Court decision on post-war amnesties is lesson for EU

Amnesties have been viewed as a principal means of achieving peace and reconciliation after conflict. But as they prevent trials, the emergence of transitional justice has caused amnesties to become increasingly controversial.

The EU's approach to this vexed issue has been inconsistent. But last week's decision by the European Court of Human Rights (ECHR) in Strasbourg on the subject should provide valuable guidance to the EU External Action Service's (EEAS) efforts to produce the Union's first transitional justice policy by late 2014.

There is no official EU policy on amnesties, but a 2012 EEAS factsheet on transitional justice stated that international law prohibits amnesties for gross human rights violations and international crimes.

It did, however, concede amnesties for other crimes can be valuable in overcoming deadlocks in peace negotiations and can encourage offenders to tell the truth. The factsheet suggested that for amnesties to be acceptable, not only must they exclude gross violations and international crimes, but they should also be linked to non-judicial efforts to deliver truth and accountability.

These stipulations have not always been reflected in the actions of the EU or its member states.

For example, despite the EU's support for the International Criminal Court (ICC), several EU states contributed financially to the Ugandan Amnesty Commission's efforts to demobilise Lord's Resistance Army (LRA) fighters, after the ICC had issued arrest warrants for the LRA leaders.

The LRA has been accused of horrendous crimes and the Ugandan amnesty was not linked to any other form of accountability. Also, the EU monitored the amnesty to reintegrate former combatants in Aceh, Indonesia, including those accused of serious crimes.

More recently, in April 2014, the EU called for an amnesty for Ukrainian protestors with the sole exception of those found guilty of "capital crimes" – surprising given that the death penalty has been abolished in the Ukraine.

Several EU states have amnesties that prevent prosecutions of past human rights violations. For example, following the death of General Franco, Spain enacted amnesties that have been subject to extensive public debate in the past decade. In recent months, amnesties have been proposed in Northern Ireland for crimes committed during the Troubles.

It therefore seems a safe bet that the amnesties will continue to feature in efforts to deal with the past within the EU and in the EU's interventions into conflict zones. A careful approach to amnesties must be included in the new Transitional Justice policy.

The Margus Case

Fred Margus was a Croatian army commander accused of killing and harming Croatian-Serb civilians during the war in the early 1990s.

After the war's end, the Croatian authorities amnestied conflict-related offences, with the exception of genocide, war crimes and crimes against humanity. The amnesty closed the case against Margus until 2006, when he was then charged and convicted of war crimes for the same events.

Margus complained that this violated his right not to be tried or punished twice for the same offence and took his case to Strasbourg.

The Croatian amnesty's legality was not disputed before the ECHR. However, in 2012, the court chose to argue that granting amnesty for international crimes is increasingly considered to be prohibited by international law.

This contrasts markedly to the court's position in the so-called Tarbuk case, which, referring to previous decisions by the European human rights system, found that a state is justified in enacting any amnesty laws that it might consider necessary, even for violations of the right to life.

The ECHR's assertion of a prohibition on amnesty concerned myself and my colleagues involved in developing The Belfast Guidelines on Amnesty and Accountability, which are based on an extensive review of international law.

We felt that the ECHR's approach exceeded the boundaries of established law. We also felt that it made bad policy as asserting a total ban on amnesties may close down the possibility of ending violent dictatorships or conflicts, and may lead to further violations.

Instead, the Belfast Guidelines present a nuanced approach to balancing amnesty and accountability in post-conflict settings.

We therefore intervened in the Margus case to discourage the court from asserting a total ban on amnesties. The court appears to have paid heed to these concerns.

Its decision last week stated that although there is a growing tendency to see amnesties as unacceptable for war crimes, there remains a possibility that amnesties for these crimes could be possible where there are some particular circumstances, such as a reconciliation process and/or form of compensation to the victims.

The Margus case and The Belfast Guidelines suggest that the EU should not adopt a total ban on amnesties.

However, neither should it support unconditional amnesties for international crimes and gross human rights violations.

Instead, the EU should support amnesties only where they are necessary components of broader peacebuilding projects and where they meet certain conditions, such as being accompanied by non-judicial accountability measures such as truth commissions, restorative justice, vetting and reparations.

The writer is a reader in international law at the University of Ulster in Northern Ireland