Amnesty for Boko Haram and the Rules of International Law -By Nonso Robert Attoh

Nonso Robert Attoh

“…It is where, and in this case because, the conduct of the participants in the armed conflict is alleged to amount to international crimes that the question arises whether in such a situation a state has the same choice to dispense with the prosecution of the alleged offenders…” Prosecutor v. Kallon and Kamara (Special Court for Sierra Leone).

With the inauguration of President Muhammadu Buhari, there have been renewed calls for the granting of amnesty to Boko Haram as the only viable option to ending the insurgency in Northern Nigeria. This call has sounded out loudly from respected Northern elders and the governor of Borno State, amongst others.

One can equally recall that the past administration of Goodluck Jonathan had at one time set up a committee to look into the matter of amnesty for the insurgents and had also engaged in talks with the insurgents who rejected the offer of amnesty on the grounds that they had done no wrong to warrant an amnesty.

The suggestion of an amnesty for Boko Haram is not a misplaced one in the light of the practice of states that are facing difficult transitional periods such as from war to peace, or during extreme political upheavals. States that have made use of amnesties to solve their national problems include Argentina, Chile, Uruguay, Afghanistan, Algeria, Brazil, Democratic Republic of Congo, Sierra Leone, South Africa, etc.

The granting of amnesty by a state is an exercise of state sovereignty and is a valid way of ending prosecutions by a state for crimes committed against the state. As was held by the Special Court for Sierra Leone (SCSL), “Whether to prosecute the perpetrators of rebellion for their acts of rebellion and challenge to the constituted authority of the state as a matter of internal law is for the state authority to decide”.

Without one labouring with the intricacies of the jurisprudence of war crimes and crimes against humanity, the evidence compiled by the Amnesty International points unequivocally to the commission of war crimes and crimes against humanity by the Boko Haram insurgency, especially as it relates to serious violations of Common Article 3 of the four Geneva Conventions, in committing violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture against people taking no active part in the hostilities and other such serious violations classified as war crimes under article 8(2)(c) of the Rome Statute of the ICC.

However, the exercise of state sovereignty in granting amnesty is subject to international law rules and must be carried out without breaching the state’s obligations in international law. Even though there is no specific international convention that explicitly prohibits amnesty laws, there is a substantial body of international law that sets limits to their permissible scope. International law does not consider every amnesty invalid because amnesties are useful tools for ending or preventing civil wars, facilitating the transition to democratic regimes or aiding the process of reconciliation. The United Nations has indeed endorsed amnesty for peace deals on several occasions and has even brokered such deals to restore peace. This was the case in Haiti in 1993, Guatemala, Democratic Republic of Congo (1999) and Sierra Leone (1999).

However, International law and practice prohibits amnesty for international crimes, and with the emergence of an international criminal prosecution system, there has developed a general presumption in international law of the illegality of amnesties for international crimes.

In assessing the legality of amnesties, international law usually has to perform a delicate balancing act between the needs of the territorial state to make progress away from the ugly past and to facilitate the political process towards peace and the need of the international community to prosecute those accused of international crimes so as to avoid a culture of impunity. Thus in international law, amnesties are impermissible if they prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights.

Certain international treaties impose explicit obligations on state parties to ensure punishment of specific offences either by instituting criminal proceedings against suspected perpetrators in their own courts or by extraditing the suspects to another appropriate jurisdiction for prosecution. Examples include the Genocide Convention and the Geneva Conventions in respect of grave breaches of the Conventions committed in the context of international armed conflict. As such the obligations imposed by these treaties cannot be derogated from by the grant of an amnesty.

…a grant of a blanket amnesty to the Boko haram covering war crimes and crimes against humanity would amount to a breach of our international obligations and would constitute an unwillingness to prosecute the offenders which will trigger the ICC’s jurisdiction over the matter on the principle of complementarity.

The United Nations has consistently in its practice from the 1990s asserted that amnesty for international crimes were prohibited and constitute no bar to prosecution of the amnestied individuals in international tribunals. In the negotiations with the United Nation leading up to the establishment of the Hybrid Court in Cambodia, the UN insisted on the exclusion of international crimes from the amnesty granted by the government and established that the amnesty was no bar to prosecution for international crimes. Similarly, the UN entered a disclaimer to the Lome Accord that the amnesty did not apply to international crimes and the Special Court for Sierra Leone (SCSL) expressly contained a clause that the amnesty was not a bar to prosecution before the court.

Although certain states have still gone ahead to grant blanket amnesties, international and national courts have used every occasion presented before them to declare such amnesties as invalid as was the case in Argentina, Colombia and Chile. Thus the grant of an amnesty which covers international crimes, even though it may be valid within the country’s laws, will have no international legal effect and will not serve as a bar to prosecution in an international tribunal like the International Criminal Court (ICC) or a hybrid international court like the Special Court for Sierra Leone (SCSL). Equally where the international crime is subject to universal jurisdiction, the amnesty is no bar to prosecution in other states. Also, as was pointed out by the International Criminal Court for Yugoslavia (ICTY), it is no bar to prosecution under a subsequent regime within the same country.

To apply the above discussion to the Nigerian situation, it is important to realise that the conflict in the North-East against Boko Haram has since 2013 been qualified as a non-international armed conflict governed by international humanitarian law rules namely, Common Article 3 of the four Geneva Conventions, Additional Protocol II to the Geneva Conventions and Customary international humanitarian law. This qualification was because the conflict had met the threshold requirement of non-international armed conflict as set down in the jurisprudence of the ICTY, namely that the intensity of the conflict and the organisation of the armed groups involved in the fighting was up to the required threshold. This determination had been made by the International Criminal Court and collaborated by evidence gathered by the Amnesty International as to the confrontations between the Boko Haram and the Military.

Having determined that a non-international conflict was taking place in Nigeria, the activities surrounding the conflict would then be examined to determine whether war crimes have been committed in the cause of the conflict. Also the activities of the parties of the conflict would be assessed to determine whether crimes against humanity have been committed within this period of armed conflict.

…the solution to the Boko Haram Insurgency, may include the grant of limited and principled amnesty to the generality of the members of the Boko Haram who confess and renounce their acts without neglecting the obligation to bring to account those who are responsible for the most serious violations of International Humanitarian Law.

Without one labouring with the intricacies of the jurisprudence of war crimes and crimes against humanity, the evidence compiled by the Amnesty International points unequivocally to the commission of war crimes and crimes against humanity by the Boko Haram insurgency, especially as it relates to serious violations of Common Article 3 of the four Geneva Conventions, in committing violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture against people taking no active part in the hostilities and other such serious violations classified as war crimes under article 8(2)(c) of the Rome Statute of the ICC.

In the light of the above, it is apparent that a grant of a blanket amnesty to the Boko haram covering war crimes and crimes against humanity would amount to a breach of our international obligations and would constitute an unwillingness to prosecute the offenders which will trigger the ICC’s jurisdiction over the matter on the principle of complementarity. In the words of the SCSL “It is not only incompatible, but is a breach of an obligation of a state towards the international community as a whole.” However, we must point out that even though blanket amnesty would be unlawful in international law, the law nevertheless recognises the validity of conditional amnesties and this is even reinforced by article 6(5) of Additional Protocol II which reads that, “at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict”.

Such broad amnesty may take the form of the South African National Unity and Reconciliation Act 34 0f 1995 which was justified on the basis that but for the recognition of a limited amnesty it will be impossible, or much more difficult, to secure peace. Some commentators, and based on state practice, have suggested that such limited amnesties should be accompanied by other accountability measures as truth commissions and investigatory bodies and should apply only to lower ranking members of armed forces or groups.

In the final analysis, the solution to the Boko Haram Insurgency, may include the grant of limited and principled amnesty to the generality of the members of the Boko Haram who confess and renounce their acts without neglecting the obligation to bring to account those who are responsible for the most serious violations of International Humanitarian Law. The government must properly examine its options to ensure that it does not breach its obligations under international law.

Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Enugu Campus.