In a decision of 9 March 2020, the Appeals Chamber of the International Criminal Court (ICC) confirmed that the case against Saif Al-Islam Gaddafi is admissible. This decision is significant with regard to the debate on the status of amnesties under international law as it is the first time that the ICC makes a pronouncement as a full court on this controversial issue. The post starts by outlining the positions of international actors in the amnesty debate, before examining how and why the ICC Appeals Chamber backtracked from the Pre-Trial Chamber’s holding that the grant of amnesty for crimes against humanity is incompatible with international law. It then discusses whether amnesties, irrespective of their legality under international law, are opposable to international criminal courts.
The amnesty debate in international law
The question of whether amnesties are prohibited with respect to serious crimes under international law such as crimes against humanity has generated much debate in the last three decades. The prevalent view is that a general rule prohibiting amnesties in respect of international crimes and serious human rights violations has emerged under international law.
The first international court to declare a ban on amnesties was the Inter-American Court of Human Rights. In its landmark judgment in Barrios Altos v. Peru (2001), it famously stated that:
[A]ll amnesty provisions … are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.
Another prominent proponent of an international ban on amnesties is the UN. In his 2004 report on the rule of law and transitional justice in conflict and post-conflict societies, the UN Secretary-General rejected ‘any endorsement of amnesty for genocide, war crimes, or crimes against humanity’.
In the late 2000s, however, certain scholars started to question the absolute nature of the amnesty prohibition, suggesting that distinctions should be made between different types of amnesties depending on factors such as their scope, design and context of adoption. This nuanced position, expounded in the 2013 Belfast Guidelines on Amnesty and Accountability, argues that amnesties may be necessary in certain circumstances and can be designed so as to be consistent with international law and human rights.
In the last decade, some international courts and bodies have qualified their position on amnesties. Thus, in Marguš v Croatia (2014), the Grand Chamber of the European Court of Human Rights observed that, while there is ‘a growing tendency in international law’ to consider that amnesties covering serious human rights violations are unacceptable, they may be ‘possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims’.
The International Law Commission’s Special Rapporteur on crimes against humanity noted the absence of consensus on the question in its report of 2017:
[M]any publicists have found it difficult to conclude that there is a consensus on whether a complete prohibition on amnesties, even for serious crimes, has attained the status of customary international law. Rather, such publicists call for taking account of situation-specific various factors, such as whether the particular amnesty provisions amount to a blanket amnesty or provide relevant conditions, or exclude those most responsible for the crimes committed.
Therefore, he advised against the inclusion of a provision prohibiting amnesties in a prospective convention on crimes against humanity, suggesting that national amnesty laws should be evaluated on a case-by-case basis in light of the specific obligations binding the issuing state under treaty and customary law.
The ICC, amnesties and the Gaddafi admissibility challenge
The ICC recently added its contribution to the amnesty debate in the context of an admissibility challenge in the Libyan situation. On 27 June 2011, the Court issued an arrest warrant against, inter alia, Saif Al-Islam Gaddafi, son and successor of Muammar Gaddafi, on charges of murder and persecution as crimes against humanity. The accused allegedly committed these crimes in the context of the violent suppression of civilian demonstrations in opposition to the Gaddafi’s regime in February 2011.
In June 2018, Saif Al-Islam Gaddafi introduced an admissibility challenge arguing, first, that he had already been tried and convicted by a Libyan court for the same conduct, so that the ne bis in idem principle protected in article 20(3) of the Rome Statute prevented a new trial and, second, that he had been released from prison in application of a Libyan amnesty law.
The Pre-Trial Chamber’s decision
The ICC’s Pre-Trial Chamber I rejected Gaddafi’s admissibility challenge in a decision of 5 April 2019. As regards the defence’s first argument, the Court observed that the judgment issued by a Tripoli criminal court on 28 July 2015 sentencing Gaddafi to death had been rendered in abstentia. Pursuant to Libyan law, a retrial would thus take place once the defendant came forward or was apprehended by the authorities. In addition, since the judgment was still subject to appeal before the Libyan Court of Cassation, the Court considered that it did not constitute a final judgment on the merits having acquired res judicata effect, as required for the ne bis in idem principle to come into play.
In response to the second argument that the defendant had been granted amnesty, the Pre-Trial Chamber considered that Libya’s Law 6/2015 on General Amnesty (Law 6/2015) had not been validly applied to Gaddafi because it expressly excluded the crimes with which he was charged. The Court could have stopped there, the arguments advanced by the defence having been squarely addressed and rejected. However, it chose to embark in a hypothetical analysis of whether, assuming that the amnesty law had been validly applied to Gaddafi, this would have been consistent with international law.
The Pre-Trial Chamber declared that ‘there is a strong, growing, universal tendency that grave and systematic human rights violations – which may amount to crimes against humanity by their very nature – are not subject to amnesties or pardons under international law’. It then cited a number of international judicial decisions supporting this view. The Court concluded that granting amnesty for the crimes alleged against the defendant ‘is incompatible with internationally recognized human rights’, so that Law No. 6 would not, in so far as applied to Mr Gaddafi, be consistent with international law.
The Appeals Chamber’s decision
The Appeals Chamber’s judgment of 9 March 2020 essentially confirmed the Pre-Trial Chamber’s decision. In the first place, it upheld the finding that the in abstentia judgment of the Tripoli court could not be considered final and did not, therefore, prevent a second trial before the Court.
In the second place, the Appeals Chamber confirmed that the Libyan amnesty law did not apply to the defendant since the crimes alleged against him were expressly excluded by that law. In addition, the Court noted that the conditions for the application of Law 6/2015, which requires applicants to show repentance, commit not to re-offend and take steps to reconcile with the victims, were not satisfied. Neither had the defendant shown that a reasoned decision terminating the criminal proceedings against him had been issued by the competent judicial authority, as also required under the terms of the law.
As regards the question of the compatibility of Law 6/2015 with international law, however, the Appeals Chamber retracted from the findings of the Pre-Trial Chamber by determining that they were obiter dicta. The Pre-Trial Chamber’s statement about ‘a strong, growing, universal tendency’ opposing the grant of amnesty for crimes against humanity was interpreted as a mere acknowledgment that the question of the permissibility of amnesties was not settled. For the purpose of the admissibility challenge, the Appeals Chamber decided that it was sufficient to say that ‘international law is still in in the developmental stage on the question of acceptability of amnesties’.
This backtracking by the Appeals Chamber may have been informed by the current trend in acknowledging nuances in the position of international law on amnesties. It would in any case appear imprudent for a court to comment on this thorny question without engaging in a thorough and careful review of the primary sources of international law, including state practice, which was not called for in this case. As has been observed as regards the ICC in particular, adopting too rigid a position on amnesties might also have detrimental consequences in other cases before the Court where the issue is likely to arise.
Discussion on the opposability of amnesties to international criminal courts
In this case, the ICC could readily decline to enter into the international legal debate on amnesties since the defendant did not fulfil the conditions to be granted amnesty under domestic law. Had the amnesty been validly granted, however, it is submitted that the Court could still have avoided embarking in a determination of whether amnesties covering international crimes are permissible under international law.
As the author has argued, the question of the legality of amnesties under international law should be distinguished from the question of their opposability to international criminal courts. Consideration of the first question might overstep the mandate of international criminal courts since their statute does not empower them to adjudicate on the legality of domestic laws. Hence, it might be more appropriate for such courts to focus on the second question – whether amnesties may be opposed to them.
The object and purpose of international criminal courts is to ensure the prosecution of persons responsible for serious international crimes. As the primary effect of amnesties is to preclude criminal prosecution, they pose an obstacle to those courts’ mandate when extending to persons under their jurisdiction. Accordingly, the statutes of most recently established international or hybrid criminal courts expressly provide that amnesties shall not be a bar to prosecution.
With respect to international criminal courts whose statue does not address the issue of amnesty, such as the ICC, the answer may be found in the relevant case law. Indeed, international criminal courts having dealt with amnesty laws have consistently refused to recognise the effect of such laws in depriving them of jurisdiction over alleged perpetrators of international crimes. They have done so on the basis of treaty obligations to prosecute international crimes, where relevant, or, where not, the jus cogens status of the norms prohibiting those crimes and the right of all states to prosecute the persons responsible.
This jurisprudential construction seems to entail that, even if amnesty laws covering certain international crimes are not strictly prohibited by international law, they may not be opposed to international or hybrid criminal courts. A contrario, decisions of international criminal courts refusing to give effect to a particular amnesty law would not mean that the law in question is illegal, or that all amnesties are prohibited by international law, but only that they will not be recognised by international criminal courts. Such an approach would enable international criminal courts to dismiss amnesty laws conflicting with their jurisdiction over alleged perpetrators of international crimes without needing to demonstrate that the measures are contrary to international law, or risking to overstep their statutory mandate.
 This view is based, primarily, on treaty obligations to prosecute perpetrators of international crimes and grant a remedy to victims of human rights violations, see Josepha Close, Amnesties, Serious Crimes and International Law: Global Perspectives in Theory and Practice (Routledge 2019) chapters 4-6.
 Barrios Altos v Peru (Merits) Inter-American Court of Human Rights Series C No 75 (14 March 2001) para 41. The amnesty prohibition was reaffirmed and expanded in subsequent decisions of the Court, see e.g. Almonacid-Arellano v Chile (Merits) Inter-American Court of Human Rights Series C No 154 (26 September 2006);Gomes Lund et al v Brazil (Preliminary Objections, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 219 (24 November 2010); Gelman v Uruguay (Merits and Reparations) Inter- American Court of Human Rights Series C No 221 (24 February 2011); The Massacres of El Mozote and nearby places v El Salvador (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 252 (25 October 2012).
 UN Security Council (UNSC), ‘The rule of law and transitional justice in conflict and post-conflict societies’, report of the Secretary General (23 August 2004) UN Doc S/2004/616, para 64(c). This statement was broadened to include serious human rights violations in the 2011 follow-up report, see UNSC, ‘The rule of law and transitional justice in conflict and post-conflict societies’, report of the Secretary General (12 October 2011) UN Doc S/2011/634, paras 12 and 67. The UN High Commissioner for Human Rights has more broadly instructed that ‘United Nations officials … must never encourage or condone amnesties that prevent prosecution of those responsible for serious crimes under international law… or gross violations of human rights … or that impair victims’ right to a remedy, including reparation, or victims’ or societies’ right to the truth’, see OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: Amnesties’ (UN Publication 2009) 27.
 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). See also William Schabas, ‘No Peace Without Justice? The Amnesty Quandary’ in William Schabas, Unimaginable Atrocities: Justice: Politics and Rights at the War Crimes Tribunals (OUP 2012) 173.
 Marguš v Croatia [GC] ECHR 2014-III, para 139. See also the African Commission on Human and Peoples’ Rights’ obiter dicta comments on amnesties in Thomas Kwoyelo v Uganda, ACHPR Communication 431/12 (17 October 2018), paras 283-293.
 UN General Assembly International Law Commission, Third report on crimes against humanity by Sean D. Murphy, Special Rapporteur (23 January 2017) UN Doc A/CN.4/704, para 296.
 Ibid, para 297.
 Prosecutor v. Saif Al-Islam Gaddafi (admissibility appeal decision) ICC-01/11-01/11 (9 March 2020).
 Warrant of arrest for Saif Al-Islam Gaddafi, ICC-01/11 (27 June 2011).
 Prosecutor v. Saif Al-Islam Gaddafi (admissibility challenge) ICC-01/11-01/11 (5 June 2018).
 Prosecutor v. Saif Al-Islam Gaddafi (admissibility decision) ICC-01/11-01/11 (5 April 2019).
 Prosecutor v. Gaddafi (admissibility decision) (n 11) paras 36-53.
 Ibid, paras 56-59. Pursuant to its article 3, Law 6/2015 does not apply to identity-based murder, abduction, enforced disappearance and torture.
 Prosecutor v. Gaddafi (admissibility decision) (n 11) para 61.
 Ibid, paras 62-76.
 Ibid, paras 77-78.
 Prosecutor v. Saif Al-Islam Gaddafi (admissibility appeal decision) (n 8).
 Ibid, paras 47-63.
 Ibid, paras 85-95.
 Ibid, see article 2 of Law 6/2015.
 Ibid, see article 6 of Law 6/2015.
 Ibid, para 96.
 Close, Amnesties, Serious Crimes and International Law (n 1) chapter 7. See also Dov Jacobs, ‘Puzzling over Amnesties: Defragmenting the Debate for International Criminal Tribunals’ in Larissa van den Herik and Carsten Stahn (eds), The Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff Publishers 2012) 305; John Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’ in Antonio Cassese, Paula Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court, A Commentary (OUP 2002) vol 1, 699-700.
 See Jacobs, ‘Puzzling over Amnesties’ (n 26) 332-36.
 The statutes of the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the Extraordinary African Chambers in the Senegalese Courts and the Kosovo Specialist Chambers all bar the applicability of amnesties for crimes under the courts’ jurisdiction, see Close, Amnesties, Serious Crimes and International Law (n 1) 226-30.
 Prosecutor v Anto Furundzija (Judgment) ICTY-IT-95-17/1-T (10 December 1998) para 155; Prosecutor v Morris Kallon and Brima Bazzy Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-04-15-PT-060 (13 March 2004) paras 67-71, 82, 84 and 88; Prosecutor v Nuon Chea, Ieng Sary, Ieng Thirith and Khieu Samphan (Decision on Ieng Sary’s Rule 89 Preliminary Objections) 002/19-09-2007/ECCC/TC (3 November 2011) paras 38-39 and 53-55. See Close, Amnesties, Serious Crimes and International Law (n 1) 230-44.
 Ibid. While the crimes of genocide, grave breaches of the Geneva Conventions of 1949, torture and enforced disappearance are subject to a treaty obligation to prosecute, this is not the case as regards other international crimes such as crimes against humanity and war crimes committed in non-international armed conflicts. For a discussion of the nuances in this case-law, see Close, Amnesties, Serious Crimes and International Law (n 1) 230-44.
 For a more detailed discussion of this principle, see Close, Amnesties, Serious Crimes and International Law (n 1) 230-244.