An important question may concern the permissibility of amnesties. Blanket amnesties for genocide, war crimes, crimes against humanity and other serious violations of human rights are generally deemed impermissible under international law and need not be respected by the international
community. The Secretary-General of the United Nations has taken the view that United Nationsendorsed peace agreements can never grant amnesties for genocide, war crimes, crimes against
humanity or gross violations of human rights, nor will such amnesties constitute a bar before
United Nations-created or United Nations-assisted courts.60 International jurisprudence, including
the cases before ICTY, the Inter-American Court of Human Rights and the Special Court for Sierra
Leone, has also supported the non-recognition of amnesties.61 Recently, amnesties have also successfully been challenged in a number of national courts, including in Chile and Argentina.
Moreover, amnesties in countries that are States parties to the Rome Statute covering crimes
under the jurisdiction of the International Criminal Court may contravene legal obligations under that Statute, and the Prosecutor is under no duty to respect them. There may be less certainty where amnesties are subject to conditions short of full punishment, such as disclosure
accompanied by some form of sanction. Such measures may fall to the Prosecutor and Pre-Trial
Chamber to evaluate under article 53 of the Rome Statute, pursuant to which he can decide
whether an investigation or prosecution would serve the “interests of justice.” As a matter of
general principle, however, it is clear that States have a “duty to exercise their criminal jurisdiction” under the Rome Statute and any invocation of the “interests of justice” as a basis not to
proceed will be extremely exceptional.
In terms of a choice of forum, the updated Set of Principles for the protection and promotion
of human rights through action to combat impunity state that trials of massive violations of
human rights should be held before ordinary civilian courts rather than military tribunals.62 Regional human rights courts or treaty-monitoring mechanisms may be used creatively to catalyse
domestic cases.
If crimes have extraterritorial aspects, efforts should be made to put in place appropriate arrangements for extradition and judicial assistance from abroad. In the context of the International Criminal Court, new provisions will be adopted that allow for cooperation with the Court
and other States parties. Other treaty regimes, such as the Geneva Conventions of 1949 (including the Additional Protocols of 1977) or the Convention against Torture, may entail their own
obligations in terms of extradition and judicial assistance. Alternatively, ad hoc arrangements
should be made.
60
See S/2004/616, sect. XIX.
61
S ee the case of Furundzija, ICTY Trial Chamber, para. 155, 10 December 1998, the case of Barrios Altos, Inter-American Court
of Human Rights, No. 75 (series C), paras. 39–41, 14 March 2001, and the case of Kallon and Kamara, Special Court for Sierra
Leone Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004.
62
See E/CN.4/2005/102/Add.1, principle 29.
23
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