The Transitional Justice Institute at the University of Ulster in Northern Ireland has published a set of guidelines, the Belfast Guidelines on Amnesty and Accountability as a resource for all role players involved in brokering or implementing peace agreements.
The guidelines have been authored by a group of resource persons led by Louise Mallinder and Tom Hadden and deal with issues of who should be held accountable for international crimes and human rights violations and whether the use of amnesties conflicts the duty of states to prosecute. Download...
The authors assert, “We are calling for the Belfast Guidelines to be adopted into international practice, to ensure that amnesties are made more compliant with international law.”
Key findings and recommendations include:
- States have multiple legal obligations to ensure that violations are properly investigated, that those responsible are prosecuted, that victims are afforded remedies, that continuing abuses are prevented andthat human rights are respected in the future.
- Amnesties can be used to facilitate selective prosecution strategies, or can be made conditional on participation in truth commissions, public inquiries, restorative justice, and reparations.
- Illegitimate amnesties are those that are unconditional, that prevent investigations and ensure impunity for those most responsible for serious crimes.
- Legitimate amnesties are those designed to ensure the sustainable protection of human rights, and that require offenders to engage with measures to ensure truth, accountability and reparations.
- The criteria for qualifying for amnesty should be clearly specified and limited in scope to minimise the potential for conflict with any obligation under international law.
- Special attention should be paid to the treatment of children responsible for acts that may qualify as crimes.
- There should be public engagement in the design of amnesty processes and steps should be taken to ensure victims can participate in decisions to grant amnesty in individual cases.
- Where a conditional amnesty is revoked, prosecutions should be pursued for the original crime and any subsequent offences.
- Where an amnesty bars civil liability, administrative programmes should be considered to provide reparations and remedies for victims.
The particular concerns of Khulumani Support Group relate to the recommendation for victims to be provided with opportunities to participate in decisions to grant amnesty in individual cases - a situation that did not pertain to the South African Truth and Reconciliation Commission's mandate; the recommendation for amnesties to be made conditional on participation in truth commissions, public inquiries, restorative justice, and reparations, given the ways that most perpetrators of politically motivated crimes who were granted amnesty, have failed to try to provide any forms of restitution to their victims; and for remedies for victims to be provided where an amnesty has barred civil liability, as pertained to the South African TRC.