A Response to Ronald Slye

As an eminent scholar on the topic of amnesties, I appreciate Ron Slye’s thoughtful response to my analysis of the Barrios Altos case.  His critiques are certainly ones that I anticipated when offering my broad reading of the Inter-American Court of Human Rights’s landmark ruling.  As a regional body, the Court can only issue judgments that bind member States.  Thus, we will need to wait and see how the Barrios Altos jurisprudence influences decisions in other regional and international systems, and whether these bodies also begin to challenge the legality of amnesties.  Ultimately, even in the event that an international consensus develops rejecting amnesties (which preclude any type of criminal investigation or prosecution), it is unlikely that every human rights violator in the world will be criminally prosecuted.  Indeed, in transitioning countries similar to those mentioned by Slye (Rwanda, Cambodia, Nazi Germany), it will rarely be possible nor feasible to bring all alleged human rights violators to trial.  Instead, as Slye suggests, we may witness countries seeking to address mass atrocities relying on mechanisms like prosecutorial discretion, plea bargaining, sentence reduction and pardons to provide a more nuance –and local– approach to accountability.  Undoubtedly, these options might result in more leniency for “foot soldiers” and greater focus on civilian and military leaders who hold the greatest responsibility for setting policies of state violence and repression –a trend already underway in international, hybrid and national tribunals.  However, these criminal law mechanisms at least do not force societies to confront the all or nothing option of trials v. total forgetting for the sake of political expediency.  Instead, a flexible criminal justice process emerges that upholds the primacy of accountability, important for building the rule of law and meeting the justice demands of victims-survivors.  On this last point, I believe that Slye and I concur.