Criminal prosecution of those accused of committing war crimes is a fundamental aspect to a victim's right to justice. However, in armed conflicts where serious violations of international humanitarian law have occurred on a massive scale, there is often a need to balance the right of victims to retributive justice with the need of the territorial State to deal with past atrocities in such as manner as to not provoke further violence and to advance the process of reconciliation. In these circumstances, a restorative justice approach incorporating limited amnesties in conjunction with other accountability mechanisms may provide a way to ensure the rule of law while accommodating the sensitivities of the transitional process. Where States in periods of transition have enacted such amnesties, it is important to consider whether such amnesties will be given international recognition.

This article analyses the international rules and principles determining or impacting upon a domestic or international court's decision whether or not to recognize an amnesty covering war crimes. This analysis begins with an inquiry into whether there exists a customary duty to prosecute those accused of all war crimes. The consequences of the jus cogens nature of the prohibition to commit war crimes are also examined, as is the more recent practice of States in setting up special courts to try those accused of war crimes. It is argued that international law does not preclude domestic and international courts according recognition to certain amnesties limited to those considered "least responsible" for the commission of war crimes, when accompanied by other accountability measures and with the objective of facilitating the progression towards a lasting peace.

Full text in PDF format  (224 kb)
  About Acrobat PDF files