Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes

[Lisa J. Laplante is Visiting Assistant Professor at Marquette University Law School]

Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights.  The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities.  Latin America exemplified this trend in the 1980s, while also popularizing truth commissions.  The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties.   Recognition of individual rights chipped away at absolute state sovereignty by building recognition of the state duty to investigate, prosecute, and punish those responsible for serious violations of human rights.  In addition, the end of the Cold War saw a new reliance on international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945.  Jurisprudence emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states.

Currently, scholars now acknowledge that to be legitimate, amnesties must conform to legal norms thus creating a standard of ‘qualified amnesties’ for customary and treaty law prohibiting bars to prosecution for war crimes, enumerated treaty crimes, and crimes against humanity.  Yet, this discourse suggests that it is still possible for nations to resort to amnesties for other serious human rights violations during political transitions.  Yet, by merging the fields of human rights law and international criminal law, one can arguably resolve this current debate by finding amnesty in transitional justice settings to be unlawful.  Specifically, the Barrios Altos case, a seminal decision issued by the Inter-American Court of Human Rights (IACHR) in 2001, declared that amnesty laws promulgated in 1995 by former Peruvian president Alberto Fujimori were contrary to the American Convention on Human Rights, and thus international law.  Recent scholarship has ignored this decision, or otherwise interpreted it overly narrowly, despite its potentially sweeping impact on the field of transitional justice.   Yet, I argue for a broader reading based on a close reading of both the Judgment on the Merits (and its concurring opinions, the IACtHR’s own Interpretation of the Judgment, subsequent opinions issued by the IACtHR, as well as and state practice relying on Barrios Altos.  These sources suggest that the Barrios Altos ruling stands for the principle that all amnesties are contrary to international law and not just self-amnesties.   Thus, a state cannot satisfy the duty to investigate through other types of noncriminal investigations such as truth commissions and moreover, they cannot provide immunity for serious human rights violations which do not rise to the level of crimes against humanity, treaty crimes and war crimes.  Arguably, with this more expansive reading, it is possible that the truth v. justice dilemma may no longer exist: instead, criminal justice through trials must be done.