Amnesty, Serious Crimes and International Law

Global Perspectives in Theory and Practice

Josepha Close

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351180214
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

Amnesty, Serious Crimes and International Law examines the permissibility of amnesties for serious crimes in the contemporary international order. In the last few decades, there has been a growing tendency to consider that amnesties are prohibited in respect of certain grave crimes. However, the question remains controversial as there is no explicit treaty ban and general amnesties continue to be frequently issued in post-conflict and transitional contexts. The first part of the book explores the use of amnesties from antiquity to the present day. It reviews amnesty traditions in ancient societies and provides a global picture of modern amnesties. In parallel, it traces the development of the accountability paradigm underpinning the current prohibitive stance on amnesties. The second part assesses the position of modern international law on amnesties. It comprehensively analyses the main arguments supporting the existence of a general amnesty ban, including the duty to prosecute international crimes, the right to redress of victims of human rights violations, international standards and trends in state practice, and the mandate of international criminal courts. The book argues that, while international legal or policy requirements restrict the freedom of states to extend amnesty in respect of serious crimes, or the effectiveness of amnesty measures in preventing the prosecution of such crimes, these restrictions do not add up to an absolute and universal prohibition.

Part 1

The use of amnesties from antiquity to today

1 Ancient amnesties

Introduction

Amnesty has been used for millennia in diverse types of societies, the malleable nature of the mechanism having permitted its adaptation to different historical periods and legal systems. While ancient amnesties varied in terms of their name, form and characteristics in different civilisations, they were largely issued for the same range of purposes. This chapter examines their main features and the reasons for which they were adopted in order to assess whether there is some continuity between ancient and modern amnesties. The first section explores the origins of the mechanism in pharaonic Egypt, classical Athens, the Roman world and ancient China. The second section traces the development of similar amnesty traditions in France and England throughout the second millennium. It also reviews early clemency practices in the United States. The last section presents a typology of ancient amnesties identifying their common features and classifying them in different categories depending on their object and purpose.

1. The origins of amnesty

This section examines how the mechanism of amnesty was used in ancient civilisations in Egypt, Athens, Rome and China. These early forms of clemency are at the root of the modern notion of amnesty and have shaped the ways in which the mechanism was used in later times.

Early Egyptian amnesties

The most ancient amnesty provision of which we have some records was part of a treaty of peace concluded by Ramesses II, Pharaoh of Egypt, and Hattusili, King of Hatti, in the aftermath of the battle of Kadesh.¹ Following a military campaign in Syria, Ramesses II undertook the invasion of Kadesh, a mighty city of the Hatti kingdom. The ensuing battle between the Egyptian and Hittite armies did not have any conclusive result, so that animosity subsisted between the two nations for several years.² This period of antagonism was brought to an end by the conclusion of one of the first recorded international peace treaties.

Historians have placed the battle of Kadesh in 1296 BC and the subsequent peace treaty in 1280 BC.³ The agreement’s first operative clauses stated that the Egyptian and Hittite sovereigns would renew peaceful relations and grant each other mutual assistance in cases of invasion or rebellion.⁴ The treaty also provided for the mutual extradition of fugitives and the amnesty of extradited people.⁵ The amnesty provision was translated as follows:

If one man flee from the land of Egypt, or two, or three, and they come to the great chief of Hatti, the great chief of Hatti shall seize them and shall cause them to be brought back to [Ramses], the great ruler of Egypt. But as for the man who shall be brought to [Ramses], the great ruler of Egypt, let not his crime be charged against him, let not his house, his wives or his children be destroyed, [let him not] be [killed], let no injury be done to his eyes, to his ears, to his mouth or to his legs, let not any [crime be charged] against him.

Likewise, if a man flee from the land of Hatti, be he one, be he two, or be he three, and they come to [Ramses], the great ruler of Egypt, let [Ramses], the [great] ruler [of Egypt, cause] them to be brought to the great chief of Hatti, and the great chief of Hatti shall not charge their crime against them, and they shall not destroy his house, his wives or his children, and they shall not kill him, and they shall not do injury to his ears, to his eyes, to his mouth or to his legs, and they shall not charge any crime against him.⁶

Another amnesty was declared in Egypt in the period between 1166 and 1160 BC, supposedly to celebrate the accession of Ramesses IV to the throne.⁷ The part of the paean containing it has been translated as follows:

A beautiful day! Heaven and Earth rejoice, for Thou are the great Lord of Egypt. Those who had fled have returned to their home-towns; those who were in hiding have come forth. The hungry are sated and rejoice, the thirsty are drunk. The naked are clothed in fine linen, the ragged wear fair garments. Those who were in bonds are free again; those who were in chains rejoice. The rebels in this land are become free men once more. High Niles are come forth from their caverns and make glad the heart of the people.⁸

In the Ptolemaic period (305–30 BC), amnesties were proclaimed ‘at the beginnings of periods when a new reign or new dynastic arrangements held the promise of peaceful and beneficent rule succeeding internal strife’.⁹ Four amnesties promulgated in this period have been identified: the first granted by Ptolemy V in 197 BC to celebrate his anniversary, the second by Ptolemy VI in 163 BC to reconcile the divided royal family, the third by Ptolemy VIII in 145–144 BC after a period of unrest linked to the death of Ptolemy VI, and the last by the same pharaoh in 118 BC in an attempt to end the continuing dynastic strife.¹⁰ An extract of the last of these measures illustrates how Ptolemaic amnesties were formulated:

King Ptolemy and Queen Cleopatra the Sister and Queen Cleopatra the Wife proclaim an amnesty to all their subjects for errors, crimes, accusations, condemnations, and charges of all kinds up to year 52, 9 Pharmouthi, except to persons guilty of wilful murder or sacrilege. And they have decreed that persons who have gone into hiding because they were guilty of theft or subject to other charges shall return to their homes and resume their former occupations, and their remaining property shall not be sold.¹¹

It thus appears that amnesty was an accepted, if not common, practice in pharaonic Egypt. The mechanism was principally used for celebration, pacification and reconciliation purposes on certain festive occasions or in connection with periods of war or unrest. Under the Ptolemaic dynasty, amnesties were proclaimed by the sovereigns among a list of royal boons as a way of discharging their duty towards their people to rule benevolently and keep the peace.¹² Some of these amnesties excluded certain crimes on account of their gravity, as shown in the extract quoted above.

Amnesty in classical Athens

Historians have identified traces of five Athenian amnesties in the writings of Plutarch, Andocides, Isocrates, Aristotle and Xenophon.¹³ These measures were all enacted in times of national emergency, when the Athenian city-state was threatened by a foreign attack or internal disturbances. They were used as a political expedient to reunite and strengthen the nation before, during or after an armed conflict or civil strife.

The earliest of these amnesties was issued by Solon, whose archonship has been placed in the period between 594 and 590 BC.¹⁴ He was mandated to draw up a new legal code and reform the Athenian system in order to resolve deep-seated economic and social tensions threatening to provoke a civil war. One of Solon’s laws, as preserved by Plutarch, offered amnesty to disfranchised citizens with certain exceptions:

All such as have been banished or detected of naughty life, before Solon made his laws, shall be restored again to their goods and good name, except those which were condemned by order of the council of the Aeropagites, or by the Ephetes, or by the king in open court, for murder, and death of any man, or for aspiring to usurp tyranny.¹⁵

One century later, shortly before the battle of Salamis against the Persian army (480 BC), an amnesty was granted by the archon Themistocles to Athenian exiles.¹⁶ From the speeches of Andocides subsists an account of this amnesty:

When Xerxes, the king of Persia, set out on his now famous expedition against Greece, the Athenians became alarmed at the magnitude of his preparations and the dangers threatening them. Consequently, they decided to recall their exiles and to reinstate them in all their civic rights, giving all an equal share in the common duties as well as in the common dangers. Thereupon they exchanged pledges and swore sacred oaths. Relying on their valor, the Athenians placed themselves in the forefront of all the Greeks and encountered the Persians at Marathon. After they had a...