74
Special Court for Sierra Leone, and the Extraordinary Chambers of the Courts of
Cambodia, have included in their texts, clauses that indicate that the amnesties that
are conceded shall not constitute an impediment to the processing of those
responsible for crimes that are within the scope of the jurisdiction of said tribunals.
255
210. Likewise, in an interpretation of Article 6-5 of the Protocol II Additional to the
Geneva Convention on International Humanitarian Law,256 the ICRC stated that
amnesties cannot protect perpetrators of war crimes:
[w]hen it adopted paragraph 5 of Article 6 of Additional Protocol II, the USSR declared, in
the reasoning of its opinion, that it could not be interpreted in such a way that it allow war
criminals or other persons guilty of crimes against humanity to escape severe
punishment. The
ICRC agrees with
this
interpretation. An
amnesty would
also
be inconsistent with the rule requiring States to investigate and prosecute those suspected
of committing war crimes in international armed conflicts257(…).
211. This norm of International Humanitarian Law and interpretation of Article 6-5
of the Protocol has been adopted by the Inter-American Commission on Human
Rights258 and the Human Rights Committee of the United Nations.259
212. The illegality of the amnesties related to serious violations of human rights
vis-à-vis international law have been affirmed by the courts and organs of all the
regional systems for the protection of human rights.
213. In the European System, the European Court of Human Rights considered
that it is of the highest importance, in what pertains to an effective remedy, that the
criminal procedures which refer to crimes, such as torture, that imply serious
violations of human rights, not be obstructed by statute of limitations or allow
255
Cf.
Agreement between
the
UN and the
Lebanese
Republic on
the
establishment
of a Special Tribunal for Lebanon, Article 16 and Statute of the Special Tribunal for Lebanon,
Article 6, Resolution 1757 of the Security Council of the United Nations. U.N. DocS/RES/1757 of May 30,
2007, Statute of the Special Court for Sierra Leone, January 16, 2002, Article 10, Agreement between
the United Nations and the Royal Government of Cambodia for the Prosecution under the Cambodian
Law of Crimes Committed during the Period of
the Democratic Kampuchea, from March 6, 2003,
Article 11 and Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with amendments adopted
on October 27, 2004 (NS / RKM, 1004/006), new Article 40.
256
Cf. Article 6-5 of the Protocol II Additional to the Geneva Conventions, “At the end of hostilities,
the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have
participated in the armed conflict, or those deprived of their liberty for reasons related to the armed
conflict, whether they are interned or detained.”
257
Cf. International Committee of the Red Cross, Customary International Humanitarian Law,
vol. I, edited by Jean-Marie Henckaerts and Louise Doswald-Beck, 2007, page 692. Also, the standard 159
of Customary International Humanitarian Law states that the persons suspected or accused of
committing war crimes, or sentenced for them, may not receive amnesties. Standard 159,International
Committee of the Red Cross, Customary International Humanitarian Law, vol. I, edited by JeanMarie Henckaerts and Louise Doswald-Beck, 2007, page 691.
258
Cf. IACHR, Report on the Human Rights Situation in El Salvador, Case of No. 11.138, in,
document OEA/Ser.L/V/II.85, Doc. 28 rev. on February 11, 1994, General conclusions, para. C.
259
Cf. among others, Final observations of the Human Rights Committee: Lebanon, U.N. Doc.
CCPR/C/79/Add.78, May 5, 1997, para. 12, and Final observations of the Human Rights Committee:
Croatia, U.N. Doc., CCPR/ CO/71/HRV, of April 4, 2001, para. 11.
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