AMNESTY FOR EVEN THE WORST OFFENDERS.

• Author: Butler, Jay

Abstract

In recent years, global policy makers have declared that heads of state must be held accountable through criminal prosecution for internationally wrongful acts. Scholars too have insisted that the international system's embrace of accountability excludes or renders illegal the granting of amnesty. This Article argues that that position is too narrow and uses the ongoing conflict in Syria, as well as other contemporary examples, to examine some of consequences of the clamor for prosecution.

The Article rejects the binary juxtaposition of amnesty and accountability in current international legal scholarship, and instead seeks to broaden the terms of the conversation by considering amnesty from the perspective of the Responsibility to Protect (R2P) principle.

The Article suggests that viewing amnesty as a conflict resolution mechanism that may discharge R2P highlights important values and tradeoffs that the debate over amnesty and its relation to accountability has heretofore neglected.

Table of Contents Introduction I. Responsibility To Protect A. The Obligation B. Actors and Actions C. Unanswered Questions II. International Criminal Law, Human Rights and Universal Jurisdiction A. International Criminal Court and Ad hoc Tribunals B. Human Rights Bodies and Regional Courts C. National Courts and the Obligation to Extradite or Prosecute III. Amnesty, Asylum and the Right to a Remedy IV. When?: Amnesty as R2P Conclusion Introduction

"[I]n seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall." (1)

In February 2012, Martti Ahtisaari, former Finnish Prime Minister and then envoy for a group of retired international statesmen known as The Elders, sought to broker peace negotiations in Syria. Ahtisaari visited each delegation of the UN Security Council's five permanent members in search of a consensus solution. Russia had been adamant in its public support for the sitting regime of President Assad, but in private, Russian Ambassador Vitaly Churkin admitted to Ahtisaari that the international community should find "an elegant way for Assad to step aside." (2)

It is unclear whether Assad would have accepted exile in some third state. (3) However, the Russian Ambassador's private admission that his country favored amnesty and asylum for Assad provided a brief opening for an internationally brokered resolution.

Instead, according to Ahtisaari, Western powers rebuffed the possibility of immunity for Assad on the assumption that opposition groups in Syria would soon topple the regime militarily. (4) Several days after Ahtisaari's overtures, U.S. Secretary of State, Hillary Clinton, branded Assad a war criminal, and the US and its allies have since pressed the Security Council to refer the situation in Syria to the International Criminal Court (ICC) for investigation and prosecution. (5)

Rather than a swift end with a speedy exit for Assad, the conflict has now been fought to a devastating stalemate. (6) A few years on and the Assad regime has entrenched itself, with mass civilian suffering seemingly the only tangible result of the years-long uprising. (7)

International responses to the conflict in Syria are often weighed according to the responsibility to protect (R (2)P). (8) That principle, first proposed by a commission of experts in 2001 and since endorsed in modified form by UN member states during the 2005 World Summit, insists that the international community has a duty (not merely a right) to intervene diplomatically or, as a last resort, militarily when a government is unwilling or unable to protect its people from large-scale loss of life. (9)

Though the principle that the international community has an affirmative obligation to act in order to rescue people in a state where grave abuses are occurring may seem intuitive or even obvious to some, any embrace of the responsibility to protect represents a massive shift in thinking within international law. (10) After the Second World War, states were concerned most with preventing another war between states. (11) To accomplish this end, they adopted a binding legal arrangement in the form of the UN Charter that prohibited foreign interference in the domestic affairs of another state and forbade any use of military force except in self-defense or with the approval of the Security Council. (12) Moreover, just a few decades ago, the UN General Assembly adopted a resolution expressing the aspirations of its newly independent, formerly colonized member states in which it affirmed that "[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State." (13) And, the International Court of Justice has cited this declaration as an indicium of a customary international law prohibition against foreign intervention in the affairs of another state. (14)

However, swayed by global inaction in the face of genocidal violence in Rwanda and Bosnia, the international community began to appreciate that a different approach may be required. (15) Some states from the 1990s onward articulated a right of humanitarian intervention to justify the discretionary deployment of military force without a Security Council mandate in order to avert human suffering, as was the case with NATO's rationale for its intervention in Kosovo. (16) Responsibility to protect carries this trend a step further, asserting in its strongest formulation that there is not merely a right, but a positive duty incumbent on all states to act (either non-militarily or, as a last resort, militarily) to bring an end to grave abuses occurring within a state (even if the underlying conflict itself is only domestic or internal in nature). (17) Accordingly, recognition of the responsibility to protect would represent a radical shift in what is required of states under international law.

Just as the responsibility to protect may be viewed as the manifestation of an international trend against inaction in the face of serious crimes, a concurrent shift has been witnessed in the last couple of decades away from so-called impunity for serious crimes (the notion that perpetrators too often escape unpunished) and toward accountability for such offences. (18) R2P itself has been cast as an accountability mechanism, requiring that the international community not allow a government to invoke its state's sovereignty to shield it from outside intervention and that the community not use that sovereignty as an excuse for collective inaction. (19)

Indeed, the report that launched R2P framed the principle as part of an emerging "transition from a culture of sovereign impunity to a culture of national and international accountability" and asserted that R2P's recasting of sovereignty as responsibility "means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission." (20) Moreover, in assessing appropriate means through which the international community might implement R2P and as an illustration of this prevailing assumption, the UN Secretary-General has observed simply that "[r]esponsibility requires accountability." (21)

As such, a variety of punitive measures, from economic sanctions to outside military intervention, have been contemplated as tools to discharge R2P. (22) And, from the first R2P report onward, officials have assumed that accountability through criminal prosecution either before the ICC or domestically would serve as a natural application of R2P. (23)

Therefore, it is perhaps not surprising that the first R2P report is silent on the question of amnesty or the compatibility of such a mechanism with R2P. Similarly, in his nine reports on implementing R2P, the UN Secretary-General has often praised international criminal law, but has never once mentioned amnesty as a possible tool for conflict resolution. (24) Amnesty or asylum for perpetrators of serious crimes would seem to run contrary to contemporary international law's embrace of accountability, and many scholars have argued that amnesty, as the suspension of criminal accountability, violates international law. (25)

Yet, in settings where amnesty has the potential to diffuse conflict, this Article asks whether its grant might be understood as an action in discharge of R2P. To make the issue concrete, we might ask: would a state that negotiated an amnesty for President Assad and offered him political asylum in 2012 so as to facilitate "an elegant way for him to step aside" have undertaken such action in fulfillment of the responsibility to protect?

This question is of vital importance for any state evaluating potential responses to situations of ongoing conflict, since the grant of asylum could place the offering state in violation of the duty to cooperate with international criminal proceedings that seek to prosecute the recipient of the amnesty. Worse, a state that offers this option may open itself to allegations of unlawful complicity with the grave abuses perpetrated by the fleeing head of state for its failure to punish the official now resident in its jurisdiction. (26)

This Article aims to broaden the debate over amnesty and accountability by proposing that amnesty as a conflict resolution tool may be understood within the R2P framework. It does not seek to resolve R2P's various conceptual and practical challenges, nor does it aspire to determine conclusively when amnesty or asylum will be appropriate. The likely success of amnesty or asylum in diffusing conflict is a highly fact and context specific evaluation whose detailed treatment in every scenario is beyond the intended scope of the present inquiry. Instead, the Article pries ajar a door once seemingly...