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NAUJILJ 8 (1) 2017
TRANSITIONAL JUSTICE: RECONCILING DOMESTIC AMNESTY WITH THE
UNIVERSAL JURISDICTION OF FOREIGN STATES*
Abstract
From the perspective of State sovereignty, it may be argued that a State should be allowed to decide
freely how to deal with crimes committed on its territory, including by granting amnesties. However,
under the principle of universal jurisdiction, all States have the power to prosecute perpetrators of
international crimes regardless of the place where they were committed and regardless of the
nationality of the victims or the perpetrators and, as a consequence, domestic amnesties may not be
invoked as a bar to the universal jurisdiction offoreign courts over perpetrators of international crimes.
One State cannot dictate how other States should react to those crimes. This article argues that although
criminal prosecutions under the principle of universal jurisdiction are desirable and should be
encouraged, considerations of peace and democratic transition in the territorial State have to be
carefully calculated and that, therefore, criminal prosecutions by foreign prosecutors may need to be
differed in favour of amnesty processes in the affected States. Guidelines to be followed in this
balancing exercise are provided.
Key words: Transitional Justice; Amnesty, International Crimes, Universal Jurisdiction
1. Introduction
While many considered amnesty an over-studied phenomenon in the 1980's, it has recently taken on
renewed importance. The trend toward increased extraterritorial prosecutions under the principle of
universal jurisdiction suggests that, in the years ahead, numerous states may need to determine whether
to accord such legislation extraterritorial validity.' The term amnesty refers to an act of forgiveness that
a sovereign State grants to individuals who have committed criminal acts.2 It eliminates the criminal
nature of the conduct,3 which is deemed not to have constituted an offence and any criminal proceeding
that may have been instituted is extinguished.' From the perspective of State sovereignty, it may be
argued that a State should be allowed to decide freely how to deal with crimes committed on its territory,
including by granting amnesties.s As the Special Court for Sierra Leone once observed '[T]he grant of
amnesty or pardon is undoubtedly an exercise of sovereign power which, essentially, is closely linked,
as far as crime is concerned, to the criminal jurisdiction of the State exercising such sovereign power'.'
When an amnesty law is passed over such crimes as genocide, crimes against humanity and war crimes
over which all States have universal jurisdiction, however, sovereignties may 'overlap'.' Two or more
*By Evode KAYITANA, LLB (NUR), LLM (Unisa), LLD (NWU, Potchefstroom). The author is a lecturer in the
School of Law, University of Rwanda. E-mail: ekayitana@yahoo.fr
WW Burke- White 'Refraining Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty
Legislation' (2001) 42 Harvard International Law Journal 467-533, at 467-468.
2NNJurdi The International Criminal Court and National Courts: A Contentious Relationship (Surrey: Ashgate, 2011),
at 73.
3 The above definition excludes from the definition of amnesty, executive (presidential) pardons, which remit the
penalty but do not expunge the conviction. CCJoyner 'Redressing Impunity for Human Rights Violations: The Universal
Declaration and the Search for Accountability'(1998) Denver Journal ofInternational Law and Policy 591-624, at 612
and UN ESC 'Study on Amnesty Laws and their Role in the Safeguard and Promotion ofHuman Rights: Preliminary
Report by Mr Louis Joinet, Special Rapporteur' UN Doc E/CN 4/Sub 2/1985/16 (21 June 1985), at 4.
4 Joyner, op.cit, at 612; UN ESC, op.cit, at 3 and PTK Rakate The Duty to Prosecute and the Status of Amnesties
Grantedfor Gross and Systematic Human Rights Violations in International Law: Towards a Balanced Approach Model
(LLD-thesis: UNISA, 2004), at 22.
s J Stigen The Relationship between the International Criminal Court and National Jurisdictions: The Principle of
Complementarity (Leiden: Martinus NijhoffPublishers, 2008), at 419 andA O'Shea Amnesty for Crime in International
Law and Practice (The Hague: Kluwer Law International, 2002) at 96.
6 Prosecutor v Kallon and Kamara Decision on Challenge to Jurisdiction: Lomd Accord Amnesty Case Nos SCSL-
2004-15-AR72( E); SCSL-2004-16-AR72(E) (13 March 2004) para 75. See also A Cassese 'On the Current Trends
towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law' (1998) 9 European
Journal ofinternational Law 2-17, at 11 and R Cryer et alAn Introduction to International Criminal Law and Procedure
2nd ed (Cambridge: Cambridge University Press, 2010), at 43.
7 Cryer et al, op.cit, at 43.
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