A Response to Lisa Laplante by Ronald Slye

[Ronald Slye is the Director of International and Comparative Law Programs and Professor at Seattle University School of Law]
Lisa Laplante provides those of us interested in international criminal law, and more specifically the legitimacy of utilizing amnesties during a period of societal transition, with a valuable service by pointing us to, and carefully parsing, the Barrios Altos decision of Inter-American Court of Human Rights.  It is a decision that, as she rightly states has not received as much attention as it deserves.  While I am sympathetic to her claim that this decision stands for the position that all amnesties are illegitimate and that there is thus an obligation to prosecute, I think the question is much more open and fluid.  There is, first, the minor and more technical point that no matter how well reasoned the decision, it is only one decision of one regional court that has no precedential force on any other international body.  Thus, even if one interprets it the way that Ms. Laplante does, its force is mostly persuasive, or at best evidence of an emerging rule of customary international law on the legality of amnesties.  The more important point for me is that I think we risk oversimplifying the issue by reducing it to criminal trials versus amnesty.  Ms. Laplante does not do this – and in fact is clearly aware of the many different types of mechanisms that fall under the rubric of amnesty.  The question is really one of accountability, and more particularly what is the minimum required to address adequately gross violations of human rights.  It seems to me that some forms of amnesty, selectively used, may be justified in some situations.  Surely international law cannot, and should not, require criminal prosecutions in all cases.  The enormity of the task such a rule would create in the context of the Rwanda genocide (though one could point to the Nazi Holocaust or the Cambodian atrocities to make the same point) must give us pause.  On the other extreme, of course, it is clear that blanket amnesties are illegal – and the jurisprudence of the Inter-American human rights system has been at the forefront of converting this assertion into a principle of international law.  There is, however, a lot of grey area in between.  It is the area in which one also finds other less controversial legal mechanisms such as pardons, prosecutorial discretion, sentencing, and statutes of limitations.  I do not think that international law clearly speaks to whether some of the amnesties that fall within this middle area are legal or not.  Of course, one might even ask whether international law should answer this question, or whether instead it is better to leave some discretion to communities to develop their own forms of accountability for mass atrocities.  My view is that international law must require some form of accountability for mass atrocities, but what form that accountability may take must allow for more than traditional criminal prosecutions.