Monday

19th Nov 2018

Opinion

Court decision on post-war amnesties is lesson for EU

  • Judges in Strasbourg: the Margus case shows the EU should not support a ban on amnesties (Photo: Council of Europe)

The EU is a leading actor in ending armed conflicts. Efforts to provide truth, justice and reparations for victims and societies after mass violence (known as "transitional justice") are now routinely viewed as key to peacebuilding efforts.

The EU has long been heavily involved in providing technical, security and diplomatic support to transitional justice, as well as millions of euros to finance transitional justice institutions.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

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

US steps in to clean up Cyprus

Cyprus has overlooked undertakings on bank probity made to the EU in the context of the 2013 bailout - but it might prove harder to get the US off its back.

Macron's 'European army': why is everyone talking about it?

Few people commented on one key point in Macron's statement: he did not justify the idea of a European army by the need to intervene in Africa, which would have been France's traditional approach. Instead, he invoked the Russian threat,

EU 'Magnitsky Act' must bear its proper name

Sergei Magnitsky gave his life to fighting corruption. The least we can do is to honour his sacrifice in the name of the legislation that his heroism inspired.

News in Brief

  1. US warns EU banks and firms against trading with Iran
  2. Merkel urged Romania not to move embassy to Jerusalem
  3. Protesters call for Czech leader to step down
  4. Former German chancellor labelled 'enemy' of Ukraine
  5. French lead opposition to Brexit deal on fisheries
  6. Private accounts of Danske Bank employees investigated
  7. UK's May defends Brexit deal to MPs, after ministers resign
  8. Brexit MP calls for 'no confidence' vote on May

Why 'Spitzenkandidat' is probably here to stay

The power of the parliament to 'appoint' the president of the EU Commission is new, highly-contested - and not universally understood. In fact, even some of the lead candidates to replace Jean-Claude Juncker are against it.

Stakeholders' Highlights

  1. NORDIC COUNCIL OF MINISTERSTheresa May: “We will not be turning our backs on the Nordic region”
  2. International Partnership for Human RightsOpen letter to Emmanuel Macron ahead of Uzbek president's visit
  3. International Partnership for Human RightsRaising key human rights concerns during visit of Turkmenistan's foreign minister
  4. NORDIC COUNCIL OF MINISTERSState of the Nordic Region presented in Brussels
  5. NORDIC COUNCIL OF MINISTERSThe vital bioeconomy. New issue of “Sustainable Growth the Nordic Way” out now
  6. NORDIC COUNCIL OF MINISTERSThe Nordic gender effect goes international
  7. NORDIC COUNCIL OF MINISTERSPaula Lehtomaki from Finland elected as the Council's first female Secretary General
  8. NORDIC COUNCIL OF MINISTERSNordic design sets the stage at COP24, running a competition for sustainable chairs.
  9. Counter BalanceIn Kenya, a motorway funded by the European Investment Bank runs over roadside dwellers
  10. ACCACompany Law Package: Making the Best of Digital and Cross Border Mobility,
  11. International Partnership for Human RightsCivil Society Worried About Shortcomings in EU-Kyrgyzstan Human Rights Dialogue
  12. UNESDAThe European Soft Drinks Industry Supports over 1.7 Million Jobs

Latest News

  1. Brexit dominates EU affairs This WEEK
  2. How the EU commission got tunnel vision on self-driving cars
  3. No-confidence calls against May put Brexit deal in doubt
  4. Key points of the Brexit deal (if it ever comes into effect)
  5. Romania heaps scorn on 'revolting' EU criticism
  6. US steps in to clean up Cyprus
  7. 'Decisive progress' on Brexit as British cabinet backs deal
  8. Asylum for Macedonia's ex-PM puts Orban on spot

Stakeholders' Highlights

  1. Mission of China to the EUJointly Building Belt and Road Initiative Leads to a Better Future for All
  2. International Partnership for Human RightsCivil society asks PACE to appoint Rapporteur to probe issue of political prisoners in Azerbaijan
  3. ACCASocial Mobility – How Can We Increase Opportunities Through Training and Education?
  4. Nordic Council of MinistersEnergy Solutions for a Greener Tomorrow
  5. UNICEFWhat Kind of Europe Do Children Want? Unicef & Eurochild Launch Survey on the Europe Kids Want
  6. Nordic Council of MinistersNordic Countries Take a Stand for Climate-Smart Energy Solutions
  7. Mission of China to the EUChina: Work Together for a Better Globalisation
  8. Nordic Council of MinistersNordics Could Be First Carbon-Negative Region in World
  9. European Federation of Allergy and AirwaysLife Is Possible for Patients with Severe Asthma
  10. PKEE - Polish Energy AssociationCommon-Sense Approach Needed for EU Energy Reform
  11. Nordic Council of MinistersNordic Region to Lead in Developing and Rolling Out 5G Network
  12. Mission of China to the EUChina-EU Economic and Trade Relations Enjoy a Bright Future

Join EUobserver

Support quality EU news

Join us