Should Rebels Be Amnestied?
36 Pages Posted: 28 Jul 2013
Date Written: July 28, 2013
This paper was first presented at a conference organized by the Grotius Centre in Hague on the jus post bellum. It seeks to take a new look at a critical question, whether rebels in non-international armed conflicts should benefit from an amnesty at the close of hostilities. Such an amnesty effectively amounts to recognizing a privilege of belligerency retrospectively for rebels, at least insofar as the penal consequences of their acts are concerned. Protocol II takes a cautious position in that direction requiring states to "endeavor to grant" such amnesties, but the provision clearly created some unease at the 1974-77 conference. The chapter traces this unease to the fact that it is not clear what the rationale for the rule is, nor why it has its place in an international humanitarian law treaty. Amnesties may indeed facilitate peace or reconciliation, but one could also argue that in absolving those guilty of some of the worst offences against the state's order they are the very anti-thesis of seeking to reestablish the rule of law. The argument is often heard that conferring a privilege of belligerency will encourage non-state actors' compliance with international humanitarian law, but that simplistic assumption is criticized as not psychologically or sociologically plausible. Inquiring into the foundation of the privilege of belligerency in international armed conflicts, it is argued that contrary to what is often assumed the privilege has no logical or necessary connection to the jus in bello project, and instead manifests the relative legitimacy of war, even in an age of jus contra bellum, as that form of violence engaged in by states or entities that can be assimilated to it. In this classical view, then, the privilege of belligerency results from an "agreement to disagree" between equals against the background of an irreducible international order. In a priori non-international situations, the ability to emulate state-like characteristics and produce an objectively international situation by puncturing the legal unity of the state substantially aligns such situations with those of international armed conflicts. The amnesty then manifests a recognition that the "criminal" had effectively become the "enemy." However, that particular concept of the foundation of the privilege of belligerency is only so strong as international society's concept of the jus ad bellum is relatively weak. The privilege effectively protects the situation of the unjust/illegal warrior in ways that may be hard to rationalize, especially in a context where its humanitarian benefits have been shown to be meagre. In non-international armed conflicts, Protocol II's injunction to confer amnesties covers both acts of killing in war and the very fact of taking up arms. The latter is not a humanitarian issue, and it is therefore unclear what business a humanitarian treaty has of telling states how they should deal with a fundamental threat to their internal sovereignty. To the extent that the former is not strictly necessary to the humanitarian project, the encouragement to provide an amnesty is both over inclusive (encouraging amnesties for unjust/illegal rebellions) and under inclusive (failing to render amnesty compulsory in cases where they are manifestly just/legal). The paper finds that whether amnesties should be granted ultimately depends on whether one considers that there is at present a jus ad rebelium in international law. It concludes with a few thoughts on the power of considering these issues ex post in the just post bellum, as a way of evaluating a non-state actor's overall performance in war that safely fuses jus in bello and jus in bellum issues.
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