By Priya Pillai*
In 2016, I was attending a book launch in Manila pertaining to the Communist peace process in the Philippines, when the topic of amnesty came up. I realized that while there was scant awareness of the intricacies of the topic, amnesty was critical to the resolution of the conflict but it was also a potential landmine. In the time I took to mull over, research and write this piece, there have been innumerable twists and turns in the peace process, not all of them positive. The most recent collapse of peace talks revolves around the release of political prisoners and the question of amnesty. For worse, the issue of amnesty is now front and center.
When the peace process eventually revives, the potential scope of any amnesty law will be a preliminary hurdle. I believe that relevant international law and practice is important to guide the discussion in a meaningful manner.
Philippine amnesty laws: Relevance and antecedents
Ongoing peace processes in the Philippines pertain to the long-running Communist insurgency, as well as to the Bangsamoro (the term used to refer to the proposed political entity in the southern Philippines for the Moros, a Muslim ethnic group). The recommencement of talks with the Communist Party of the Philippines – New Peoples Army – National Democratic Front (CPP – NPA – NDF) in 2016 resulted in the release of leaders from prison, and also the consideration of amnesty for political prisoners. However, as of early February 2017, this process has now fallen apart with an escalation of violence. This collapse is predominantly based on demands for the release of around 400 political prisoners, with the President stating that this would be “practically granting amnesty”.
The crux of the issue is the perception of impunity in granting amnesty, due to a long and checkered history of the use of amnesty laws in the Philippines. Colonial Spanish and American rule, through to the Marcos dictatorship and subsequent administrations, have all used amnesty laws. These laws have varied in the types of crimes amnestied, as well as the pre-conditions. Most required the voluntary surrender of arms and ammunition, sometimes accompanied with an oath of allegiance to the Philippines. Crimes such as torture, kidnapping for ransom, arson, massacre or torture of civilian non-combatants, rape and crimes against chastity, and use and trafficking of illegal drugs have been excluded from the scope of some amnesty laws. Amnesty has been issued for military and police actions in counter-insurgency operations, mutiny, coup attempts, for World War II collaborators, political exiles opposed to martial law, as well as in cases related to armed conflict with the Communists and in the Southern Philippines. This illustration of the frequency, extent and scope of amnesty laws indicates that in the Philippines, the language of ‘amnesty’ is not new. Indeed, arguably it has been overused to the extent that its value has diminished, and has now been viewed mainly as a means to escape accountability.
Parameters of amnesty: International law and practice
The international normative framework regarding amnesty has evolved considerably in the past two decades. Previously, there were many instances of the unfettered use of amnesty provisions that entrenched impunity. Now there are significant international legal constraints, commensurate to the evolution of the international legal obligation to prosecute, reflected partly in the Rome Statute that set up the International Criminal Court. A ‘blanket’ or all-encompassing amnesty is no longer acceptable, and is not permissible for genocide, war crimes and crimes against humanity, according to the United Nations
States party to the Rome Statute (including the Philippines) are under a legal obligation to criminalize and prosecute defined crimes under the statute. Furthermore, the laws of war, including obligations emanating from the Additional Protocol II to the Geneva Conventions (relating to non-international armed conflict) also bind the Philippines. These obligations are captured partly in Philippine domestic legislation.
While these considerations must be balanced against any potential amnesty, it does not mean that amnesty is impossible. The legality of its use depends on the content and context of the amnesty. A ‘conditional’ or limited amnesty may be considered, based on the fulfillment of certain conditions and for particular acts
The recipients of conditional amnesties could include ‘political prisoners’, who have committed crimes against the state for a political purpose. In many jurisdictions, offenses such as sedition, crimes against the state, overthrow of the state, rioting, rebellion, etc. could be simply classified as ‘political crimes’. However, the distinction between ‘ordinary’ and ‘political’ crimes is often not as easy to deduce, as exemplified in the case of Colombia. Crimes ‘connected to’ political crimes are even more nebulous, and may include terrorism and drug trafficking. Further, not all amnesty laws result in complete extinguishing of responsibility. There may be leniency in sentencing for crimes that are not exempt in their entirety, or the use of restorative justice approaches.
Amnesties have been implemented successfully (thus far) in Northern Ireland, have had a measure of success in South Africa, and have been dismissed in Nepal and El Salvador. These diverse results are due to variations in the form and substance of the amnesty provisions. In the formulation of any amnesty, the needs of the victims must be taken into account through consultations and referenda to ensure that they are heard. There must be a calibrated approach to any law for amnesty, with careful consideration of the categories of potential recipients (such as those who may have committed minor violations, or with less responsibility), as well as for the range and types of offences. The need of the hour is for more nuance, rather than less.
While it may seem counter intuitive to discuss amnesty now, I believe it is a critical time to address the issue. In the Philippines, the adverse reaction to amnesty has, at its root, a deep distrust of the mechanism. The assumption that amnesty automatically equates to impunity is due to its legacy in the Philippines, which is not reflective of the significant safeguards that have evolved in current international law and practice. The pathway to peace may hinge on a more comprehensive understanding and implementation of international developments pertaining to amnesty, to meet the ends of peace as well as justice.
*Priya Pillai is a lawyer and researcher, with expertise in international law and transitional justice. Priya has previously worked at the International Criminal Tribunal for the Former Yugoslavia, the International Federation of Red Cross and Red Crescent Societies, and with NGOs on national implementation of international law. She has a PhD in international law from the Graduate Institute, Geneva, an LL.M from New York University and a law degree from the National Law School, Bangalore, India. She is currently based in Manila, and can be reached at firstname.lastname@example.org.
Photo credit: Children in Barangay Tugar, a village in the Philippines caught in crossfire between the Moro Islamic Liberation Front and government forces in 2008. Photo by: UNHCR.