Amnesties in International Criminal Courts/Tribunals ‒ Jurisdictional Bases of Courts/Tribunals and the Opposability of Amnesties ‒

Abstract

In a March 2020 decision, the Appeal Chamber of the International Criminal Court (ICC) stated that “international law is still in the development stage on the question of acceptability of amnesties.” This decision caused controversy over whether it is appropriate for the ICC to decide the legality of national amnesty law. It has been argued that the question of legality of amnesties under international law is different from the question of their opposability to international criminal courts/tribunals, and it would be more appropriate for international criminal courts/tribunals to only decide the opposability of amnesties to international courts/tribunals. International criminal courts/tribunals are not established to adjudicate the legality of acts of States under international law. They are established to prosecute individuals who committed international crimes and, thus, their pronouncements on the legality of acts of States could be ultra vires. A question, therefore, arises as to whether international criminal courts/tribunals have capacity and authority to make decisions on the legality of amnesties adopted by States. In addition, while international criminal courts/tribunals have decided on the matter outside the scope of its mandates, they have failed to provide concrete criteria for determining whether amnesties, irrespective of their legality under international law, are opposable to international criminal courts/tribunals. With this background in mind, this article reviews different jurisdictional bases of existing international criminal courts/tribunals, and how courts/tribunals have dealt with legal effects of amnesties differently. This articles then identifies the issues that are, in fact, relevant for international criminal courts/tribunals—whether amnesties, irrespective of their legality, are opposable to international criminal courts/tribunals.