Introduction

At a time when it is increasingly asserted that the grant of amnesty for international crimes is prohibited by international law, it has been found interesting to explore what states’ constitutions say about amnesty.[1] The present contribution examines whether and in what manner states’ constitutions address the issue of amnesty. In particular, it assesses whether the claim that there is a crystallising norm of customary international law prohibiting the grant of amnesty for international crimes is supported by positive constitutional law.[2] This research has been made possible thanks to the World’s Constitutions database created by the Comparative Constitutions Project and available online.[3]

Terminology

For the purpose of this research, amnesty and pardon have been treated as equivalent notions since both mechanisms generally pursue the same objective, i.e. providing immunity from the penal consequences of a crime. The main difference between them is that whereas amnesty as a rule exonerates categories of offenders before conviction, pardon is usually granted on an individual basis after conviction.[4] A further reason for assimilating the two mechanisms is that national legal systems often use different terminology when it comes to referring to amnesty and pardon. In the first place, amnesty is sometimes designated by the term general pardon, as opposed to special or individual pardon. For example, the Hungarian constitution provides that while the National Assembly is competent to grant general pardons, the president has the right to issue individual pardons.[5] Conversely, the Japanese constitution refers to general amnesty and special amnesty, the latter term designating the mechanism that other legal systems characterise as pardon.[6]

On a broader level, as common law systems generally do not use the term amnesty, references to the power of pardon (or the mercy prerogative) within the constitutions of those countries usually include general or collective pardons – corresponding to the notion of amnesty as understood in Roman-law systems – as well as individual pardons.[7] For instance, the United States constitution’s provision empowering the president to grant ‘reprieves and pardons’ has been used on several occasions as the legal basis for declarations of amnesty.[8]

Constitutional references to amnesty

Of the 193 UN member states’ constitutions, 186 refer to amnesty and/or pardon, with 105 of them referring to both. The constitutions which refer to both amnesty and pardon include, for example, those of Argentina, Brazil, Egypt, France, Indonesia, Italy, Mauritania, Mongolia, the Netherlands, Peru, the Russian Federation, Switzerland, Tunisia, Turkey and Ukraine.

There are 77 constitutions which refer only to pardon. Noticeably, they include the constitutions of all the Commonwealth member states (53), with the exception of Australia and Canada, whose constitutions do not mention clemency at all, and Cameroon, Mozambique and South Africa, whose constitutions also refer to amnesty. Among the constitutions referring only to pardon, one can also find, for example, those of Afghanistan, Belgium, China, Germany, Iran, Nepal, Norway, Sudan, Thailand and the United Arab Emirates.

There are four constitutions which refer exclusively to amnesty, namely those of Cambodia, Guatemala, Laos and Montenegro.

Only six constitutions do not mention either amnesty or pardon, i.e. those of Andorra, Australia, Bosnia and Herzegovina, Canada, Saudi Arabia and Yemen. Yet, according to the Amnesty Law Database developed by Dr Mallinder, amnesties have been passed in all of these countries except Andorra.[9]

REFERENCES TO AMNESTY AND/OR PARDON NUMBER OF CONSTITUTIONS (total: 193 UN member states)
Reference to amnesty or pardon 186
Reference to amnesty and pardon 105
Reference to pardon only 77
Reference to amnesty only 4
No reference to either amnesty or pardon 7

What constitutions say about amnesty

While most constitutional references to amnesty are limited to vesting the right in one or two of the state’s organs, as examined in the following section, other categories of amnesty references have been identified which will be examined in turn below.

Competence to grant amnesty

Historically, the power to grant pardons and amnesties was the exclusive prerogative of the Sovereign. In modern times, however, while the pardoning power usually remained in the hands of the head of state, the power to amnesty typically came to be vested in the legislature.[10] This postulate seems to be corroborated by the results of this research. Indeed, of the 105 constitutions referring to both amnesty and pardon, 80 entrust the right to amnesty with the legislative assembly and the pardoning power with the head of state. Of the remaining 26 constitutions, 13 vest both the amnesty and pardon prerogatives in the executive, namely those of Bhutan, Bolivia, the Czech Republic, Denmark, Eritrea, Iceland, Indonesia, Japan, Monaco, Myanmar, Slovakia, Spain and Turkmenistan. Conversely, the constitutions of Nicaragua, Switzerland and Uruguay confer both powers to the parliament. As to the remaining ten constitutions, while those of Colombia, the Republic of Korea, the Democratic People’s Republic of Korea, the Philippines and Serbia entrust pardon with the executive and amnesty with both the executive and legislative organs, those of Ethiopia, Georgia, Solomon Islands, Somalia and South Africa likewise confer the pardon prerogative to the executive but do not state which organ may grant amnesty, though they refer to the latter mechanism.

Of the four constitutions providing only for the amnesty prerogative, the Guatemalan instrument is alone in vesting the right exclusively in the parliament, those of Cambodia, Laos and Montenegro stating that both the legislative and executive organs are competent to grant amnesty. The picture is clearer as regards the 77 constitutions which only provide for the pardoning power as they all entrust it with the head of the executive.

LEGISLATIVE OR EXECUTIVE POWER NUMBER OF CONSTITUTIONS (total: 193 UN member states)
Reference to amnesty and pardon 105
Amnesty = legislative power / pardon = executive power 80
Amnesty and pardon = executive power 13
Amnesty and pardon = legislative power 3
Amnesty = legislative and executive power / pardon = executive power 5
Amnesty = no information / pardon = executive power 5
Reference to amnesty only 4
Amnesty = legislative power 1
Amnesty = legislative and executive power 3
Reference to pardon only 77
Pardon = executive power 77
No reference to either amnesty or pardon 6

Special majority requirement

Fourteen constitutions require that amnesty laws be approved by a special majority of the legislative assembly.[11] For example, the Greek constitution provides that amnesties may only be granted ‘by statute passed by the Plenum of the Parliament with a majority of three-fifths of the total number of members.’

Adoption or abrogation by plebiscite

Ten constitutions provide that issues related to amnesty, among other matters, may not be the subject of a referendum.[12] For instance, the Italian constitution prescribes that ‘[n]o referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty.’

Effects

As regards the effect of amnesty laws, two constitutions enshrine the principle that the legal effect of amnesties is irreversible, i.e. those of Angola and Peru.[13]

Constitutional ratification

Eight constitutions grant an amnesty in connection to a particular event or entrench a pre-existing amnesty law, namely those of Angola, Brazil, Burkina Faso, Colombia, Niger, Solomon Islands, Somalia and South Africa.[14] For example, the constitution of Niger provides that ‘[a]n amnesty is granted to the authors, co-authors and accomplices of the coup d’Etat of eighteen February 2010.’

Material scope of amnesty laws

Finally, twenty-one constitutions specify the crimes which may or may not be the subject of clemency measures. On the one hand, the constitutions of eight countries – Colombia, Costa Rica, the Dominican Republic, Greece, Guatemala, Haiti, Honduras and Panama – provide that amnesty may only be granted for political crimes or – as regards Guatemala and Honduras – related common crimes.[15] This seems consistent with the traditional acceptation of amnesty as primarily concerned with political offences.[16] However, the notion of political offences being rather loose, this constitutional specification is not of much help in the determination of the crimes which may benefit from the protection of amnesty.

On the other hand, the constitutions of thirteen countries precisely identify the crimes ineligible for clemency measures, i.e. those of Angola, Brazil, Chile, Ecuador, El Salvador, Ethiopia, Iraq, Niger, Spain, Tonga, Turkey, Costa Rica and Venezuela.[17] For example, while the Turkish constitution prohibits the grant of amnesty or pardon in relation to offences against the forest, the constitutions of Chile, Iraq and Brazil prescribe that terrorist offences are outside the permissible scope of clemency measures. As regards international crimes – which include genocide, crimes against humanity, war crimes and torture – seven constitutions exclude all or some of them from the reach of amnesty laws, namely those of Angola, Brazil, Ecuador, Ethiopia, Iraq, Niger and Venezuela.[18]

CATEGORIES OF AMNESTY REFERENCE CONSTITUTIONS REFERRING TO AMNESTY (total: 109)
Competence to grant amnesties 104
Special majority requirement 14
Amnesty may not be subjected to referendum 10
Effects of amnesty 2
Entrenched amnesty 8
Amnesty only for political crimes 9
Crimes ineligible for amnesty

=> international crimes ineligible

 13

7

Relevance of some of these results for the international law debate on amnesty [19]

As stated by the European Court of Human Rights, ‘[g]ranting amnesty in respect of “international crimes” (…) is increasingly considered to be prohibited by international law.’[20] For instance, the Appeals Chamber of the Special Court for Sierra Leone declared in the Lomé Amnesty Accord case that a norm prohibiting the grant of amnesty to perpetrators of serious violations of international law is crystallising under international law.[21] Along the same line, a policy paper issued by the UN High Commissioner for Human Rights challenged the compatibility of amnesties covering serious violations of human rights and humanitarian law with customary law.[22]

Yet, it appears that the constitutions of a large majority of states enshrine the right to grant amnesties and do not restrict this right in respect of international crimes. This finding casts doubt upon the existence of a consensus among the subjects of international law as to the necessity to prohibit amnesties for international crimes at the domestic or international level. What is clear is that the results of this research cannot be used in support of the view that a norm prohibiting amnesties for international crimes has emerged or is emerging under customary international law.

[1] See Marguš v Croatia App no 4455/10 (ECtHR, Grand Chamber, 27 May 2014), para 130-138.

[2] Prosecutor v Morris Kallon and Brima Bazzi Kamara, Case No SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004), para 82.

[3] www.constituteproject.org.

[4] See Anja Seibert-Fohr, ‘Amnesties’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012).

[5] Constitution of Hungary 2011 (rev. 2013), art. 1(2)(j) and 9(3)(g).

[6] Constitution of Japan 1946, art. 7.

[7] See the US Supreme Court’s pronouncement in Knote v United States, 95 US 152- 153 (1877), quoted in W W Thornton, ‘Pardon and Amnesty’ (1885) 6(4) Criminal Law Magazine 457, 458-459; Leslie Sebba, ‘The Pardoning Power: A World’s Survey’ 68(1) The Journal of Criminal Law and Criminology 83, 118.

[8] Constitution of the United States of America 1789 (rev. 1992), art. 2(2); L.C.K. ‘The Power of the President to Grant a General Pardon or Amnesty for Offences against the United States’ (1869) 17(10) The American Law Register 577, 582-584; Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson, The Restoration of the Confederates to their Rights and Privileges, 1861-1898 (University of North Carolina Press 1953).

[9] Available at http://incore.incore.ulst.ac.uk/Amnesty.

[10] Leslie Sebba, ‘The Pardoning Power: A World’s Survey’ 68(1) The Journal of Criminal Law and Criminology 83, 118.

[11] Constitutions of Albania 1998 (rev. 2008), art. 81(2)(h); Chile 1980 (rev. 2014), art. 63; Colombia 1991 (rev. 2013), art. 150(17); Costa Rica 1949 (rev. 2011), art. 121(21); Ecuador 2008 (rev. 2011), art. 120(13); Egypt 2014, art. 155; Greece 1975 (rev. 2008), art. 47(3); Italy 1947 (rev. 2012), art. 79; Moldova 1994 (rev. 2006), art. 72(3)(o); the Philippines 1987, art. 19; Romania 1991 (rev. 2003), art. 73(3)(i); Serbia 2006, art. 105; Turkey 1982 (rev. 2011), art. 87; Uruguay 1966 (reinst. 1985, rev. 2004), art. 85.

[12] Albania1998 (rev. 2008), art. 151(2); Azerbaijan1995 (rev. 2009), art. 1(III); Georgia1995 (rev. 2004), art. 74(2); Italy 1947 (rev. 2012), art. 75; Nicaragua 1987 (rev. 2005), art. 140(4); Romania 1991 (rev. 2003), art. 74(2); Serbia 2006, art. 108; Spain 1978 (rev. 2011), s 87(3); Ukraine 1996 (rev. 2014), art. 74; Venezuela1999 (rev. 2009), art. 74.

[13] Constitutions of Angola 2002, art. 62; Peru 1993 (rev. 2009), art. 139(13).

[14] Constitutions of Angola 2002, art. 244; Brazil 1988 (rev. 2014), art. 8; Burkina Faso 1991 (2012), art. 168(1); Colombia 1991 (rev. 2013), Transitional Article 30; Niger 2010, art. 185; Solomon Islands 1978 (rev. 2009), art. 91(4)(c); Somalia 1978 (rev. 2009), art. 111I(3); South Africa 1996 (rev. 2012), Sch. 6, art. 22.

[15] Constitutions of Colombia 1991 (rev. 2013), art. 150(17) and 201(2); Costa Rica 1949 (rev. 2011), art. 121(21); Dominican Republic 2010, art. 93(1)(p); Greece 1975 (rev. 2008), art. 47(3); Guatemala 1985 (rev. 1993), art. 171(g); Haiti 1987 (rev. 2012), art. 147; Honduras 1982 (rev. 2013), art. 205(16); and Panama 1972 (rev. 2004), art. 159(6).

[16] Bryan A Gardiner (ed), Black’s Law Dictionary (ninth ed, 2009); Oxford English Dictionary (seventh ed, OUP 2012); Sebba 118; Thornton 458.

[17] Constitutions of Angola 2002, art. 61; Brazil 1988 (rev. 2014), art. 5(XLIII); Chile 1980 (rev. 2014), art. 9; Costa Rica 1949 (rev. 2011), art. 121(21); Ecuador 2008 (rev. 2011), art. 80; El Salvador 1983 (rev. 2003), art. 244; Ethiopia 1994 , art. 28; Iraq 2005, art. 73; Niger 2010, art. 72; Spain 1978 (rev. 2011), art. 102; Tonga 1875 (rev. 1988), art. 37; Turkey 1982 (rev. 2011), art. 169; and Venezuela (Bolivarian Republic of) 1999 (rev. 2009), art. 29.

[18] Constitutions of Angola 2002, art. 61; Brazil 1988 (rev. 2014), art. 5(XLIII); Ecuador 2008 (rev. 2011), art. 80; Ethiopia 1994 , art. 28; Iraq 2005, art. 73; Niger 2010, art. 72; and Venezuela (Bolivarian Republic of) 1999 (rev. 2009), art. 29.

[19] For the international law debate on amnesty, see Louise Mallinder, Amnesty, Human Rights and Political Transitions, Bridging the Peace and Justice Divide (Hart Publishing 2008); Mark Freeman, Necessary Evils, Amnesties and the Search for Justice (CUP 2009); Francesca Lessa and Leigh A Payne, Amnesty in the Age of Human Rights Accountability, Comparative and International Perspectives (CUP 2012).

[20] Marguš v Croatia (2013) 56 EHRR 32, para 74.

[21] Special Court for Sierra Leone, Prosecutor v. Morris Kallon, case No. SCSL-2004-15-AR72(E), and Prosecutor v. Brima Bazzy Kamara, case No. SCSL-2004-16-AR72(E), Appeals Chamber, Decision on challenge to jurisdiction: Lomé Accord Amnesty (13 March 2004), para 82.

[22] Office of the United Nations High Commissioner for Human Rights, ‘Rule-of-Law Tools for Post-Conflict States, Amnesties’ (UN Publication 2009) 11.