Policy Brief: Pardons

By Carolyn Patty Blum, International Center for Transitional Justice
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Excerpts:
International law: International law obligates states to prosecute and punish certain criminal conduct. In doing so, it reduces or eliminates the state’s legal options, including passing amnesty laws to immunize perpetrators for those violations.

Given U.S. treaty and customary law obligations, a preemptive, broad pardon for those charged with war crimes or gross human rights violations, including torture, likely would violate the United States’ international legal obligation to prosecute certain crimes. Moreover, a pardon in such cases would fall within international proscriptions against amnesties. U.S. duties under the Convention against Torture are central to this obligation.

Not only does the convention require the United States to criminalize acts of torture, as defined by the treaty, but also it requires the government either to prosecute offenders or extradite them to the country that will prosecute them.

The Inter-American Commission and Court consider amnesties for serious violations of human rights to violate multiple provisions of the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights; the United Nations Human Rights Committee holds a similar view of the provisions in the International Covenant on Civil and Political Rights.

If the president explicitly granted amnesty-like pardons for serious international humanitarian and human rights violations, he likely would be flouting international law.

Those given amnesty for such crimes in any case would not be immune from prosecution outside the United States...

Conclusion: The pardon that some speculate President Bush plans to grant – for top-level civilians to legal advisors to members of the military or the CIA for wrong- doing in connection with the “war on terror” – would be unprecedented and therefore would manifest a disturbing new abuse of the pardon power. Such a pardon would differ fundamentally from any previous examples in U.S. history. The size of the group to be pardoned potentially is large. With pardons of this nature, not even guilt could be implied or attributed because individuals might not be named. Without any conditions on the pardon, there might not be a process in which the beneficiary actually has to accept the pardon.

The scope of the pardon – possibly inclusive of abusive detention and interrogation practices, all forms of rendition, illegal surveillance, mistreatment of immigrants, and/or illegal actions in the wars in Iraq and Afghanistan – could be far- reaching, even if offenses are not specified. Such a broad pardon would act as a direct manifestation of impunity and a disincentive to future accountability. For the first time in U.S. history, some of the potentially pardonable acts would include violations of international law. No previous president has enacted a broad, prospective pardon for members of his own administration or for military forces. This form of pardon must be regarded with great suspicion as it could deny a new government the right to choose its own path toward accountability and could adversely impact new foreign policy initiatives. In looking back over two centuries of presidential pardons, one finds examples that range from noble attempts to heal a divided and anguished nation to selfish and venal favors for one’s friends. If President Bush grants a preemptive, sweeping pardon, he would be in the company of only a few other presidents who have abused this executive power for unmistakably political ends.

See also:
Policy Brief: U.S. inquiry into human rights abuses in
the “war on terror” by Lisa Magarrell, International Center for Transitional Justice