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Elphick, Liam --- "A Model of Amnesty: Inducing Non-State Armed Groups to Comply with International Humanitarian Law" [2016] PerIntLawJl 4; (2016) 1 Perth International Law Journal 10


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A MODEL OF AMNESTY: INDUCING NON- STATE ARMED GROUPS TO COMPLY WITH INTERNATIONAL

HUMANITARIAN L AW

LIAM ELPHICK*

The nature of warfare has changed significantly. Non-state armed groups have grown in num- ber, stature and influence, with many groups wreaking unprecedented death, damage and destruction on civilian populations throughout the world. Some argue that this largely arises because non-state actors are not granted combatant immunity in non-international armed conflicts. Such actors therefore face prosecution for breaches of domestic laws post-conflict regardless of any compliance with international humanitarian norms, which strive to protect civilians from the effects of armed conflicts. However, states are reluctant to provide any perceived legitimacy to non-state armed groups or undermine their own internal sovereignty, whether through the granting of combatant immunity or other mechanisms. This commentary considers whether the granting of amnesties to such non-state actors, providing them immu- nity from domestic prosecution for acts committed in a non-international armed conflict that adhere to international humanitarian law obligations, could induce non-state armed groups to comply with these norms. It concludes that if a proposed six-part Model of Amnesty is followed, non-state armed group compliance with international humanitarian law will sig- nificantly improve, while state sovereignty will still be maintained over internal affairs. It argues that this Model would be best achieved in connection with implementing truth and reconciliation commissions, increased education of non-state actors, further incentivising of

compliance, and improved enforcement mechanisms.

I INTRODUCTION

The concept of combatant status has long been fundamental to the laws of armed con- flict, interchangeably known as international humanitarian law (IHL). Combatants – a state party’s armed forces – by virtue of their status have immunity from prosecution for acts committed during an international armed conflict (IAC) that comply with IHL, and must be afforded prisoner of war (PoW) status if captured.1 However, there is no such status afforded to fighters in non-international armed conflicts (NIACs), between a state and non-state armed groups. Even where members of a non-state armed group – any

* Liam Elphick, BA/LLB Student (University of Western Australia). The author would like to thank William Boothby and Renata Sivacolundhu for their guidance and encouragement, and Dale Stephens CSM for his thoughts and comments on an earlier draft. Responsibility for the text lies with this author and all errors are his alone.

1Additional Protocol (I) to the Geneva Conventions, relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 U.N.T.S. 3 (entered into force 7 December 1978) art 43(2) (‘Additional Protocol I’); see also William H. Boothby, Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors (Asser Press, 2014) 37, 243-245.

group of non-governmental actors engaging in hostilities meeting the NIAC threshold, interchangeably known as non-state actors –2 comply with IHL, they can be prosecuted for breaches of domestic law committed during the conflict; such as assault, or murder. This creates a significant problem: there is little motivation for non-state armed groups to comply with IHL during the most common, and increasingly frequent, form of armed conflict – NIAC. Such groups would inherently ponder: ‘When compliance with the laws of armed conflict cannot keep me out of jail, why comply?’3

One solution that finds support in treaty,4 and custom,5 is to provide amnesties to fight- ers in NIACs, rendering them immune from domestic prosecution for acts committed during the conflict that, while breaching domestic law, adhere to IHL. While amnesties may support a peaceful transition towards post-conflict reconciliation, reprieves may provide non-state armed groups with an appearance of legal legitimacy that threatens state sovereignty – the very reason that combatant status is not granted in NIACs.6 This view is reflected by the International Committee of the Red Cross (ICRC) in the Com- mentary to Additional Protocol II to the Geneva Conventions (APII), stating that:

In general it seems unrealistic to establish combatant status for persons who have partic- ipated in hostilities and have been captured in non-international armed conflicts. In fact, such status would be incompatible, first, with respect for the principle of sovereignty of States, and secondly, with national legislation which makes rebellion a crime.7

Amnesties therefore face key legal and practical issues, surrounding timing, discretion,

2  This definition therefore excludes those groups fighting wars of national liberation under Additional Pro- tocol I art 1(4), as these are considered international armed conflicts. However, this is only of academic importance, as art 1(4) has never explicitly been invoked in an armed conflict. Note that the requirements of a NIAC under Additional Protocol II are the involvement of state armed forces and dissent armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement APII: Additional Protocol (II) to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 U.N.T.S. 609 (entered into force 7 December 1978) art 1(1) (‘Additional Protocol II).

3  Jann K. Kleffner, ‘From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities’ (2007) 54 Netherlands International Law Review 315, 323.

4Additional Protocol II art 6(5).

5  International Committee of the Red Cross, ‘Study on Customary International Humanitarian Law’ (Report, International Committee of the Red Cross, 2005) rule 159.

6  See generally Noelle Higgins, ‘Regulation of Armed Non-State Actors: Promoting the Application of the Laws of War to Conflicts Involving National Liberation Movements’ (2009) 17(1) Human Rights Brief 12.

7  Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Proto- cols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross, 1987) [4397].

punishment and reconciliation, application to non-state conflicts, and an absence of le- gal obligations. This commentary will argue, however, that amnesties can fill the gap created by lack of combatant immunity if they follow six clear guidelines, a proposed Model of Amnesty, to overcome these issues. The effectiveness of amnesties can be maximised when other solutions are also implemented in conjunction, including truth and reconciliation commissions, increased education, incentivising compliance, and en- forcement mechanisms. Together, these measures can provide the solution to a wicked and ever-increasing problem: how to ensure non-state actors comply with IHL during armed conflicts.

As this commentary focuses on combatant immunity, it will not investigate PoW status, a connected but separate consequence of combatant status; as amnesties are a solution to lack of combatant immunity, not lack of PoW status.8 Lack of PoW status could actually deter non-state actors from taking part in hostilities.9

This commentary will proceed in six parts. The problems caused by the lack of combat- ant immunity granted to non-state armed groups in NIACs, namely their consequential lack of compliance with IHL, are analysed in Part II. Amnesties are then introduced and defined in Part III, which also examines the lex lata surrounding their use. Part IV examines the legal issues and practical implications of utilising amnesties in order to induce non-state armed group compliance with IHL in NIACs, and provides solu- tions to each respective problem; also considering whether such solutions would best be achieved through hard law or soft law developments. This Part therein forms the lex ferenda on amnesties. Part V then outlines a proposed Model of Amnesty, incorporating the findings of Part IV in a concise, simple and formulaic manner. Finally, alternative solutions to the problems identified in Part II are considered in Part VI, concluding that compliance with IHL will be maximised if several of these mechanisms are implement- ed alongside the proposed Model of Amnesty.

8  For more in-depth analysis of solutions to the lack of PoW status, see Joseph P. Bialke, ‘AL-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Con- flict’ (2004) 55 The Air Force Law Review 1; James Thuo Gathii, ‘Torture, Extraterritoriality, Terrorism, and International Law’ (2003) 67 Albany Law Review 335; Christopher J. Mandernach, ‘Warriors Without Law: Embracing a Spectrum of Status for Military Actors’ (2007) 7 Appalachian Journal of Law 137; Ray Murphy, ‘Prisoner of War Status and the Question of the Guantanamo Bay Detainees’ (2003) 3(2) Human Rights Law Review 257.

9  See Bialke, above n 9, 14.

II CAUSING PROBLEMS: LACK OF COMBATANT IMMUNITY AND COMPLIANCE IN

NIACS

Scholars unequivocally recognise non-state armed group compliance with IHL as one of the most significant issues facing contemporary NIACs.10 Non-state groups in the conflict in the former Yugoslavia engaged in abhorrent acts of ethnic cleansing, civilian murder, rape, and pillage, while non-state armed groups in Afghanistan and Iraq have resorted to horrific targeting of civilians in the course of hostilities.11 This could be due to any number of factors pertaining to such groups: lack of organisation and command structure, inability to comply with obligations, less education, inability to contribute to the development of IHL,12 a lack of clear accountability mechanisms, or the asymmet- rical nature of NIACs. However, one factor is of particular importance: non-state actors are not granted combatant immunity. Arguably the greatest incentive for compliance is combatant immunity, as this guarantees protection against domestic prosecution for acts that adhere to IHL. Without it, this necessarily leads non-state actors to disregard IHL in order to redress the military imbalance they face.13 Compliance is also consider- ably dependent on reciprocity and equality between the parties to a conflict;14 principles clearly not present when non-state armed groups can be prosecuted despite complying with IHL. However, as summarised by Kleffner, states believe that granting combatant immunity to non-state armed groups would ‘[u]ndermine their claim to the monopoly of force, would promote the formation of non-state armed groups by those who are disen- chanted, and encourage individuals to join such groups.’15

Indeed, the Inter-American Commission construed combatant immunity as ‘a license to kill or wound enemy combatants and destroy enemy military objectives.’16 Clearly,

10  M. Cherif Bassiouni, ‘The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’ (2008) 98(3) The Journal of Criminal Law and Criminology 711, 712; Kleffner, above n 3, 321-323; International Committee of the Red Cross, ‘International humanitarian law and the challenges of contemporary armed conflicts’ (2007) 89(867) International Review of the Red Cross 719; Mandernach, above n 8; Naomi Roht-Arriaza, ‘Combating Impunity: Some Thoughts on the Way Forward’ (1996) 59(4) Law and Contemporary Problems 93.

11  Bassiouni, above n 10, 771-772.

12  See generally Anton O. Petrov, ‘Non-State Actors and Law of Armed Conflict Revisited: Enforcing Interna- tional Law through Domestic Engagement’ (2014) 19(2) Journal of Conflict & Security Law 279.

13  Bassiouni, above n 10, 714-715.

14  Kleffner, above n 3, 323.

15  Ibid 322-323.

16  Organization of American States, Report on Terrorism and Human Rights, OAS Doc OEA/Ser.L/V/II.116 (22 October 2002).

states wish to avoid conferring any such license on non-state actors engaging in armed hostilities. Furthermore, political pressure and policy concerns, often effective at ensur- ing state compliance with IHL, can be greeted with indifference from non-state actors.

Without such incentives to comply, it must be considered whether amnesties could take their place and ensure increased non-state armed group compliance. Bond believes that such groups fight ‘in a twilight zone between lawful combatancy and common crim- inality’,17 but without amnesties they are placed quite squarely in the latter category. The dichotomy facing these groups is that they are as equally bound by IHL as states;18 yet do not receive the protection of combatant immunity afforded in IACs. While state armed forces also do not have combatant immunity in NIACs, they are of course rarely, if ever, prosecuted under domestic law if IHL obligations are adhered to.19 The paradox facing states is that reciprocity is the most effective way of ensuring non-state armed group compliance, but the one outcome they resist so vehemently.

While Bassiouni questions the application of ageing norms to contemporary NIACs involving non-state actors increasingly defiant of such norms,20 IHL pronounces clear rules to limit unnecessary suffering in all conflicts,21 and remains the best tool available to balance military necessity with humanity. What is required is not new laws, but in- creased compliance with existing laws. Without compliance, IHL is toothless and civil- ians become more vulnerable in conflicts. The lex lata and state practice on the use of amnesties, aimed at increasing such compliance, must therefore be considered.

17  James E. Bond, ‘Application of the Law of War to Internal Conflicts’ (1973) 3 Georgia Journal of Interna- tional and Comparative Law 345, 367.

18Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, [119].

19  Boothby, above n 1, 37; Ken Watkin, ‘“Small wars”: the legal challenges’ (2012) 88 USNWC International Law Studies 3, 8.

20  Bassiouni, above n 10; see also Jessica Gavron, ‘Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court’ (2002) 51(1) The International and Compar- ative Law Quarterly 91, 102; Bania Domb, ‘Treatment of War Crimes in Peace Settlements – Prosecution or Amnesty?’ in Yoram Dinsten and Mala Tabory (eds), War Crimes in International Law (Martinus Nijhoff Publishers, 1996) 305, 319.

21  Including the principles of distinction, precautions and proportionality; see, eg, Additional Protocol II art 13.

III AMNESTIES: LEX LATA AND LEGAL CONSEQUENCES

A Defining ‘Amnesty’

Amnesties have their roots in antiquity, as a method of securing peace through pardon- ing enemies,22 and have been included in peace agreements in many recent conflicts: including, inter alia, Chile in 1978, Argentina in 1986, Sierra Leone in 1999, and Ugan- da in 2013.23 Such reprieves have also recently encountered significant public debate.24 Generally, international law provides neither positive support nor condemnation for am- nesties –25 with one exception. Article 6(5) of APII, applying to NIACs and a customary rule,26 recommends that:

[A]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those de- prived of their liberty for reasons related to the armed conflict, whether they are interned or detained.27

The Commentary to APII provides further assistance in defining the scope of amnesties. The ICRC notes that in contrast to free pardons, which are granted by heads of state and put an end to the execution of any penalty, ‘[amnesty] is an act by the legislative power which eliminates the consequences of certain punishable offences, stops prosecutions

22  John Dugard, ‘Dealing With Crimes of a Past Regime. Is Amnesty Still an Option?’ (1999) 12(4) Leiden Journal of International Law 1001, 1001-1002.

23  José Doria, ‘Angola: A case study in the challenges of achieving peace and the question of amnesty or prosecution of war crimes in mixed armed conflicts’ (2002) 5 Yearbook of International Humanitarian Law 3, 44; Roderick O’Brien, ‘Amnesty and International Law’ (2005) 74 Nordic Journal of International Law 261, 264; National Amnesty Law 2008 (Afghanistan) art 1-4; Stella Yarbrough, ‘Amnesty or Accountability: The Fate of High-Ranking Child Soldiers in Uganda’s Lord’s Resistance Army’ (2014) 47 Vanderbilt Journal of Transnational Law 531.

24  See, eg, Donna Field, ‘Families of Australians fighting against Islamic State in Syria want loved ones to be granted amnesty’, ABC News Online (27 July 2015) <http://www.abc.net.au/news/2015-07-27/fam- ilies-of-australians-fighting-islamic-state-want-amnesty/6639894> BBC News, ‘Syrian president an- nounces army deserter amnesty’ BBC News Online (25 July 2015) <http://www.bbc.com/news/world-mid- dle-east-33664350> Radio Tamazuj, ‘IGAD proposes hybrid court with no amnesty for South Sudan war criminals’, Radio Tamazuj Online (27 July 2015) <https://radiotamazuj.org/en/article/igad-proposes-hy- brid-court-no-amnesty-south-sudan-war-criminals>.

25  O’Brien, above n 23, 265; Roht-Arriaza, above n 10, 97; see also Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press, 2003) 96-100.

26Additional Protocol II art 1; International Committee of the Red Cross, above n 5, rule 159.

27Additional Protocol II art 6(5).

and quashes convictions.’28 Accordingly, amnesty as defined in this paper refers to the legislative provision on individuals of complete immunity from future domestic crimi- nal prosecution for acts committed during and in connection with a NIAC that,29 whilst breaching domestic law, adhere to IHL obligations.30 The provision of amnesty includes releasing those detained during the conflict who did not breach IHL. Amnesties granted for taking a general part in hostilities are the focus, rather than amnesties for human rights or IHL breaches – which are largely prohibited under international law,31 and al- ready the subject of vast academic discourse.32 Amnesties are legally distinct from gen- eral immunities,33 which apply automatically, and pardons, which apply retrospectively.

While immunity for civil proceedings is beyond the purview of this paper, the practical effect of amnesties ordinarily bars prosecutors and police from investigating or testify- ing in relation to such crimes; which ‘substantially restrict[s]’ the ability of victims to pursue civil remedies in any case.34

28  Sandoz, Swinarski, and Zimmermann, above n 7, [4617].

29  Acts committed during a NIAC but without a sufficient belligerent nexus to that NIAC should never be covered by such amnesties, to avoid encouraging further sporadic or civilian violence in situations of conflict. 30  This interpretation has been confirmed by the International Committee of the Red Cross: see Roht-Arriaza, above n 10, 97.

31  Especially due to obligations to investigate and prosecute grave breaches of IHL and international human rights law: see generally Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 U.N.T.S. 31 (entered into force 21 October 1950) art 49 (and correspond- ing articles in Geneva Conventions II, III and IV – articles 50, 129 and 146 respectively); International Committee of the Red Cross, above n 5, rule 158; SC Res 1120, UN SCOR, 52nd sess, 3800th mtg, UN Doc S/RES/1120 (14 July 1997); Commission on Human Rights, Impunity, 56th mtg, UN Doc E/CN.4/2002/79 (25 April 2002); Prosecutor v. Anto Furundžija (Judgment) (International Criminal Tribunal for the former Yugoslavia, Case No. IT-95/17/1-T, 10 December 1997) [155]; see also M. Cherif Bassiouni, ‘Searching for Peace and Achieving Justice: The Need for Accountability’ (1996) 59 Law and Contemporary Problems 9; Carla Edelenbos, ‘Human Rights Violations: A Duty to Prosecute?’ (1994) 7 Leiden Journal of International Law 5, 15.

32  Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press, 1st ed, 2012) 506-510; Karen Gallagher, ‘No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone’ (2000) 23 Thomas Jefferson Law Review 149, 176-178; Douglass Cassel, ‘Lessons from the Ameri- cas: Guidelines for International Response to Amnesties for Atrocities’ (1996) 59(4) Law and Contemporary Problems 197; Gavron, above n 20; Renée Jeffery, ‘Amnesty and Accountability: The Price of Peace in Aceh, Indonesia’ (2012) 6 The International Journal of Transitional Justice 60; Kirsty McNamara, ‘Seeking Justice in Ugandan Courts: Amnesty and the Case of Thomas Kwoyelo’ (2013) 12 Washington University Global Studies Law Review 653; Manisuli Ssenyonjo, ‘Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court’ (2005) 10(3) Journal of Conflict & Security Law 405.

33  Such as immunity ratione personae and immunity ratione materiae, applying to governmental office-hold- ers during and after their time in office, respectively.

34Hugo Leonardo et al v. Uruguay (1993) 10.029 Annual Report of the Inter-American Commission of Hu- man Rights 154, 166, 168; Cassel, above n 32, 211.

B Legal obligation?

Sivakumaran and the ICRC both convincingly argue that article 6(5) was designed to be a solution, albeit ‘very limited’,35 to the lack of combatant immunity in NIACs;36 but is this how it operates in praxis? Amnesties of this nature were granted in the Swiss civil war, US civil war, Spanish civil war, Nigerian civil war, and conflicts in Bosnia and Croatia.37 However, article 6(5) entails only a policy choice; not a legal obligation to grant amnesties. The ICRC Commentary to article 6 supports this view, stating that the provision ‘leaves intact the right of the established authorities to prosecute, try and convict members of the armed forces and civilians who have committed an offence related to the armed conflict’.38 International practice and experience tends toward the same understanding. The United Nations (UN) Security Council encouraged the grant- ing of amnesties in conflicts in South Africa, Angola and Croatia;39 practice matched by the UN General Assembly in Afghanistan and Kosovo.40 The UN Commission on Human Rights adopted resolutions encouraging amnesties in Bosnia and Herzegovina and Sudan,41 while the European Union and NATO welcomed amnesties granted in the former Yugoslav Republic of Macedonia and Tajikistan.42 However, with the exception of Security Council resolutions calling on South Africa to grant amnesties to opponents of apartheid, these resolutions and statements all took the form of an ‘encouragement’ to

35  Language used by the ICRC: See Roht-Arriaza, above n 10, 97.

36  Sivakumaran, above n 32, 507-508.

37  Sandesh Sivakumaran, ‘Re-envisaging the International Law of Internal Armed Conflict’ (2011) 22(1) The European Journal of International Law 219, 247; Antonio Coco, ‘The Mark of Cain: The Crime of Terrorism in Times of Armed Conflict as Interpreted by the Court of Appeal of England and Wales in R v. Mohammed Gul(2013) 11 Journal of International Criminal Justice 425, 438.

38  The ICRC does note, though, that such prosecution ‘often entails the suspension of constitutional guaran- tees, the promulgation of special laws and the creation of special jurisdictions’; see Sandoz, Swinarski, and Zimmermann, above n 7, [4597].

39  SC Res 1055, UN SCOR, 51st sess, 3662nd mtg, UN Doc S/RES/1055 (8 May 1996); SC Res 1064, UN

SCOR, 51st sess, 3679th mtg, UN Doc S/RES/1064 (11 July 1996); SC Res 1120, UN SCOR, 52nd sess, 3800th mtg, UN Doc S/RES/1120 (14 July 1997).

40Situation of Human Rights in Afghanistan, GA Res 47/141, UN GAOR, 47th sess, 92nd mtg, UN Doc A/ RES/47/141 (18 December 1992); Situation of Human Rights in Kosovo, GA Res 49/204, UN GAOR, 49th sess, 94th mtg, UN Doc A/RES/49/204 (23 December 1994).

41  Commission on Human Rights, Situation of Human Rights in the Republic of Bosnia and Herzegovina, the State of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), 59th mtg, UN Doc E/CN.4/1996/71 (23 April 1996); Commission on Human Rights, Situation of human rights in the Sudan, 60th mtg, UN Doc E/CN.4/1996/73 (23 April 1996).

42  Dr. Javier Solana (High Representative for the Common Foreign and Security Policy (CFSP), European Union), ‘Welcome of the adoption of the Law on Amnesty in the Former Yugoslav Republic of Macedonia (FYROM)’, Communiqué No. 0039/02 (8 March 2002); North Atlantic Treaty Organization, ‘Final Commu- niqué, Ministerial Meeting of the North Atlantic Council Held in Budapest’, Press Release (29 May 2001) <http://www.nato.int/docu/pr/2001/p01-077e.htm> .

grant amnesty; not an obligation. Thus, while state practice suggests ‘[a] growing trend towards the conclusion of amnesties’ to peacefully resolve hostilities,43 there clearly remains no legal obligation on states to grant amnesties to non-state actors in NIACs.

IV LEGAL ISSUES AND PRACTICAL IMPLICATIONS: SOLUTIONS AND LEX FERENDA

The lack of obligation on states and their vehement desire to maintain sovereignty cre- ates many legal and practical issues with using amnesties to maximise IHL compliance in NIACs. Amnesties can only be considered the answer to lack of combatant immunity if such issues can be overcome. Accordingly, solutions to each issue are proposed below, thereby forming the lex ferenda on amnesties.

A Timing

Firstly, when should a state declare amnesties are applicable to a certain NIAC? The earlier such a statement is made, the greater chance of compliance from non-state armed groups – but this may legitimise the conflict and encourage other groups to take up arms. The later such a statement is made, the clearer it will be that armed internal hostilities are illegal and unacceptable – reflected, however, in less motivation for non-state armed group compliance. While APII refers to the provision of amnesties ‘at the end of hos- tilities’,44 such timing, absent an earlier indication of this outcome, would not directly improve non-state armed group compliance. Amnesties after-the-fact may incentivise compliance in future NIACs, but the inherent objective of concluding hostilities is the prevention of further conflict.

Therefore, it is proposed that states examine in detail and over a significant period of time, likely months, whether a non-state armed group is complying with IHL after the NIAC commences. If the group are failing in their IHL obligations, the state should inform them that amnesties will be granted to those who cease breaches of IHL. The time taken to consider this decision is vital, to avoid any anticipation or expectation of amnesty from non-state actors. Amnesties should also have a clear time limit, within

43  Sivakumaran, above n 32, 509; see also Coco, above n 37, 438.

44Additional Protocol II art 6(5).

which non-state fighters may take advantage of their protection.45

B Discretion, trust and stigma

According to ICRC commentary and various other scholars, amnesty is a matter entirely within state competence.46 While states in NIACs are encouraged to provide such am- nesties, nothing in the lex lata of IHL compels this outcome. The nature of a non-state armed group engaging in hostilities against a state is that the group inherently does not trust or believe in the governing authority. Why, then, would the group trust mere rhet- oric by the government that amnesties will be provided to those who comply with IHL? This is especially the case when the scope of such amnesties is unclear.47 The discretion surrounding amnesties therefore undoubtedly undermines their effectiveness in ensur- ing non-state armed group compliance. However, introducing compulsory amnesties for breaches of domestic law that adhere to IHL would have the same effect as combatant immunity, and therefore does not form the lex ferenda of states.

States could instead pass legislation obligating a grant of amnesty for breaches of cer- tain domestic crimes and for a specified timeframe and location that matches the NIAC, while still allowing for some discretion where necessary. Such legislation was success- fully implemented in Bosnia and Herzegovina,48 Croatia,49 Guatemala,50 and Tajikistan, which exempted pillage, rape and kidnapping from amnesty.51 This would ensure clarity, retain state sovereignty, and could lead to greater trust from the non-state armed group. Such amnesties could also be limited to groups no fewer than twenty, as in El Sal- vador;52 thereby ensuring that unrelated individuals sporadically partaking in violence cannot receive amnesties.

While amnesties are often associated with the stigma of masking grave indiscretions

45  O’Brien, above n 23, 263.

46  Sandoz, Swinarski, and Zimmermann, above n 7, [4617]; Gavron, above n 20, 94; Thomas Buergenthal, ‘The United Nations Truth Commission for El Salvador’ (1994) 27 Vanderbilt Journal of Transnational Law 497, 536.

47  As was the case in Haiti in 1993-1994: see Cassel, above n 32, 205, 227; see also Jeffery, above n 32, 81.

48Law on Amnesty 1999 (Bosnia and Herzegovina, Federation) art 1.

49General Amnesty Law 1996 (Croatia) art 1, 3.

50National Reconciliation Law 1996 (Guatemala) art 8.

51General Amnesty Law 1998 (Tajikistan) art 1, 6, 8(b), 8(c).

52  See Massacre Las Hojas v. El Salvador (1993) 10.287 Annual Report of the Inter-American Commission of Human Rights 88, [1].

– for example, under the Chilean Pinochet regime – this issue would be minimised if every effort goes towards using amnesties to achieve truth and reconciliation rather than impunity.53

C Reconciliation or punishment?

Much may depend upon the respective post-conflict priority of the state in question: reconciliation, or punishment. Retributive justice, restorative justice, disclosure of truth, forgiveness and closure must each be weighed up before coming to any conclusion on amnesties.54 Holding non-state perpetrators criminally accountable may significantly delay peaceful transition. Some states may therefore believe that quickly closing the door on the conflict is required, which may necessitate the reconciliatory use of amnes- ties to avoid an endless legal quagmire – such as the International Criminal Tribunal for the former Yugoslavia. The ICRC commentary to APII explicitly provides that article 6(5) was intended to ‘[e]ncourage gestures of reconciliation which can contribute to reeestablishing normal relations in the life of a nation which has been divided’.55 This sentiment was reflected by the South African Constitutional Court, which justified the granting of amnesties in NIACs on the grounds that:

[s]uch violations have substantially occurred in consequence of conflict between dif- ferent formations within the same state in respect of the permissible political direction which that state should take...and...it becomes necessary after the cessation of such conflict for the society traumatised by such a conflict to reconstruct itself.56

Other states, alternatively, may wish to make it clear to citizens that armed uprisings will not be tolerated, and deem the time taken to assiduously pursue these prosecutions a small price to pay. Where the balance of public policy lies between these compet- ing considerations will depend entirely on circumstances prevalent in the relevant state post-conflict.

53  Gavron, above n 20,115; Roht-Arriaza, above n 10; Naomi Roht-Arriaza and Lauren Gibson, ‘The De- veloping Jurisprudence on Amnesty’ (1998) 20(4) Human Rights Quarterly 843; cf Osim Ndifon, ‘Amnesty and the Obligation Erga Omnes to Repress Humanitarian Law Violations: Lessons from the Sierra Leone Conflict’ (2012) 8(14) European Scientific Journal 12.

54  O’Brien, above n 23, 273-274.

55  Sandoz, Swinarski and Zimmermann, above n 46, [4618].

56Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa (1996) 4 South Afri- can Law Reports 671, 683.

Bassiouni astutely notes, however, that:

[L]arge-scale IHL violations that reward the perpetrators with impunity violate the victims’ need for justice. The memory of such violations among victims is not erased simply because a peaceful settlement has been achieved by political leaders...Peace can hardly be expected to occur without justice, and justice cannot occur unless the truth is known to the satisfaction of the victims.57

Louis Joinet, of the UN Commission on Human Rights, agrees, stating:

[T]here can be no just and lasting reconciliation...without an effective response to the need for justice; the prerequisite for any reconciliation is forgiveness, which is a private act that implies that the victim knows the perpetrator of the violations and that the latter has been able to show repentance.58

Clearly, a blanket amnesty for all non-state fighters is not ideal. Amnesties should in- stead be used carefully and precisely in instances requiring peaceful reconciliation where punishment and retributive justice is inappropriate. As noted by the UN Human Rights Committee in Rodriguez, states should ensure they do not contribute to an atmosphere of impunity that undermines the democratic order.59 Therefore, where a state has dis- cretion over granting an amnesty, the decision should be made by balancing respective considerations of reconciliation, punishment and justice. This could be legislated for: in 1991, Colombia passed an Act that allowed for the grant of amnesty where the individ- ual demonstrated an intention to reintegrate into civil life.60 This may also require that amnesties be granted only to ordinary fighters, not leaders, and obligate disarmament post-conflict from non-state armed groups. Where such amnesties are granted, they should also require that the recipient acknowledges responsibility and shows repentance for the breaches of domestic law and provides full statements outlining these acts,61 thereby providing some truth and justice to the victims and their families. State-funded

57  Bassiouni, above n 10, 809-810; a sentiment reflected by the UN Human Rights Committee in Human Rights Committee, Views: Communication No 322/1988, 47th sess, UN Doc CCPR/C/51/D/322/1988 (19 July 1994) [12.4] (‘Hugo Rodriguez v. Uruguay’).

58  Louis Joinet, UN Commission on Human Rights, Final Report on the Question of the Impunity of Perpetra- tors of Violations of Human Rights, UN Doc E/CN.4/Sub.2/1996/18 (20 June 1996) Principle 19.

59  Human Rights Committee, above n 57, 5 [6.4]; see also Jeffery, above n 32, 60-62.

60Amnesty Decree 1991 (Colombia) art 1.

61  See generally Organization of American States, Report on the Situation of Human Rights in El Salvador, OAS Doc OEA/Ser.L/V/II.85 (1 February 1994) 77.

compensation or exemptions from obligatory military service could also be provided to the families of victims to provide restorative justice, as in Chile in the 1990s. In prac- tice, ‘the choice is seldom simply “justice” or “peace” but rather a complex mixture of both.’62

Pertinently, amnesties have not been granted on such a widespread scale in the twen- ty-first century as they were in the late-twentieth century. If this is due to shifting attitu- dinal priorities towards accountability and human rights over reconciliation and sover- eignty, as the recent development of international criminal law suggests, then this may limit the instances in which amnesties are appropriate. This may especially be the case if amnesties are found to undermine the right of victims to a fair trial.63

D Types of conflict

States may question whether amnesties should equally be applied to NIACs exclusively between non-state armed groups without any involvement of the state. In such circum- stances, states retain little control over the conduct of hostilities or being able to offer mutual interest or reciprocity. Providing amnesties and thereby incentivising compli- ance with IHL should provide greater protections for the civilian population caught up in the conflict. While legitimising violence between these groups may create an issue of public perception, and states may invoke the internal sovereignty argument to an even greater degree, amnesties should equally be encouraged in NIACs not involving the state when they can achieve justice and peaceful reconciliation. Therefore, it is proposed that amnesties can be applied to all NIACs – but when the state is not involved, amnes- ties must be applied non-discriminatorily across all non-state armed groups.

E Lack of obligations

Every non-state armed group is different, and every NIAC is different. While it is sim- pler to identify clear rules that states should adhere to, it appears inappropriate to codify

62  Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition (Frank Cass, 2004) 7; for a sociological account of this issue, see Tariq M. Nadim, ‘Amnesty: a “conver- sation” within the medium of culture. A dialogue approach to the strategy of amnesty in protracted social conflict situations’ (2015) 15(2) Security & Development 147.

63  O’Brien, above n 23, 271-273.

general rules on amnesties when their effectiveness is entirely dependent upon the pre- vailing circumstances of the conflict. Therefore, soft law developments to guide and en- courage state practice and be applied flexibly to fit different circumstances are the most effective way of implementing the four solutions proposed above. While states should be encouraged to implement such measures in national military manuals,64 legislation and other guidelines, international institutions can also contribute to developing such soft law. A UN policy directive governing the Secretariat’s conduct of peacekeeping missions could be issued to codify the above guidance on the scope of amnesties.65

However, it is also clear that the lex lata – namely, article 6(5) of APII – is not enough, and that the lex ferenda demands some sort of obligation on states and non-state actors. Two obligations concerning amnesties should therefore be introduced, whether through a new treaty or a UN General Assembly or Security Council resolution that becomes custom through state practice. Firstly, amnesties should always be made conditional upon two things: complete compliance with IHL from the recipient, and a post-conflict acknowledgment of responsibility and repentance and full statements of fact in order to assist with the reconciliation process. Secondly, states should be obligated to report to the UN on amnesty measures. At the conclusion of a NIAC and the granting, or lack thereof, of amnesties for non-state fighters, states should publicly present to the UN on their implementation of amnesties and why they did or did not grant them in each circumstance. In particular, states should justify why they have departed from any of the four guidelines suggested above. This would achieve increased accountability, dis- courage impunity, and would make explicit developing state practice on amnesties in contemporary NIACs. Accordingly, this would lead to greater and more informed public and academic debate over the effectiveness of amnesties in ensuring compliance with IHL. A new UN body could be established to oversee this process, or reports could be made to the General Assembly. The lex lata could thus be altered in these two ways to form the lex ferenda.

64  However, this should go further than simply transposing art 6(5) into the respective military manual: see, eg, United Kingdom Ministry of Defence, Joint Service Manual of the Law of Armed Conflict (1 July 2004) 15.42; Canadian Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Levels (13 August 2001) 1717.

65  Cassel, above n 32, 205.

V A MODEL OF AMNESTY

Therefore, the implementation of the following guidelines will create a model that best ensures that amnesties maximise non-state armed group compliance with IHL, while maintaining state sovereignty over internal affairs:

1. Timing: States only declare amnesties after assessing the non-state armed group’s compliance with IHL over a significant period of time;

2. Clarity: States legislate for obligatory amnesties in a clear manner;

3. Reconciliation or punishment: State consider whether reconciliation or punish- ment is a more appropriate aim in making decisions on discretionary amnesties;

4. Types of conflict: Amnesties be made available in all NIACs, but apply non-dis- criminatorily across non-state armed groups;

5. Amnesty obligations: Amnesties be conditional on complete compliance with IHL, and post-conflict acknowledgment of responsibility and repentance, and full statements of fact; and

6. Reporting obligations: States be obligated to report on the implementation of amnesties post-conflict.

In addition to the soft law developments and hard law obligations recommended above, a Declaration for Guidelines on Amnesties, establishing this six-part ‘Model of Am- nesty’ as presumptive guidelines that require justification to depart from, could also be proposed as a UN General Assembly resolution.

VI ALTERNATIVE SOLUTIONS

Whether in place of or in connection with amnesties, other solutions to solve the prob- lem of lack of non-state armed group compliance with IHL must also be considered.

A Truth and reconciliation commissions

In 1994, the new South African regime decided not to prosecute Apartheid criminals, and instead established a Truth and Reconciliation Commission to heal the wounds of its long and drawn-out conflict. Seventeen of these commissions were established in

other parts of the world between 1974 and 1999,66 namely in Chile, Argentina and Gua- temala, to thoroughly investigate conflicts and ‘tell the truth’ of what happened.67 A similar approach was used in the hybrid Gacaca courts of Rwanda, which provided for justice while retaining strong elements of reconciliation.68 Truth commissions respond to the problem identified by opponents of blanket amnesties, who argue that mecha- nisms to reveal the truth of conflicts are necessary for post-conflict reconciliation.69 Truth commissions comprised of current or previous judicial officials could be estab- lished post-conflict to:

a) Investigate common crimes committed in a NIAC;

b) Use the Model of Amnesty to decide who should be granted amnesties; and

c) Require recipients to come before the commission to confess their crimes as a condition of their reprieve;70 which could be made public, as in South Africa.71

This would especially ensure the acknowledgment of responsibility under the fifth ele- ment of the Model. Indeed, truth commissions may be the most effective way to imple- ment the six amnesty guidelines in practice; and should thereby be used in conjunction with previously granted amnesties to increase non-state armed group compliance with NIACs, and have the power to grant post-conflict amnesties to assist reconciliation ef- forts. This is especially the case if they follow the eight minimum requirements of truth commissions identified by Dugard, and thereby ‘serve as a useful compromise to ensure that justice is not entirely sacrificed to the cause of peace.’72. The benefits of this ap- proach were precisely noted by South Africa’s Chief Justice Mahomed in AZAPO, who argued that amnesties granted by a truth commission would encourage:

[s]urvivors and the dependants of the tortured and the wounded, the maimed and the dead to unburden their grief publicly, to receive the collective recognition of a new

66  Dugard, above n 22, 1005.

67  Priscilla Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’ (1994) 16 Human Rights Quarterly 600.

68  See generally Leo C. Nwoye, ‘Partners or rivals in reconciliation? The ICTR and Rwanda’s Gacaca Courts’ (2014) 16(1) San Diego International Law Journal 119; Bernard Rimé, Patrick Kanyangara, Vincent Yzerbyt, and Dario Paez, ‘The impact of Gacaca tribunals in Rwanda: Psychosocial effects of participation in a truth and reconciliation process after a genocide’ (2011) 41(6) European Journal of Social Psychology 695.

69  Emily W. Schabacker, ‘Reconciliation or Justice and Ashes: Amnesty and the Duty to Punish Human Rights Offences’ (1999) 12 New York International Law Review 1, 51; Doria, above n 23, 45; Dugard, above n 22.

70  Doria, above n 23, 45.

71  Dugard, above n 22, 1010.

72  Ibid 1012, 1015.

nation that they were wronged, and, crucially, to help them to discover what did in truth happen to their loved ones...and who was responsible.

That truth...is, in the circumstances, much more likely to be forthcoming if those re- sponsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do.73

However, ‘prosecutions [are] never seriously considered’ by truth commissions;74 and thus they would be inappropriate where accountability, rather than reconciliation, is the key post-conflict aim. Whether truth commissions should also provide amnesties for breaches of IHL or human rights is beyond the purview of this paper.75

B Quasi-combatant Immunity

Combatant immunity undoubtedly forms the lex ferenda here, but its absence in NIACs remains the immovable peg from which states will not deviate. This is likely to remain the non-negotiable, fundamental difference between IACs and NIACs for the foresee- able future, whatever their convergence on other issues. Whether states may instead consider a quasi-combatant immunity, applying to minor crimes, is questionable. Under a quasi-combatant immunity, prosecutions could perhaps only be pursued for ‘grave’ breaches of domestic law. The emphasis states place on their internal sovereignty, how- ever, suggests this is the wrong approach to take to ensuring compliance with IHL. States have historically resisted any offer by non-state actors to comply with IHL in return for granting a form of combatant status.76

C Increased Education

A more considered approach could involve increased IHL education for non-state actors by third parties, such as relevant Red Cross societies. Despite mounting evidence that

73Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa (1996) 4 South Afri- can Law Reports 671, 683-685 (Mahomed CJ).

74  Hayner, above n 67, note 4.

75  But for a sound analysis of this very issue, see Gavron, above n 20.

76  Including offers from the Irish Republican Army, African National Congress and the Palestine Liberation Organization; see Bassiouni, above n 10, 749.

non-state actors believe IHL violations to be immoral,77 education should be focused on practical considerations. Purely humanitarian arguments have rarely proved effective in even ensuring state compliance with IHL,78 despite the increasing influence of human rights.79 Specifically, non-state armed groups could be educated on how increased com- pliance with IHL can often result in increased international recognition,80 or amnesty. Implementing the Model of Amnesty, thereby elucidating clear guidelines, creates a firm basis on which to educate. A state could perhaps agree to confer some political legitimacy on a non-state armed group in return for compliance with IHL to enshrine this education, as successfully occurred in El Salvador.81 However, these groups may lack the organisation, command structure and internal discipline to ensure widespread education of compliance within its ranks.

D Incentivising Compliance

Incentivisation, through mutuality of interest and practical policy considerations, is cru- cial in inducing voluntary compliance with IHL.82 For example, non-state armed groups may not share a state’s concern in protecting its own citizens, but they would likely want to limit the suffering of their own fighters. As such, a state could agree at the commence- ment of hostilities to not use weapons against any non-state actor that cause unnecessary suffering,83 in exchange for the non-state armed group agreeing not to target civilians. Of course, such agreements may be difficult when such groups resist any communica- tion with the state. A declaration from the state that the conflict comprises a Common

77  See generally Andrew Clapham, ‘Human Rights Obligations of Non-State Actors in Conflict Situations’ (2006) 863 International Review of the Red Cross 491.

78  Bassiouni, above n 10, 727.

79  See generally Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94(2) The American Journal of International Law 239.

80  Bassiouni, above n 10, 737; Churchill Ewumbue-Monono, ‘Respect for International Humanitarian Law by Armed Non-State Actors in Africa’ (2006) 864 International Review of the Red Cross 905.

81  Paul Selis, ‘The Limits of Truth Commissions in the Search for Justice’ in M. Cherif Bassouni (ed)

Post-Conflict Justice (Transnational Publishers, 2002) 775.

82  Bassiouni, above n 10, 727; Gavron, above n 20, 93; Kleffner, above n 3, 322; see generally Coco, above n 37, 439; Antonio Cassesse, ‘Should Rebels be Treated as Criminals? Some Modest Proposals for Rendering Internal Armed Conflicts Less Inhumane’ in Antonio Cassese (ed) Realizing Utopia: The Future of Inter- natinoal Law (Oxford University Press, 2012) 519; Marco Sassòli, ‘Terrorism and War’ (2006) 4 Journal of International Criminal Justice 959, 970-971; Daniel O’Donnell, ‘International Treaties against Terrorism and the Use of Terrorism during Armed Conflict and by Armed Forces’ (2006) 88 International Review of the Red Cross 853, 868; Olivier Bangerter, ‘Reasons why armed groups choose to respect international humanitarian law or not’ (2011) 93 International Review of the Red Cross 353, 377.

83  Such weapons would, of course, already be banned under IHL – though article 35(2) has a narrow appli- cation: see Additional Protocol I art 35(2), International Committee of the Red Cross, above n 5, rule 70; see generally Boothby, above n 1, 155-194.

Article 3 conflict, therefore explicitly providing guarantees of humane treatment for all participants,84 may instigate a level of trust and reciprocity with non-state armed groups without granting them the legitimacy that states so fear. Providing non-state actors a seat at a peace-negotiating table as a conflict resolution mechanism can also have the same positive effect on compliance.85 Agreements of this nature should aid in creating a mutuality of interest between states and non-state actors, and ensure that the latter are rewarded for complying with IHL, thereby incentivising voluntary compliance.

E Enforcement Mechanisms

In the absence of inducing voluntary compliance, states could expand mechanisms to enforce IHL norms against non-state actors. The International Criminal Tribunals for the former Yugoslavia and Rwanda have both prosecuted non-state actors for grave breaches of IHL in NIACs. Though the extreme cost associated with these tribunals may prevent their replication in future, states with the requisite capacity may adopt this ap- proach and attempt to use the stick, not the carrot, to enforce compliance with IHL. This solution, though, is limited by its ex post facto nature; ordinarily it could not be used during a conflict to increase compliance. Furthermore, there remains some doubt over the deterrent effect of international criminal law,86 as prosecutions are ordinarily limited to only the gravest of breaches by military leaders in the most horrific of conflicts. States could ensure that state actors are equally and impartially prosecuted for corresponding violations of IHL to maximise the effect of such mechanisms.

VII CONCLUSION: THE WAY FORWARD

If the problem is lack of combatant immunity in NIACs, and therefore how to ensure non-state armed group compliance with IHL, amnesties can be the answer. However, maximal effect will only be achieved by following the Model outlined earlier, regarding timing, legislative action, punishment and reconciliation, types of conflict, and obli- gations. Implementing these guidelines through national truth and reconciliation com-

84  See generally Lindsay Moir, The Law of Internal Armed Conflict (Cambridge University Press, 2008) 60. 85  Selis, above n 81; Bassiouni, above n 10, 789-790; see generally Elisabeth Jean Wood, Insurgent Collective Action and Civil War in El Salvador (Cambridge University Press, 2003).

86  See, eg, Bassiouni, above n 10, 792-801.

missions and international soft law developments is ideal. Whatever their framework, amnesties should be used sparingly and carefully, lest non-state armed groups develop widespread legitimacy and an expectation that hostilities against a state will always be made immune from domestic prosecution. Amnesties should be but ‘one element in a package of measures’,87 including increased education, incentives and enforcement mechanisms, to induce non-state armed group compliance with IHL. Two significant practical limits must be noted, however: if a non-state actor doggedly resolves to inten- tionally breach IHL in order to attain some advantage, nothing is likely to stop them; and the ever-developing nature of human rights and international criminal law suggests that accountability and punishment may be prioritised over reconciliation in future conflicts. Increased, not total, adherence to the laws of war by non-state actors should therefore be the realistic aim. Only a nuanced and considered approach to amnesties in conjunction with other mechanisms will maximise compliance with IHL by non-state actors, while still maintaining the fundamental principle of state sovereignty and discouraging NIACs in their entirety.

87  O’Brien, above n 23, 264; William A. Schabas, ‘Amnesty, The Sierra Leone Truth and Reconciliation Com- mission and the Special Court for Sierra Leone’ (2004) 11 University of California, Davis 145.


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