Accountability for War Crimes - Does a National Investigation Leading to an Amnesty Bar a Prosecution by the International Criminal Court?

Sammanfattning: This thesis investigates whether national amnesties for war crimes constitute an inadmissibility ground for a case in the International Criminal Court (hereinafter the ICC). The essence of this problem lies in the conflict between State sovereignty and international cooperation in the fight against impunity for war crimes and consequently between bilateral obligations and obligations erga omnes. My intention with the thesis is to find the balance between these standards. I find it important to resolve the problems of the current topic for several reasons. The granting of amnesties is a far from uncommon method of coming to terms with past conflicts. However, the Rome Statute of the ICC (hereinafter the Rome Statute) is silent regarding amnesties. Consequently the ICC will eventually have to make a decision whether a case is admissible before the court when an amnesty will be or has been granted to an alleged perpetrator. The lack of certainty in this case could result in negative effects for the ICC, such as arbitrary and politicised decisions and non-equality between States. Also nationally in the State that has admitted amnesties problems such as difficulties in the reconciliation process and in the establishment of the rule of law could occur. I have come to a conclusion to the current problem mainly through a theoretical discussion. However, to gain a complete picture of the problem I find it important to understand and recognise the practical consequences of different reconciliation methods. The practical difficulties of an absolute prohibition of amnesties are demonstrated in this thesis by case studies from South-Africa, Rwanda and Sierra Leone. In the more theoretical part of my investigation of the compatibility of war crimes' amnesties with international law I look to general international law and the Rome Statute. In general international law there are mainly three possible obstacles for the granting of amnesties for war crimes. They are found in international humanitarian law, in international customary rules of a peremptory character and in international human rights law. States have decided, through treaties and international customary law, upon an obligation to prosecute serious breaches of international humanitarian law. This obligation to prosecute would naturally constitute an obstacle for amnesties for the crimes in question. The progress made in international criminal law relating to a stronger international cooperation is directly linked with the special character of serious war crimes. This leads us to another possible obstacle, which could be the legal consequence that the special character of these crimes attaches. Many international legal scholars would argue that a peremptory character of war crimes logically leads to an obligation upon all States as against to all other States to ensure the prosecution of the alleged perpetrators of these crimes. This comprehension is however far from undisputed. A third bar from accepting amnesties for war crimes could be that this would violate international human rights law, more precisely the victims' right to justice. My investigation of problems related to the granting of amnesties for serious war crimes suggests that the point of departure is that amnesties are not allowed for such crimes. An investigation of the principle of complementarity in the Rome Statute seems to lead us to the same conclusion. Although the actual wording of the article is rather ambiguous, an extended interpretation of the meaning of the article seems to refrain from using amnesties for war crimes. The main purpose of the ICC is to fight impunity. Considering the creation of the court the initiators of the tribunal seem to believe that prosecution would best fulfil this purpose. Further, the court shall, according to article 21 of the Rome Statute, apply treaties and principles or rules of international law if the statute is not guidance enough when deciding on a case. Therefore, the conclusion of the investigation of the principle of complementarity of the Rome Statute is reached in conjunction with the conclusion of general international law made above. It essentially declines that amnesties is an inadmissibility ground for the ICC. As a conclusion I have tried to find a compromise between the different interests at stake with the expectation to show respect for both sides of the problem. I have included a definition of the exceptions to prosecution in certain particular occasions, which should be explicitly and thoroughly defined. The definition describes the type of amnesty that should be applied and in what situation such application would be relevant. Hopefully by employing such limits a balance could be struck between State sovereignty and the fight against impunity.