Should Rebels Be Amnestied?

Abstract

Abstract This chapter explores the link between jus post bellum and insurgency, with a particular focus on the treatment of amnesties. Insurgents have become a central feature of jus post bellum, but their normative status remains unclear. There is consensus that regardless of the cause they pursued, insurgents should be accountable for violations of the laws of war and other international crimes. The more difficult question is how the fact of having taken up arms in itself should be treated. Analyzing why a privilege of belligerency is recognized in international armed conflicts, the chapter argues that a normatively defensible argument for the amnesty of insurgents must necessarily be based on a partial recognition (at least of the “agree to disagree” type) of the international legitimacy of some insurgencies, particularly those against a regime engaged in massive human rights violations or a foreign occupation in violation of international law.