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Amnesty: unpopular aspect of transitional justice

In the context of the implementation of transitional justice, regardless of the country or nature of the conflict, there is always the question of amnesty for former combatants. So, why is it an issue? Chief of the analytical department of UHHRU Oleg Martynenko knows the answer.

Firstly, the issue of amnesty is brought up not just by combatants / “rebels” / “separatists” / “conspirators” and others, but also by their families, which automatically at least triples the number of interested persons. Few countries can ignore such a huge part of their population.

Secondly, Protocol II to the Geneva Conventions explicitly states that after hostilities, the authorities in power “shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict.”

So why does this issue encounter such fierce opposition during the implementation of transitional justice, when it is supported not just by a large part of the population but also by international requirements?

Chief of the analytical department of UHHRU Oleg Martynenko
Chief of the analytical department of UHHRU Oleg Martynenko

Here we must mention one thing that is unfavorable to the concept of amnesty.

The provisions regarding post-conflict amnesty are perceived unfavorably today not simply because the world has changed since the 1970s when the Geneva Conventions were written. The world’s negative experience with amnesty is considered as well, making this practice lose even the support of the UN leadership over the last 15 years. The reason for this was the granting of broad and unjustified amnesties, with the exception of the unique situation in South Africa.

Under these circumstances, the UN emphasized the need for more elaborate amnesty laws, since “the United Nations must reject any amnesty for genocide, war crimes or crimes against humanity” (Kofi Annan, 2004).

However, despite all the skepticism, every post-conflict country undergoes a stage of discussion of the amnesty’s format and scope. This is due to perhaps the most significant reason – practical considerations of domestic policy.

In the case of Ukraine, the first practical aspect is the number of people that could be facing criminal prosecution. According to rough estimates, there may be over 63,000 members of the military and law enforcement (soldiers, police officers, prosecutors) from the occupied territories, with over 37,000 of those from the so-called “DPR”/”LPR”. Is it possible to convict (where there is proof of guilt) even 30% of them (considering that Ukrainian correctional facilities are currently housing 44,000 inmates? Can we effectively double that number? Hardly. The only solution is to use alternative punishment methods as well as amnesty.

In addition to the problems associated with criminal prosecution, there is also the shortage of investigators and judges to contend with. It leads to an average yearly workload of 80 to 200 cases for a police investigator, and 350-600 cases for a prosecutor. Monthly load for a judge of a local general court is 57 cases. Last year, Ukrainian courts had over 26,000 cases that lasted more than one year, over 4,000 cases that lasted more than 2, and 2,303 cases that went beyond 3 years. Can justice be served efficiently under such circumstances without alternative forms of punishment and amnesty (full, partial or conditional)? Unlikely.

The second practical aspect is the state interests in cases on war crimes and international crimes. It’s no secret that the United Kingdom has granted amnesty to Northern Irish terrorists in exchange for information important to the investigation. In certain cases, even former militants serving up to 9 life sentences have been pardoned. This decision was so unpopular with the British public that the Prime Minister had to make several unofficial personal visits to the families of the victims “for a cup of tea”, in order to ease social tensions.

It is quite possible that after the conflict in Donbas ends, Ukraine will also have to employ amnesty to prove Russia’s involvement before international tribunals and receive reparations.

The third practical aspect is the need to ensure social equilibrium and stability at the community level. The Law of Ukraine On Prevention of Prosecution and Punishment of Persons that Took Part in the Events in Donetsk and Luhansk Oblasts of 16 September 2014, informally dubbed the Amnesty Law, could be considered the first step in this direction. The law provides for pardons to “members of armed groups”, members of self-proclaimed authorities in Donetsk and Luhansk oblasts, as well as those who opposed the anti-terrorist operation. Due to numerous flaws, the law was heavily criticized by lawyers. However, its main focus is not on criminal prosecution, it’s more of an attempt to reduce levels of hostility and animosity among various population groups. As M. Gnatovskyi rightly remarked, “the Donbas Amnesty Law is so flawed, it’s probably meant not for use, but rather to show Ukraine’s willingness to negotiate.”

Thus, despite the unpopularity of the idea of ​​amnesty in a post-conflict society, there are still reasons to consider it an integral component of transitional justice. Approaches to the use of amnesty may include national referendums, mechanisms for alternative forms of punishment and lustration, as well as determination of the conditions, terms and scope of amnesty for each category of persons. This will require long and coordinated efforts on the part of the academic community, international experts, law enforcement and the judiciary. We hope that the government will have enough political will to move forward in this direction.

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