The Legality of Pardons in Latin America (Part II)

by Alonso Gurmendi Dunkelberg

[Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.]

As seen in Part I, Colombian transitional justice mechanisms have played a key role in the evolution of the Inter-American Court’s jurisprudence on proportionality of punishment. In this second part, I will analyze whether the Court’s Colombian case-law can influence Peru’s discussion regarding a hypothetical humanitarian pardon for former autocratic President Alberto Fujimori. In particular, my objective is to analyze whether, in the same vein as peace negotiations, poor health can constitute a viable reason to mitigate the proportionality of punishment principle.

In this discussion, health in old age provides an interesting test for the La Rochela standard, and could potentially be a determining factor with significant impact in the Court’s future. After all, can early release still be considered an irrisory punishment leading to impunity when the individual in question suffers from serious illness or infirmity? And if so, how sick must he or she be before a pardon can be granted? This is not an easy question to answer. Humanitarianism is just as much a part of international criminal law as retribution, and it will likely constitute another crossroads for the Court in the near future.

In 2012, the United Nations High Commissioner for Human Rights (E/2012/51) explored “whether the continued incarceration of older persons is a disproportionately severe punishment”, stating that “[c]onsidering the purposes of punishment –retribution, incapacitation, deterrence, and rehabilitation- there may be little justification for many older persons’ continued incarceration in the prison system in certain instances” and that “alternative forms of punishment may be preferable based on the financial, practical, and human rights considerations involved” (¶61). That same year, Human Rights Watch arrived at similar conclusions, claiming that “while a prison term may have been proportionate at the time imposed, increasing age and infirmity may change the calculus against continued incarceration and in favor of some form of conditional release”, even in cases of acceptable conditions of confinement. These arguments indicate that health may very well be another “clearly identifiable objective compatible with the American Convention” that may warrant a softening of proportionality. The Court, however, has never said so.

In any case, it will be very difficult for the Court to maintain its silence for much longer. Fujimori is not the only aging human rights violator in the region and discussions of this sort will only increase with media attention. The Court will need a standard that allows it to keep its reputation as both an enemy of impunity and a custodian of human rights, while at the same time keeping a consistent and fair-minded jurisprudence. The Court is, after all, not the only one analyzing the Colombian Peace Agreement. Some very respectable sources have criticized it, expressing, as Human Rights Watch does, “very serious concerns that the justice provisions of the accord could result in confessed war criminals not receiving meaningful punishment for the grave crimes for which they were responsible”.

If, as available evidence seems to suggest, the Court wishes to side with the agreement, it will need to address the legitimate complaints of Fujimori’s supporters who raise the question of why should a FARC war criminal receive an 8-year limited mobility sentence, while their cancer-prone leader is already serving his 11th year of jail-time. Moreover, since Peru never needed a peace agreement, but rather defeated the Shining Path through military means, there are genuine concerns that the Court’s findings may end up producing a system where it is more convenient to settle wars than to actually win them. In other words, if the Court is willing to balance peace and justice, it should take a concrete stance on whether health and justice can be balanced in a similar fashion. And at least from the Court’s own jurisprudence, it seems the question is not so much if health can soften proportionality, but rather when.

One good place to seek guidance for the formulation of a standard is the experience of international tribunals with early release of prisoners. This, of course, does not mean that the Inter-American Court would have to follow the same rules as the ICTY or the ICC (especially considering some of their limitations), but it does offer a good starting point for the Court to build upon its own standard.

The ICTY Rules of Procedure and Evidence include provisions stating that “in determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor” (Rule 125). Article 110 of the Rome Statute, in turn, incorporates a 2/3 of time served trigger for initiation of early release proceedings, which require the ICC to review similar factors, related to collaboration with justice, disassociation with the crimes, reparations, and lack of health or advanced age.

The ICC tested this standard in 2015, denying early release to Thomas Lubanga. The Panel concluded that Lubanga only satisfied the requirement of possible resocialization (¶53) and considered that there was no justification for his release (¶77), particularly given the fact that Lubanga showed no indication of any remorse for his crimes and had provided no significant assistance to the Court (¶64).

Upon these findings, a humanitarian pardon could potentially be consistent with the American Convention on Human Rights, so long as some specific requirements are met. For one, infirmity due to old age or illness needs to have rendered the purposes of punishment impossible, as seen above. As per La Rochela, some general rehabilitative or even transitional purpose needs to be advanced as well. For example, the inmate must have disassociated from his crime and accepted his culpability. The pardon could also be tied to a requirement of collaboration with justice and an offering of full truth. In this sense, if reclusion in a prison can no longer serve any purpose given the individual’s health problems and he or she is no longer defending his crimes, a humanitarian pardon could be consistent with Inter-American human rights law.

These considerations would also need to be evaluated taking into account time served and domestic law. Indeed, a pardon for an individual that has served 2/3 of his or her sentence is more likely to be accepted than one for someone who has only served 1/3. Likewise, even if all of these requirements are present, domestic law would still need to regulate such pardoning, since it is by definition a discretionary prerogative of the Government.

Now, while this change in its approach to proportionality is born out of the Court’s own findings, it may nevertheless be poorly received by the Latin American human rights community, very much used to working from an expanded understanding of Barrios Altos, that leaves little chance for the early release of jailed international criminals. It will be important for human rights advocates to understand that the process started by La Rochela is a direct response to the human rights challenges of the 21st century, just as much as Barrios Altos was a response to the challenges of the 20th. A strong proportionality principle will still be the rule, but once one exception is allowed, it is to be expected that others will follow. One cannot give a blessing to lenient punishment in some exceptional circumstances, while at the same time barring any lenity in punishment in other equally exceptional circumstances.

Moreover, it is still unlikely that this new approach would benefit Alberto Fujimori, who not only remains un-repented of his crimes, but does not seem to be in any form of terminal or extremely ill state that could render his sentence useless. Not to mention the many domestic legal hurdles his proposed pardon would need to face. If anything, other less media sensitive inmates may be benefited, in more justifiable circumstances. After all, one very significant risk Peru’s human rights community needs to avoid in these difficult transitional times is that of the black swan approach to justice, where rules are designed inductively, from a very specific case, and then applied generally. It is justice and humanitarian values -not keeping a specific autocrat in jail- that should inform progressive development of human rights.

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