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National Amnesty laws for prior governments are illegal under international law says new research

Originally published 8 April 2002

New research finds that national amnesties for agents of former regimes, used by countries such as Zimbabwe, Chile, and South Africa to try and ease the transition towards democratic government, are actually in conflict with international law and tend to fail in practice. The new research by Dr Ben Chigara from the University of Warwick’s School of Law, is published this week as a book entitled Amnesty in International Law: The legality under International Law of National Amnesty laws.

Dr Chigara points out that there are areas of international law (norms “jus cogens”) that restrict states even in their right to enter treaties with another state. He points to Article 53 of the Vienna Convention on the Law of Treaties which states that “a treaty is void, if at the time of its conclusion it conflicts with a peremptory norm of general international law”.

Dr Chigara cites internationally agreed laws and conventions such as the 1948 Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide that in his view meet this definition of “a peremptory norm of general international law” or a “jus cogens”. The existence of such “jus cogens” on human rights invalidates any national amnesty that prevents agents of any state who violated such human rights from being brought to justice.

In the Pinochet case Dr Chigara points that, despite Chilean laws’ attempt to protect Pinochet from prosecution for alleged former breaches of human rights, Chile in fact had an obligation under international law to try him or extradite him. As lord Browne-Wilkinson said at the time: “I have no doubt that long, before the torture Convention of the 1984 Sate torture was an international crime in the highest sense…the objective was to ensure a general jursidiction so that the torturer was not safe wherever he went…The purpose of the Convention was to introduce the principle aut dedre aut punire- either you extradite or you punish.”

Zimbabwe national racial reconciliation policy adopted in 1980 provides the researcher with the clearest evidence that such amnesties are not only illegal but are prone to simply collapse. He points to President Mugabe’s declaration in October 2000 that “Ian Smith and the Whites who participated in the massacre and genocide of our people, those who fought against us, we shall try”. Dr Chigara also points out that even the most internationally acclaimed national amnesty – that of South Africa - has not been without challenge. Steve Biko’s wife made a legal challenge to the amnesty in 1995. That challenge failed but Dr Chigara feels that such a challenge shows that the amnesty has not resolved lingering resentments within the country that abuses of human rights remain unpunished and the amnesty may not last the test of time.

For further information please contact:
Dr Ben Chigara, School of Law,
University of Warwick
tel: 024 76 523326

For review copies of the book contact:
Lissa on 01279 623584