Abstract
The fact that many groups designated as terrorist are party to non-international armed conflicts raises tensions between international humanitarian law (IHL) and international counter-terrorism law. One such area of tension – the topic of this article – relates to the granting of amnesties. IHL encourages the use of amnesties, and United Nations (UN) bodies have welcomed the granting of amnesties as part of peace agreements. At the same time, several UN Security Council resolutions adopted since 9/11 require States to ensure that persons responsible for terrorist acts, including those committed within situations of armed conflict, are brought to justice. This article analyses the ways in which such counter-terrorism rules impact States’ implementation of the amnesty provisions in IHL, and, in turn, how that interaction shapes the sustainability of the peace which amnesty schemes can facilitate. It makes two main arguments. First, UN Security Council resolutions on terrorism include certain binding obligations that must inform States’ implementation of the amnesty provision in IHL. Second, the indeterminacy of certain binding obligations in the UN Security Council resolutions, allied to the weak nature of the IHL amnesty obligation, creates challenges for States seeking to comply with both sets of rules. After outlining the rationales for amnesties under IHL and the UN Security Council framework on terrorism (Section 2), this article examines the varying normative weight and specificity of the rules at issue (Sections 3 and 4) and illustrates the inconsistent State practice to date (Section 5). Finally, this article proposes some guidance on the implementation of these two sets of rules (Section 6).
Published Version
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