Bypassing the Prohibition of Amnesty for Human Rights Crimes under International Law: Lessons Learned from the Burundi Peace Process

Abstract

Focusing on the case of Burundi, this article analyses the effectiveness of the international prohibition of amnesty for serious human rights crimes at the national level, in the context of complex war-to-peace transitions based on power-sharing deals between former opponents. On the one hand, the amnesty prohibition has clearly affected Burundi's peace process and its proposed transitional justice process. The prohibition found its way into national legislation and no amnesty was granted for genocide, crimes against humanity and war crimes. Throughout its involvement with the Burundian peace process, the United Nations has systematically opposed the use of amnesty legislation that does not respect the constraints imposed by international law. On the other hand, imperatives of political expediency and the desire to safeguard short term political stability have given rise to the establishment and creative use of a sophisticated bypassing mechanism. Through the combination of limitations imposed on the jurisdiction of the national criminal justice system, the use of temporary immunities and the delayed establishment of proposed transitional justice mechanisms, the amnesty prohibition has – so far – been most effectively circumvented. The case of Burundi offers interesting insights into the limits of the global ‘justice cascade’.