarian law treaties, there is an explicit mention of amnesties in only one provision: an additional protocol to the Geneva Conventions relating to non-international armed conflict. This is mostly true of international criminal law. Even if some international(ized) tribunals include provisions on amnesties, justified by a particular local situation, the Statute of the International Criminal Court makes no mention of them. This leads to the somewhat peculiar situation that entire theories are constructed on the place of a concept in a legal order that makes hardly any reference to that concept in its constitutive documents. Despite this, or maybe because of this, amnesties have come up in relation to various fields of international law (human rights, international humanitarian law, and international criminal law) and in relation to various concepts of international law (most notably the duty to prosecute). This has created a risk of fragmentation on the issue that might threaten the unity of the concept. To take stock of this fragmented situation, we have chosen not to embark on a general theory on amnesties. Rather, we will try to answer a simple question: how must international criminal tribunals deal with amnesties for international crimes? The advantage of such a specific question is that it will focus the discussion, while still allowing us to draw a picture of the fragmented debate on amnesties in international.

The paper aims at defragmenting the debate on amnesties by decomposing the various levels at which it is discussed. First of all it looks at amnesties as perceived in various areas of international law, specifically human rights law and international humanitarian law. It then looks at how different international criminal tribunals have dealt with the question of amnesties. It then considers vertical fragmentation (national courts vs International courts) and pluridisciplinary fragmentation (perceptions from law, sociology, philosophy and political science). In a final section, the article proposes to see what are the relevant aspects of the debate specifically for international tribunals and suggests that we should move away from issues of legality to consider issues of recognition, which make the debate far more easy to solve.