The Viability of National Amnesties in View of the Increasing Recognition of Individual Criminal Responsibility at International Law 8 Michigan State University-DCL Journal of International Law 1999

8 Mich. St. U.-DCL J. Int'l L. 595 (1999)
The Viability of National Amnesties in View of the Increasing Recognition of Individual Criminal Responsibility at International Law

handle is hein.journals/mistjintl8 and id is 603 raw text is: THE VIABILITY OF NATIONAL AMNESTIES IN
VIEW OF THE INCREASING RECOGNITION OF
INDIVIDUAL CRIMINAL RESPONSIBILITY AT
INTERNATIONAL LAW
Dr. Kristin Henrard
INTRODUCTION
The problematic intersection and conflict between national amnesties
on the one hand and international law's increasing recognition of
individual criminal responsibility on the other hand is undoubtedly very
topical, as was underscored by the Pinochet decisions of the House of
Lords. Furthermore, there are a growing number of countries that are
wrestling with repressive pasts.1 Since amnesties are one of the possible
ways of dealing with that past, it can be expected that situations, similar
to the ones on which the Pinochet case was based, will re-occur.
Consequently, it seems appropriate to ponder the more general
underlying principles and devise certain guidelines for future cases in
which this tension would be present.
This article first of all gives an overview of the development at
international law of recognising individual criminal responsibility for
serious human rights violations. Secondly, it focuses on a specific
feature of this development, which has special relevance for the topic of
this article, namely that the official position of a person accused of such
violations does not shield him from responsibility. In this respect,
reference can be made to Milosevic's indictment by the International
Criminal Tribunal for the former Yugoslavia.
Consequently, national amnesties granted to previous rulers/members
of the ruling regime are not necessarily accepted and respected in terms
of international law. In this respect, it can be argued that there is a state
* Ph.D. Katholieke Universiteit Leuven, LL.M. Harvard Law School. The author is
presently a Universitary Lecturer in Constitutional Law and Human Rights at the University of
Groningen in the Netherlands.
1. Cf. Peter Harris & Ben Reilly, Preface to DEMOCRACY AND DEEP-ROOTED
CONFLICr: OPTIONS FOR NEGOTIATORS i, v (Peter Harris & Ben Reilly eds., 1998): (m)ost of
today's violent conflicts are not the wars between contending states of former years, but take
place within existing states. Many are inextricably bound up with concepts of identity, nation
and nationalism, and many stem from the competition for resources, recognition and power....

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