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A midwife for peace - Editorials & Commentary - International Herald Tribune

The Aug. 29 cease-fire between the Ugandan government and the murderous Lord's Resistance Army offers amnesty to rebels who turn themselves in. Ironically, the one thing that stands in the way of peace in Uganda may be the International Criminal Court, which has so far not dropped its indictment of Joseph Kony, the LRA leader, and four of his confederates for their rampage of atrocities.

Amnesties can be highly effective in promoting peace and democracy. The ICC would be wise to promote rather than impede the use of amnesties - but only under the right conditions.

The recent turn to amnesty in Uganda and Algeria is part of a quiet trend. In peace treaties negotiated since 1980, amnesty has been the most widely adopted instrument for dealing with violence. Despite increased pressure from activists for criminal accountability, more than two-thirds of wars since 1989 ended with formal amnesties, whereas only one-sixth used formal amnesties during the Cold War.

The reason is that amnesty is often an effective midwife for the birth of peace and democracy.

A survey of 200 constitutional reforms since 1975 by Jennifer Widner, a professor at Princeton University, found that amnesty was strongly associated with the durability of civil peace. In South Africa, amnesty was critical to securing a bargain that reconciled the apartheid regime to majority rule. In Mozambique, peace negotiations stalled until agreement on amnesty for both sides smoothed the way to a surprisingly successful democracy. Amnesties led to peace and democracy in El Salvador and Macedonia.

For amnesties to work, they need to create the right incentives and constraints that leave perpetrators feeling weak but secure and reconciled to peaceful political change. Amnesty must aim to disarm potential spoilers and remove them from power. Sometimes this can be accomplished through exile, sometimes by integrating them into a reformed economic sector or government bureaucracies.

Where ruthless warlords remain well armed, they may try to drive a hard bargain in amnesty negotiations, but this must not leave them controlling the means to kill and maim again. In Sierra Leone, the Lomé Accords granted amnesty to the rebel leader Foday Sankoh, but also made him head of the diamond mining commission, which he used as a resource base to resume his predations. In the better crafted Mozambican amnesty, former rebels had to play by democratic rules in order to gain benefits.

In many states emerging from war, amnesty based on religion and custom is accepted as a legitimate path to forgiveness and reconciliation. Indigenous rituals in countries like Mozambique and Uganda are designed to reintegrate individuals back into society in the aftermath of war. In a more formal version, Algerian voters last year accepted the terms of a national reconciliation plan, including amnesty, in a referendum.

Amnesty can work, but even well-designed amnesties run afoul of international criminal courts. The Macedonian amnesty for Albanian rebels nearly broke down amid armed clashes when the prosecutor of the The Hague war crime tribunal asserted her jurisdiction to investigate mass graves.

According to prevailing legal opinion, amnesty for war crimes, crimes against humanity, or genocide is impossible under international law. Amnesty for rebellion, however, is actually encouraged by the 1977 second protocol of the Geneva Conventions, which applies to civil wars: "At the end of hostilities, the authorities in power shall endeavor 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, whether they are interned or detained." But an ICC war-crime indictment is assumed to trump an amnesty for crimes under domestic law.

In a world of failed states and weak institutions - a world where politics in fact often trumps law - prosecutors should show deference to responsible political leaders who have the skills and the mandate to make choices based on prudence and political consequences.

In cases like Uganda, where domestic leaders are convinced that amnesty is the key to peace, the Security Council should back the peace process and use its authority to defer cases brought to the ICC if they threaten international peace and security. Law is too important a business to be left to the lawyers, and amnesty is too vital an instrument to be banished from the toolbox of peacemakers.

A version of this article appears in print on   in The International Herald Tribune. Order Reprints | Today’s Paper | Subscribe

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