Mohd Rameez Raza & Raj Shekhar
The Appeals Chamber of International Criminal Court’s (ICC) decision on the 9th of March, 2020 gave a nod to the admissibility of the case against Saif Al-Islam Gaddafi, son of Ex-Libyan Dictator Muammar Gaddafi, who has been under Amnesty and has been pardoned for his crimes in Libya, which even included the gruesome crimes of murder. This decision marks a crucial point in history because this is the maiden instance when ICC has made a full-fledged pronouncement as a court in this controversial issue of amnesty and that too at a time when the status of amnesty under International Law is being fiercely debated. The article aims to discuss the view of key International entities in the amnesty debate and then moves on to probe why ICC Appeals Chamber varied in its view from Pre-Trial Chambers and held the amnesty incompatible with the International Law. Further, the reluctance of ICC to put forth a firm stance on Amnesties has been related to the Russian-Ukraine Amnesty Issue. Based on such an analysis and comparison, a rational conclusion has been drawn.
AMNESTY AND ITS INTERNATIONAL PERCEPTION
Ever since the past few decades, with the rise of international crimes on Humanity, the applicability of amnesties to perpetrators has been questioned time and again. Out of this, the prevalent view that has emerged as a general rule is that amnesties cannot be provided in cases which involve serious international crimes as well as major violations of Human Rights by the party concerned. The Inter-American Court of Human Rights in the case of Barrios Altos v. Peru has spoken against such amnesties on the grounds that it violated non-derogable human rights recognized by international human rights law and was a scar on the humanity. Another coherence to this view was displayed by the United Nations (UN) which in its 2004 report on the rule of law and transitional justice in conflict and post-conflict societies, had rejected ‘any endorsement of amnesty for genocide, war crimes, or crimes against humanity’. This ‘anti-amnesty’ stance, however, has softened over the last decade with scholars proposing distinctions to be made regarding the different forms of amnesties considering various factors like objective, scope, and nature. The view has gained popularity and it can clearly be seen between the lines in the 2013 Belfast Guidelines on Amnesty and Accountability, which argues that amnesties may be necessary for certain circumstances and can be designed so as to be consistent with international law and human rights, and need not be banned absolutely.
GADDAFI ADMISSIBILITY CHALLENGE: HOW AND WHY IT WAS ALLOWED?
With his judgment on the Libyan situation, ICC has entered this debate on Amnesty too. The Court issued an arrest warrant against Saif Al-Islam Gaddafi in June, 2011 on charges of murder and other grave criminal charges. The crimes were allegedly committed while trying to suppress the rebellion against Gaddafi’s dictatorship in February 2011 and people were slaughtered for protesting. Seven years later, in June 2018 Gaddafi introduced an admissibility challenge basing it on two major arguments. Firstly, that he had already been tried and convicted by the Libyan Court, and hence by applying ne bis in idem principle in article 20(3) of the Rome Statute he couldn’t be tried for the same again. Secondly, as he has been released as per Libyan Amnesty Law, he cannot be punished.
The admissibility challenge of Gaddafi was turned down by ICC’s Pre-Trial Chamber I. Speaking on the first argument, it was observed by the court that judgment issued by a Tripoli Criminal Court awarding death sentence to Gaddafi was given in absentia and hence as per Libyan Laws was still open to appeal in Libyan Court of Cassation. Thus, it was not a final verdict but was open to appeal and hence did not constitute res judicata, thus ne nis in idem cannot come to the play here, as a final verdict is essential to this principle’s application. Responding to the second argument, the court considered Libya’s Law 6/2015 on General Amnesty did not apply to Gaddafi because the law did not have provisions to deal with crimes he was accused of committing. The Pre-Trial Chamber declared that ‘there is a strong, growing, universal tendency that grave and systematic human rights violations – which may amount to crimes against humanity by their very nature – are not subject to amnesties or pardons under international law’ and held that granting amnesty for the crimes alleged against the defendant ‘is incompatible with internationally recognized human rights’.
The Appeals Chamber’s judgment of 9 March 2020 gave its assent and validation to the Pre-Trial Chamber’s decision, but up to a limited extent. Though it accepted the court’s stance as far as the in absentia argument was concerned, it added the latter part of the judgment by noting that the pre-requisites for obtaining any benefit under the Law 6/2015, was the fact that the accused needed to demonstrate feelings of repentance, misery commit not to re-offend and take steps to help the victims of his atrocities, were not satisfied by Gaddafi. Also, the court pointed out the lapse on the defendant’s side by not providing any documents to prove a competent judicially reasoned decision in this regard. However, the part of judgment dealing with the compatibility of Amnesty Laws of Libya with International Law was termed as obiter dicta and it was held that to address the question of admissibility it was enough to state that international law is still too nascent to put forth a firm stance towards acceptability of deniability of amnesties.
GADDAFI CASE JUDGMENT VIS-À-VIS RUSSO-UKRAINIAN CONFLICT: THE POTENTIAL IMPACTS
The leaders of Russian and Ukraine met on 9th December, 2019 for the first time in Paris to try and resolve peacefully the already ongoing conflict of Eastern Ukraine. A few reports even suggested that the notes of the meeting were positive and could prove to be fruitful. What needs to be noted from this meeting is the potential talk for an Amnesty Law adoption by Ukraine, which was a commitment assumed by Ukraine in its Minsk Ceasefire Agreement, way back in 2014. This was to “ensure pardon and amnesty by enacting the law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Lugansk regions of Ukraine.” During the Paris Meeting, President Putin pressed on this adoption, which according to him if not complied with would lead to “a new Srebrenica” or a potential ethnic cleansing of Russians from Donbas Region. The whole scene becomes even grimmer when we take note of the fact that Ukraine has no Amnesty Laws and if it adopts one and simultaneously if the ICC declares the Amnesty Laws as incompatible in Gaddafi Case, it could lead to the weakening of Ukraine’s Stance in the bargain between the two. Consequently, Ukraine would be forced to cede to a peace treaty and withdraw its case from the ICC.
In this admissibility appeal, the ICC can strongly withhold itself from making any statement related to the international legal debate on amnesties since the defendant did not fulfil the conditions to be granted amnesty under the domestic law of Libya and hence his case provides no substance to raising this issue. Such an act of the questioning of the legality of amnesties under international law should be demarcated from the question of their opposability to international criminal courts and its objectives. It would be an over the exercise of powers because the ICC statute does not empower it to adjudicate the legality of domestic laws. There exists a very sheer contrast between the objectives of international criminal courts and Amnesties. International criminal courts ensure the prosecution of persons responsible for serious international crimes on humanity, whereas on the other hand Amnesties preclude criminal prosecution, and pose as a hindrance to courts and their jurisdictions. To deal with this, newly constituted international and hybrid criminal courts explicitly mention that amnesties won’t be a bar to their jurisdictions. However, when it comes to courts such as ICC which have no explicitly declared amnesty laws, the answers can be found in relevant precedents. By keeping a neutral stance, when it comes to a general ban on Amnesty Laws, the ICC has not only opened the way for Ukraine to continue with its negotiations but has also helped many other international states which may find themselves in the same conundrum. By not rigidifying the approach it takes towards Amnesty Laws the ICC has indeed kept the hopes of Russo-Ukrainian Negotiations up and afloat, however, the question which still remains un-answered is till when can ICC abnegate from taking its stance on Amnesty and when it does take one what shall be its results?
Mohd Rameez Raza & Raj Shekhar study law at Faculty of Law, Integral University, Lucknow and National University of Study and Research in Law, Ranchi respectively.