\n
\u00a0The Challenges Reparations for Mass Atrocities Present in Relation to Relevant Case Studies<\/strong><\/p>\n \n \n Author:<\/strong><\/p>\n \n Gamaliel Kan<\/p>\n Queen’s University, Belfast<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n Abstract<\/span><\/b><\/p>\n <\/p>\n Truth and Reconciliation Commissions (TRC) have been one of the mechanisms that are widely used to tackle the violation of human rights and to transition into democracy smoothly by revealing facts about what happened to victims of mass atrocities. However, is it more effective for a transitioning society to just focus on trials that emphasizes punishment or to focus on the facts of mass atrocities that victim might find closure? I hypothesize that ideally; both aspects should be focused on in order to reach a desirable outcome. But following recent development in international criminal law, it is increasingly difficult for both approaches to work complimentarily.<\/p>\n <\/p>\n Introduction<\/span><\/b><\/p>\n <\/p>\n Mass atrocity crimes refer to the three legally defined international crimes: genocide, crimes against humanity and war crimes. These are international crimes and that are so egregious that it affects the \u201ccore dignity of human beings\u201d.[1]<\/a> Therefore, after mass atrocities, reparation should be at the forefront of peace building.<\/p>\n <\/p>\n Perhaps one of the most cited notions of reparation is from Charzow case, that reparation should \u201cwipe out all the consequences of the illegal act and re-establish the situation\u201d where \u201cthe act had not been committed\u201d.[2]<\/a> However, going back to the original situation is impossible so reparation should focus on rebuilding and healing divided societies to achieve sustainable peace.<\/p>\n <\/p>\n \u201cHealing involves a long and painful journey, addressing the pain and suffering of victims, understanding the motivations of offenders, bringing together divided communities, trying to find a path to justice and ultimately peace.\u201d \u2013<\/i> Desmond Tutu<\/p>\n <\/p>\n We know that transitional justice in a post-conflict society is not a linear process. According to many victims, justice is a precondition for peace but it manifests in many forms.[3]<\/a> In Dr. Wendy Lambourne\u2019s field researches in countries like Cambodia, Sierra Leone and East Timor, revealed that the notion of justice is different among the interviewees. \u201cThe militia who killed my brother have to go to prison\u201d<\/i>, that is justice according to a Timorese victim. \u201cJustice is not only punishment of a criminal\u2026 it is also equity of distribution of resources and wealth of the nation\u201d<\/i>, a Cambodian interviewee answered. \u201cHaving a good strong political leader who is not bias and talk straight\u201d<\/i> is justice, according to a Sierra Leonean.[4]<\/a><\/p>\n <\/p>\n The first part of this articles dealt with advantages and disadvantages of retributive justice and restorative justice. Then the question of whether retributive justice works better than restorative justice will be discussed. I concluded that elements from both retributive and restorative justice need to be present, subject to the consensus of the people, for a smooth and peaceful transition. The second part of the article dealt with the legality issue of immunity and amnesty under international law. In terms of immunity, I concluded that the Rome Statute is clear on the issue of legality for State Parties and the international norm today does not extend immunity to core international crimes. In terms of amnesty, although the Rome Statue is silent on the legality of amnesty, developments on international criminal law suggests that amnesty should not be extended to cover core international crimes.<\/p>\n <\/p>\n Retributive justice<\/span><\/b><\/p>\n \u00a0<\/b><\/p>\n Justice is often thought in terms of retributive justice. Retributive justice theory considers that punishment is the best and morally acceptable response to crime.[5]<\/a> It focuses on the need to criminally prosecute perpetrators of human rights abuse and has been widely promoted as the main mechanism for transitional justice. Article I of the Convention on the Prevention and Punishment of the Crime of Genocide acknowledged that genocide is a crime under international law and states have the obligation to prevent and punish perpetrators.[6]<\/a> The Preamble of the Rome Statute highlighted the need to put an end to impunity for the \u201cmost serious crimes of concern to the international community\u201d.[7]<\/a> Victims also have the right to seek redress from national tribunals for violation of fundamental rights.[8]<\/a><\/p>\n <\/p>\n Domestic prosecution, especially in post conflict society is necessary in re-establishing the rule of law and for the people to regain trust in their own judicial system and government, because it is the government\u2019s commitment to accountability, which may not exist during the conflict.[9]<\/a> It also acts as deterrence for future acts of violence, by sending a clear message addressing the issue of impunity.<\/p>\n <\/p>\n However, it is important to note that in post conflict society, the rule of law might not exist. An authoritarian regime is often reflected in the judicial system. The courts are usually politicized, inefficient and have little independence. It may have stopped during extreme violence or it may be so corrupt that it supported the officials who carried out human rights abuses.[10]<\/a> This pose a huge problem as the purpose of the courts is to hold perpetrators accountable and when courts are unable to fulfill this, it violates the right to free and fair trial. Judicial reform is needed to rebuild the rule of law but it is a long, arduous and expensive process, which many post conflict countries simply could not afford. For example, after the conflict in East Timor and when the UNTAET arrived, there were only ten trained lawyers who remained in the country and none of them have experience in being a judge or prosecutor. They were left with the impossible task of interpreting Indonesian penal code through the lens of international human rights standards. Even when UNTAET left, the judges appointed lack training and coordination. Some took a short training in Australia, and Indonesia while some took a separate training program in Portugal. By 2003, a total backlog of 3,197 cases were recorded by the Office of the Prosecutor General and in 2005, all judges were dismissed by the Timor-Leste government for failing government capacity tests.[11]<\/a><\/p>\n <\/p>\n The retributive approach can be perceived as equating criminal punishment with vindictiveness and vengeance instead of focusing on reconstruction of society.[12]<\/a> As former deputy president of South Africa, Thabo Mbeki recalled, initially ANC leaders perception of justice was to \u201ccatch the bastards and hang them\u201d. He also noted that if this approach had been taken, South Africa \u201cwould never have undergone the peaceful change.\u201d[13]<\/a> Trials have been used in the past by new regime as a weapon to legitimize its presence and silence its enemies, so called \u201cvictor\u2019s justice\u201d. On the 11th<\/sup> May 2016, the head of the Jamaat-e-Islami party, Motiur Rahman Nizami was executed for war crimes committed during the 1971 liberation war in Bangladesh. However, the ICT of Bangladesh have been criticized by human rights organizations like No Peace Without Justice as a \u201cweapon of politically influenced revenge whose real aim is to target the political opposition\u201d[14]<\/a> and Human Rights Watch expressed concerns of the proceedings meeting fair trial standard when Nizami was only allowed four defense witnesses and was unable to challenge prosecution witness when their testimony had been allegedly be inconsistent.[15]<\/a> Trials in this instance failed to heal and reconcile divided communities as thousands of police were deployed after Jemaat-e-Islami called for protest of the execution.[16]<\/a><\/p>\n <\/p>\n Restorative Justice<\/span><\/b><\/p>\n \u00a0<\/b><\/p>\n Restorative justice focuses on repairing individual, relational and social harm caused by a crime by involving all parties, victims and perpetrators to consider the appropriate outcomes. It recognizes victim\u2019s right to have crimes acknowledge but also the right of perpetrators to reintegrate into the community.[17]<\/a> The use of Truth Commission has been one of the most promoted mechanism for restorative justice. Desmond Tutu referred the South African Truth and Reconciliation Commission (TRC) as restorative justice, which concerned less about punishment and more on restoring broken relationships through healing, harmony and reconciliation.[18]<\/a><\/p>\n <\/p>\n The reason for the establishment of a Truth Commission like the South Africa TRC is to give a \u201ccomplete picture of\u2026 the causes, nature and extent of the gross human rights violation\u201d including the perspective of the victims, motives of perpetrators by holding public hearing and conducting investigation.[19]<\/a> Often victims need to know what happened to them and their loved ones in order to have peace and closure, which will eventually lead to reconciliation after violence.<\/p>\n <\/p>\n \u201cNo government can forgive. No commission can forgive. They don\u2019t know my pain\u2026 only I can forgive and I must know before I can forgive<\/i>\u201d, a widow testified at TRC amnesty hearing in South Africa.[20]<\/a><\/p>\n <\/p>\n The goal of TRC to reconcile divided society by seeking \u201ctruth\u201d but its credibility and reliability can be challenged. It is very common for people to develop post-traumatic stress disorder (PTSD) or acute stress disorder (ASD) after a traumatic event. For example, a survey showed that a year after the Rwandan genocide, 2\/3 of children and adolescent survivors probably had post-traumatic stress disorder[21]<\/a> and another survey showed 24.8% of Rwandan respondents met symptom criteria for PTSD.[22]<\/a> It is well documented that memories of the traumatic event of PTSD sufferers tend to be \u201cincomplete and fragmented\u201d where \u201conly parts\u2026 may be accessible, and different parts on different occasions\u201d.[23]<\/a>. Because TRCs are different than courts, they do not have the same standard of proof or evidence or cross-examination to give credibility to victim\u2019s testimony. This questions the reliableness of victim\u2019s \u201ctruth\u201d and it is impossible to construct a complete picture when the \u201ctruth\u201d has been distorted, which means the mandate of TRC has failed.<\/p>\n <\/p>\n TRCs do give a platform for victims to speak, to let their sufferings known, but hearings often left people at loss. Assuming that facts of what happened will lead to healing is too simplistic and untrue because \u201cnow you have to deal with the knowledge that you have\u201d. When Marius Schoon, a South African who lost his wife and daughter because of a bomb sent by security forces, discovered the perpetrators identity, he said: \u201cit has been anything but reconciliatory for me<\/i>\u201d and that \u201cthere is a good chance\u2026 I might actually shoot him<\/i>\u201d. He would \u201cprefer to hate a system rather than people<\/i>\u201d and knowing that the security forces of National Party were responsible was enough for him. In the book, \u201cUnspeakble Truths\u201d, Hayner met with Margaret and Mandla, a mother and son from the town South of Johannesburg who survived the \u201cnight vigil massacre\u201d. They told their story before the TRC public hearing and stated that for her, her life has deteriorated since the hearing, as all she can think is the day of the massacre.[24]<\/a> The risk of re-traumatizing victims when they talk about their experiences is high and the South African TRC did give this issue serious attention and hired four mental health professionals and statement-takers were given training on how to respond to signs of trauma.[25]<\/a> However, most countries that have TRC will not have the means to have psychological services and it simply is not part of their culture to seek for these services. For example, years after the war in Mozambique, there were only nineteen psychologists and one psychiatrist in the country. In Sierra Leone, only one psychologist was available after the war.[26]<\/a><\/p>\n <\/p>\n TRCs are often associated with the grant of amnesties, however, only the South African TRC had the power to grant amnesty. Other TRCs can recommend the grant of amnesty but it is not guaranteed. Amnesties are crucial to maintain a fragile peace and can be used as a bargaining chip in negotiating a peace agreement. Judge Richard Goldstone pointed out that if South Africa insisted on Nuremberg-style trials, a peaceful transition to democracy would be impossible but if apartheid government \u201cinsisted on blanket amnesty, then negotiations would have broken down<\/i>\u201d.[27]<\/a> There are numerous examples of how blanket amnesty and lack of accountability had not only failed to achieve peace but was detrimental to the prospect of a peace agreement. For example, in Sierra Leone, the worst violence against civilians, including kidnapping of UN peacekeepers and British soldiers happened after the signing of Lome Peace Agreement, which granted blanket amnesty to all combatants and collaborators.[28]<\/a> Blanket amnesty granted and the lack of accountability in Haiti actually increased the violence and human rights breaches by police, special riot police, military and paramilitary forces.[29]<\/a><\/p>\n <\/p>\n Retributive Justice vs Restorative Justice<\/span><\/b><\/p>\n \u00a0<\/b><\/p>\n It is important to note that the context for each armed conflict is different. The aim of transitional justice is to develop a sustainable peace so that rebuilding of society based on the rule of law is possible. For transitional justice to be effective, we need to understand the conflict and know what the people need to move on. Individual accountability is crucial but often during conflicts, more than one party will be responsible for committing atrocities. During the war in Sierra Leone, several parties, like the Revolutionary United Front (RUF), Armed Forces Revolutionary Council (AFRC), Sierra Leone Army (SLA) and Civil Defense Forces (CDF) committed atrocities.[30]<\/a> To prosecute everyone responsible for atrocities is simply impossible, given the large amount of perpetrators. Also in a long, exhausted armed conflict where each side is incapable of defeating each other, focusing only on retributive justice can be harmful as it provides no incentives for the other party to end the conflict. For example, the Colombian conflict has been going on for over 50 years. When President Juan Manuel Santos re-ran for president in 2014, his mandate was to negotiate with FARC guerrillas to end the war, whereas his opposition, \u00d3scar Iv\u00e1n Zuluaga, pushed for tougher measures against FARC. President Santos received an overwhelming 50.95% of the votes, while Zuluaga received 45%.[31]<\/a> This shows Colombians are ready to compromise some justice for FARC to surrender its arms and end the conflict. Therefore, they acknowledge that amnesty will be granted to some fighters so they can reintegrate into society.<\/p>\n This is where TRC comes into the picture. Amnesties can act as an incentive for other perpetrators to come forward, acknowledge their responsibilities and provide \u201ctruth\u201d that victims need like, why their loved ones were targeted, where their buried and what they did. Although reliving painful experiences can re-traumatize victims, many reported that it provided emotional relief when they were able to get together with others to talk about their experiences. Despite Mandla\u2019s suffering, he did say that TRC public hearing was worth it and he is positive about it.[32]<\/a> Knowing the \u201ctruth\u201d will not be beneficial for all victims but for those who feel better after giving testimonies and knowing the details of torture and killings, TRC can make a significant help. While blanket amnesty lack basis and would most likely be rejected by the people as it provides zero elements of retributive justice, a conditional amnesty that applies to the less responsible, or requires truth telling, or reduced sentences maybe more legitimate and readily accepted by the people.<\/p>\n <\/p>\n An example of this hybrid between retributive justice and restorative is the South Africa TRC. The dilemma for South Africa was how to construct a \u201ccomplete picture\u201d while limiting impunity? And their solution was to reject blanket amnesty and opted for conditional amnesty. Perpetrators need to fulfil criteria before amnesty can be granted to them. These criteria includes the need to apply individually, make full disclosure of their human rights violations, attend before the Amnesty Committee hearing, which were open to public\u2026.[33]<\/a> Although truth revealed only offered limited justice, amnesty is the price that South Africa has to pay for peace and reconciliation. The SA Reconciliation Barometer 2015 report reported that 52.2% of South Africans believe that their friends and family have experienced reconciliation since the end of apartheid and 59.2% believe that South Africans have made progress in reconciliation since the end of apartheid.[34]<\/a><\/p>\n <\/p>\n Immunity and Amnesty under International Law<\/span><\/b><\/p>\n \u00a0<\/span><\/b><\/p>\n The development of international criminal law since the Nuremberg Tribunal, especially with the establishment of the International Criminal Court (ICC), has been moving towards individual accountability. However, the question about whether a person can be shield from prosecution under the doctrine of immunity is often raised. International law grants immunity to certain state officials like Head of States and diplomats from jurisdiction of foreign courts.[35]<\/a>\u00a0 Head of State immunity that protects head of States from foreign court\u2019s jurisdiction is a matter of customary international law, unlike Diplomatic immunity, which is set out in the Vienna Convention on Diplomatic Relations, further supported customary international law.[36]<\/a> When former head of State of Chile, Senator Pinochet came to the United Kingdom for medical treatment in 1998, Spain issued a request for his extradition, with charges of torture and conspiracy to torture. In the first instance, the Divisional Court quashed the arrest warrant because former head of State continues to enjoy immunity relating to \u2018public acts\u2019 performed during their position of head of State. Pinochet was not charged with personally torturing victims but with using the power vested in the head of State, therefore the judges considered it as an official act and not a private act, therefore Senator Pinochet was entitled to immunity as a head of State.[37]<\/a> This was appealed to the House of Lords and the decision was overturned, stating that Senator Pinochet\u2019s immunity could not prevent his extradition for torture.[38]<\/a> One interpretation that came to this decision was based on the 1984 Torture Convention, which necessitates the element of official involvement in the crime. As Lord Millett noted, \u201cinternational law cannot be supposed to have established a crime having the character of ius cogens and at the same time to have provided an immunity<\/i>\u201d.[39]<\/a> The judgment also stated that when it comes to international crimes, no immunity could exist as the obligations of the state was so strong that it overrides the customary international law \u2013 doctrine of immunity.[40]<\/a><\/p>\n \u00a0<\/span><\/b><\/p>\n In light of the ICC, the doctrine of immunity can be viewed as eroding. When States become State Party to the Rome Statute, they surrendered their immunities and are obliged to cooperate with the ICC to surrender individuals under the arrest warrant. Article 27(2) of the Rome Statute clearly states that immunities attached to the official capacity of a person would not interfere the Court\u2019s jurisdiction.[41]<\/a> However, Article 98(1) states that the ICC will not pursue the requests for surrender if it requires the State Party to act \u201cinconsistently with its obligation under international law with respect to the State or diplomatic immunity of a person\u2026 of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity<\/i>\u201d.[42]<\/a> This two provisions seemed to contradict each other but Article 98(1) only applies in the situation where it requires a State Party to surrender a national protected by immunity of a non-State Party, as insisting the surrender of that national requires the State Party to breach its obligation to respect immunities of a non-State Party under international law.[43]<\/a><\/p>\n <\/p>\n Although Article 98(1) creates an obstacle for the ICC to exercise its jurisdiction, there are ways to circumvent it. Chapter VII of the UN Charter grants the Security Council wide discretion to carry out appropriate measures to maintain or restore international peace and security. According to Article 25 of the Charter, all UN Member States are required to carry out those measures accordingly.[44]<\/a> So the Security Council could remove personal immunity attached to the national of non-State Party or order a State to cooperate fully with the ICC through Chapter VII decisions. This overrides the immunity and obliges the State Party to surrender the individual. When the Security Council orders a non-Party State to the Rome Statute to fully cooperate, the non-Party State\u2019s obligation will be the same as any State Party\u2019s. In the Al Bashir case, the ICC issued arrest warrants for President Al Bashir for crimes against humanity, war crimes and genocide. When President Al Bashir visited Malawi, an ICC State Party, Malawi failed to surrender President Al Bashir. Malawi argued that Sudan is not a State Party, therefore, under Article 98(1), Malawi has the right to not surrender President Al Bashir. Sudan is a non-State Party so President Al Bashir continues to enjoy immunity. The Pre-Trial Chamber rejected Malawi\u2019s argument, stating that the Security Council had referred the situation in Darfur to the ICC and required all states to cooperate fully, therefore, Sudan, though a non-State Party, was placed under the same obligations of a State Party.[45]<\/a><\/p>\n <\/p>\n Amnesty is usually reached through political agreements, with the aim of improving relations between the parties to ensure smooth transition to peace and stability. It ensures impunity and prevents prosecution for acts that otherwise would be criminal.\u00a0 Following the implementation of the Rome Statue and setting up of the ICC, the use of amnesty and TRCs to deal with violations of basic human rights have been challenged. The purpose of the Rome Statute was to address the issue of impunity so, in a sense, we are saying goodbye to TRCs by putting \u201cpeople who are guilty of certain crimes in the same position as\u2026 the leaders of Germany in 1943 by demanding unconditional surrender<\/i>\u201d.[46]<\/a> However, there is not a single international treaty that bans the use of amnesty. Article 16 of the Rome Statute gives the Security Council the power to defer proceedings for 12 months by passing a resolution.[47]<\/a> This signals the acknowledgement that peace and justice do not always coincide, and when there is a clash, peace will prevail.[48]<\/a> Moreover, Article 6(5) of the Additional Protocol II to the Geneva Conventions of 1949 stated that \u201cat the end of hostilities, the authorities in power shall\u2026 grant the broadest possible amnesty to persons who have participated in the armed conflict<\/i>.\u201d[49]<\/a><\/p>\n <\/p>\n However, Article 31(1) of the Vienna Convention on the Law of Treaties required the treaty to be \u201cinterpreted in good faith<\/i>\u201d and \u201cin their context\u2026 in light of its object or purpose<\/i>\u201d.[50]<\/a> Additional Protocol II was created to ensure greater protection for victims of armed conflict. If it has been interpreted to justify amnesties for war crimes, it will be against the primary objective of the protocol. Moreover, the ICRC asserted that Article 6(5) was not intended to cover international crimes, despite the fact that this was not clear when the Protocol was drafted.[51]<\/a> Article 6(5) is intended to discourage prosecution under ordinary domestic criminal law for those who took part in hostilities against government but respected international humanitarian law (IHL). In an non-international armed conflict, people who fought against the government may face prosecution under national legislation even when they complied with IHL.[52]<\/a> So Article 6(5) is encouraging national authorities to grant amnesty to those who respected IHL and not to those who committed international crimes. Therefore, the grant of amnesty would not derail from the principle of accountability for core international crimes.<\/p>\n <\/p>\n When Morris Kallon and Brima Bazzy Kamara, Commander of RUF and AFRC argued before the Special Court for Sierra Leone (SCSL) that Article IX of the Lome Agreement obliged the government of Sierra Leon to take no judicial action against perpetrators and collaborators, the appeal chamber of SCSL ruled that amnesties granted by Lome Peace Agreement does not bar it from exercising its jurisdiction and it is a \u201ccrystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law<\/i>\u201d.[53]<\/a> It also ruled that just because the UN and other third state parties signed the agreement, it does not mean that it is an international treaty that creates obligations and states have the responsibility to not forget crimes against international law.[54]<\/a> The Human Rights Committee stated that the grant of amnesties for State officials for torture are \u2018generally incompatible<\/i>\u2019 with state\u2019s obligation to investigate, prosecute and deter human rights violations.[55]<\/a> The ICTY stated that any amnesty granted for torture would be delegitimize.[56]<\/a> In the Barrios Altos<\/i> case, the Inter-American Court of Human Rights went further and prohibited all amnesty designed to remove responsibility and prevent punishment for serious human rights violations concerning non-derogable rights such as, torture, arbitrary execution and forced disappearance.[57]<\/a><\/p>\n <\/p>\n Article 17 of the Rome Statute set out instances where a case would be inadmissible before the ICC and it includes instances where a State has carried out investigation or prosecution.[58]<\/a> Amnesty, however, was not mentioned in Article 17. The term \u2018investigation\u2019 in Article 17 has been argued to include amnesties as Article 17 does not specifically state that investigation need to be criminal in nature. If amnesties are followed by inquiry like the South African TRC, that would be sufficient enough to constitute an \u2018investigation\u2019, making the case inadmissible. However, this expansive interpretation can be easily challenged as Article 17(2) of the Rome Statute clearly stated that the intention of investigation and prosecution is to bring the person responsible to justice.[59]<\/a> The Preamble of Rome Statute highlighted the issue of impunity and individual accountability signifies that the drafters intended the investigation to be criminal in nature. Since TRCs and amnesties are not criminal in nature and are widely interpreted as inconsistent with justice, it is likely that it would not constitute an \u2018investigation\u2019 under Article 17. The only way for the ICC to refrain from a case concerning the grant of amnesties for international crimes is either the deferral by the Security Council, or if the Prosecutor believes that carrying out an investigation on this particular case would not serve the interests of justice. The seriousness of the crime and interests of the victims will need to be balanced and the Pre-Trial Chamber would need to approve this.[60]<\/a><\/p>\n Conclusion<\/span><\/b><\/p>\n \u00a0<\/b><\/p>\n In the first part of this article, we looked at both the advantages and disadvantages of both retributive justice and restorative justice and which works best. It is important that we do not treat armed conflicts as monolithic. Although states should strive to end impunity, it is well recognised that this hard-core stance is detrimental in achieving peace as it provides no incentive for armed groups to surrender arms and end the conflict. A hybrid system of both retributive and restorative justice can help address the issue of impunity and offer incentives for armed fighters to surrender arms and reintegrate into society. Nonetheless, the people must be willing to accept this. For example, if Colombians are not ready to compromise some form of justice in order for peace to prevail, this hybrid system would lack basis as the people would reject it.<\/p>\n <\/p>\n In the second part of this article, we see the relationship between individual accountability and immunity or amnesty under international law is complex. The Rome Statute is clear that the official capacity of State Party will not bar the ICC from exercising its jurisdiction. As of March 2016, 124 states out of 193 states ratified the Rome Statute. Those 124 states are obliged to let go of the doctrine of immunity and uphold individual accountability. States that are not bound by the Rome Statue are shrouded in uncertainty. Although the Pinochet <\/i>case set up the precedent for limiting immunity, it is only confined to the Torture Convention. Since ongoing developments in international criminal law are moving towards ending impunity, immunity can be seen as not extending to core international crimes. For the use of amnesty for international crimes, although there are some arguments that supports this, those arguments tend to be weak and are easily countered by the numerous conventions like the Geneva Conventions and Torture Convention that imposed a universal jurisdiction. Although a complete prohibition as seen in the Barrios Altos<\/i> case have not emerge as the case has not been adopted by other international courts,[61]<\/a> the current position on amnesties under international law can be seen as not extending to core international crimes.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n Bibliography<\/span><\/b><\/p>\n Cases<\/b><\/p>\n Prosecutor v Kallon and Kamara (2004) SCSL-2004-15-AR72(E)<\/p>\n Case Concerning the Factory at Chorz\u00f3w (Germany v Poland) (Merits) PCIJ Rep Series A No 17<\/p>\n Prosecutor v Anto Furundzija (Appeal Judgment) (2000) ICTY IT-95-17\/1-A<\/p>\n R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147<\/p>\n Re Pinochet [1998] All ER (D) 629<\/p>\n <\/p>\n Table of Legislation <\/b><\/p>\n Promotion of National Utility and Reconiliation Act 34 of 1995<\/p>\n Vienna Convention on the Law of Treaties<\/p>\n Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol II 1977)<\/p>\n Universal Declaration of Human Rights 1948<\/p>\n Rome Statute of the International Criminal Court<\/p>\n <\/p>\n Books<\/b><\/p>\n Broomhall B. International Justice & the International Criminal Court<\/i> (1st<\/sup> edn Oxford 2003)<\/p>\n Chigara B. Amnesty in International Law<\/i> (1st<\/sup> edn Longman 2002)<\/p>\n Clamp K. Restorative Justice in Transition<\/i> (1st<\/sup> edn Routledge 2014)<\/p>\n Cryer R, Robinson H F D & Wilmshurst E, An Introduction to International Criminal Law and Procedure<\/i> (3rd<\/sup> edn, Cambridge 2014)<\/p>\n Hayner P. B. Unspeakable Truths<\/i> (3rd<\/sup> edn Routledge 2011)<\/p>\n Kerr R. and Mobekk E. Peace & Justice<\/i> (Polity 2007)<\/p>\n Lincoln J. Transitional Justice, Peace and Accountability<\/i> (1st<\/sup> edn Routledge 2011)<\/p>\n McAuliffe P., Transitional Justice and Rule of Law Reconstruction<\/i> (Routledge 2014)<\/p>\n Murungu C. and Biegon J. Prosecuting International Crimes in Africa<\/i> (1st<\/sup> edn PULP 2011)<\/p>\n Book Chapters<\/b><\/p>\n Boraine A. \u2018Truth and Reconciliation Commission in South Africa Amnesty: The Price of Peace\u2019 in Elster J. (eds) Retribution and Reparation in the Transition to Democracy<\/i> (1st<\/sup> edn Cambridge University Press 2016)<\/p>\n Herbert C. Rioux C. and Wemmers J. M. \u2018Reparation and recovery in the aftermath of widespread violence\u2019 in Wemmers J. M. (eds) Reparation for Victims of Crimes against Humanity<\/i> (Routledge 2014)<\/p>\n <\/p>\n Journal Articles<\/b><\/p>\n Lambourne W. \u201cTransitional Justice and Peacebuilding After Mass Violence\u2019 (2008) 3 International Journal of Transitional Justice<\/p>\n Naqvi Y. \u2018Amnesty for war crimes\u2019 (2003) 851 International Review of the Red Cross<\/p>\n Neugebauer R. Fisher PW. Turner JB. Yamabe S. Sarsfield JA Stehling-Ariza T. \u2018Post-traumatic stress reactions among Rwandan children and adolescent in the early aftermath of genocide\u2019 (2009) 38 (4) International Journal of Epidemiology<\/p>\n Pham P. N. \u2018Trauma and PTSD Symptoms in Rwanda\u2019 (2004) 292 (5) Journal of American Medical Association<\/p>\n Dapo Akande & Sangeeta Shah, \u2018Immunities of State Officials, International Crimes and Foreign Domestic Courts\u2019 [2011] 21(4) EJIL 818<\/p>\n <\/p>\n <\/p>\n Report<\/b><\/p>\n Brewin CR \u2018Memory and Post-Traumatic Stress Disorder\u2019, Professor of Clinical Psychology, University College London, (2003)<\/p>\n Hofmeyr J. and Govender R. \u2018SA Reconciliation Barometer 2015\u2019 (Institute of Justice and Reconciliation 8th<\/sup> December 2015)<\/p>\n Samuel K. \u2018Rule of Law Reform in Post-Conflict Countries\u2019 (CPR Unit Paper No.37 2006)<\/p>\n United Nations Office on Genocide Prevention \u2018Framework of analysis for Atrocity Crimes, (2014)<\/p>\n <\/p>\n Newspaper Article <\/b><\/p>\n Aljazeera, \u2018Bangladesh executes Motiur Rahman Nizami for war crimes\u2019 (11th<\/sup> May 2016) http:\/\/www.aljazeera.com\/news\/2016\/05\/bangladesh-hangs-nizami-1971-war-crimes-160510182253819.html<\/a><\/p>\n \u00a0<\/span><\/p>\n Aljazeera, \u2018Santos wins Colombia\u2019s presidential vote\u2019 Aljazeera(16th<\/sup> June 2014) http:\/\/www.aljazeera.com\/news\/americas\/2014\/06\/colombia-presidential-election-2014615212120381935.html<\/a><\/p>\n <\/p>\n Websites<\/b><\/p>\n https:\/\/www.hrw.org\/news\/2016\/05\/09\/bangladesh-suspend-death-penalty-war-crimes-convict<\/a><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n [1]<\/a> United Nations Office on Genocide Prevention \u2018Framework of analysis for Atrocity Crimes, (2014)<http:\/\/www.un.org\/en\/preventgenocide\/adviser\/pdf\/framework%20of%20analysis%20for%20atrocity%20crimes_en.pdf<\/a>> accessed on 14th<\/sup> May 2016<\/p>\n<\/div>\n [2]<\/a> Case Concerning the Factory at <\/i>Chorz\u00f3w (Germany v Poland)<\/i> (Merits) PCIJ Rep Series A No 17<\/p>\n<\/div>\n [3]<\/a> Christophe Herbert and others, \u2018 Reparation and recovery in the aftermath of widespread violence\u2019 in M. Wemmers (eds) Reparation for Victims of Crimes against Humanity<\/i> (Routledge, 2014)<\/p>\n<\/div>\n [4]<\/a> W. Lambourne, \u201cTransitional Justice and Peacebuilding After Mass Violence\u2019 (2008) 3 International Journal of Transitional Justice<\/p>\n<\/div>\n [5]<\/a> P. McAuliffe, Transitional Justice and Rule of Law Reconstruction<\/i> (Routledge. 2013) 125<\/p>\n<\/div>\n [6]<\/a> UNGA Res 260 (9 December 1948) UN Doc A\/RES\/260(III)<\/p>\n<\/div>\n [7]<\/a> UNGA, Rome Statute of the International Criminal Court, (17 July 1998)<\/p>\n<\/div>\n [8]<\/a> Universal Declaration of Human Rights 1948, Art 8<\/p>\n<\/div>\n [9]<\/a> Rachel Kerr and Erin Mobekk, \u2018Peace & Justice<\/i>\u2019 (Polity, 2007)<\/p>\n<\/div>\n [10]<\/a> Ibid 107<\/p>\n<\/div>\n [11]<\/a> Kirsti Samuel, \u2018Rule of Law Reform in Post-Conflict Countries\u2019 (CPR Unit Paper No.37,2006)<http:\/\/siteresources.worldbank.org\/INTCPR\/Resources\/WP37_web.pdf<\/a>> accessed on 12th<\/sup> May 2016<\/p>\n<\/div>\n [12]<\/a> Padraig McAuliffe, Transitional Justice and Rule of Law Reconstruction<\/i> (Routledge, 2013) 126<\/p>\n<\/div>\n [13]<\/a> Alex Boraine, \u2018Truth and Reconciliation Commission in South Africa Amnesty: The Price of Peace\u2019, Retribution and Reparation in the Transition to Democracy<\/i>, Jon Elster (1st<\/sup> Edn, Cambridge University Press 2016)<\/p>\n<\/div>\n [14]<\/a> Aljazeera, \u2018Bangladesh executes Motiur Rahman Nizami for war crimes\u2019 (11th<\/sup> May 2016)< http:\/\/www.aljazeera.com\/news\/2016\/05\/bangladesh-hangs-nizami-1971-war-crimes-160510182253819.html<\/a>> accessed on 12th<\/sup> May 2016<\/p>\n<\/div>\n [15]<\/a> Human Rights Watch, \u2018Suspend Death Penalty for War Crimes Convict\u2019 (9th<\/sup> May 2016)< https:\/\/www.hrw.org\/news\/2016\/05\/09\/bangladesh-suspend-death-penalty-war-crimes-convict<\/a>> accessed on<\/p>\n<\/div>\n [16]<\/a> Aljazeera (n14)<\/p>\n<\/div>\n [17]<\/a> Kerry Clamp, \u2018Restorative Justice in Transition<\/i>\u2019 (1st<\/sup> edn, Routledge, 2014) 10-16<\/p>\n<\/div>\n [18]<\/a> Ibid 69<\/p>\n<\/div>\n [19]<\/a> Promotion of National Unity and Reconciliation Act34 of 1995 Chapter 2 S3<\/p>\n<\/div>\n [20]<\/a> Boraine (n13)<\/p>\n<\/div>\n [21]<\/a> Richard Neugebauer and others, \u2018Post-traumatic stress reactions among Rwandan children and adolescent in the early aftermath of genocide\u2019 (2009) 38 (4) IJE< http:\/\/ije.oxfordjournals.org\/content\/38\/4\/1033.full.pdf+html<\/a>> accessed on 14th<\/sup> May 2016<\/p>\n<\/div>\n [22]<\/a> Phuong N. Pham, \u2018Trauma and PTSD Symptoms in Rwanda\u2019 (2004) 292 (5) JAMA<http:\/\/jama.jamanetwork.com\/article.aspx?articleid=199193<\/a>> accessed on 14th<\/sup> May 2016<\/p>\n<\/div>\n
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