Amnesties: Three Disparate Contexts, Similar Goals?

Amnesties: Three Disparate Contexts, Similar Goals?

This week has seen news of potential use of amnesty laws in three countries – the Central African Republic, Guatemala, and Venezuela.

Here, nuances are important to highlight. In CAR, with the peace agreement under wraps initially, early news reports indicated the push for a ‘blanket’ amnesty, i.e. exemption from international crimes, including crimes against humanity and war crimes. Other reports however indicated a ‘conditional’ amnesty, i.e. amnesty for some crimes (such as theft) but not for international crimes. The agreement is now finally public and does not have a direct reference to amnesty. In Guatemala, the peace agreement did not permit blanket amnesties and prosecutions have been slowly making their way through the courts over the last two decades. Reports suggest that this very lack of a sweeping amnesty at the time of the peace accords and the ability to prosecute is in fact a precipitating factor in the current amnesty legislation – among others including the CICIG crisis. In Venezuela, the talk of amnesty is a way of coaxing the security forces as well as Nicolas Maduro away from the seat of power, though the likelihood of success of this strategy is uncertain and perhaps unlikely.

So how are we talking about amnesties again and in such diverse contexts? It seemed that the heyday of amnesties were behind us. With developments in international law – the obligation to prosecute, the right to the truth, the right to reparations and guarantees of non-repetition – the power of amnesties seemed to be waning. At the signing of the Lomé Agreement in 1999, the UN clarified its position on the incompatibility of blanket amnesties with international law. The legal framework regarding amnesty has evolved, with restraints on the unfettered use of amnesty provisions, reflected partly in the Rome Statute. Significant decisions by the Inter-American Court of Human Rights in the case of Barrios Altos, and of constitutional courts such as in El Salvador indicated the rejection of a complete amnesty as a tool for peace. Perhaps the oft used ‘peace v justice dilemma’ would be relegated to the sidelines? The assessment that a limited or ‘conditional’ amnesty, based on conditions and for particular acts (excluding international crimes) gained acceptance. The seminal UN report on transitional justice in 2004 made clear that there should be no acceptance of an amnesty for crimes such as genocide, war crimes and crimes against humanity (para. 40 & para. 64 (c)).

However, the practice of amnesties belies these developments – amnesties are still very much in use, in a variety of contexts and include state and non-state actors. They have also included as well as excluded international crimes. The Belfast Guidelines on Amnesty also provide an operational and normative framework. (Details available on the Political Settlements Research Program project, which is part of an update of Dr. Louise Mallinder’s amnesty law database – an incredible resource. Also see recent working paper here.)

These developments indicate amnesties are still a tool – in some cases for the pursuit of peace, and in others, that provide a veil of impunity – depending on the type of amnesty. A few observations regarding the three countries, and particular aspects to highlight in the discussion around amnesty.

In relation to CAR, the point to note is the lack of the use of the word ‘amnesty’ in the agreement. (The full text of the peace agreement in French is available here.) However, is the use of the term necessary to create conditions of de facto amnesty? Perusing the agreement, it is significant to note that in the section on “Justice and national reconciliation”, Article 7 references the “total rejection of impunity”, and the recognition of the principle of the presumption of innocence. Article 9 references the establishment of a Commission on truth, justice, reparation and reconciliation (CVJRR), which is to be set up within 90 days and has within its purview the intention to “promote truth, justice, national reconciliation, reparations” as well as the power to “pardon” (Article 9 and Article 4(s)). It may be argued that with no reference to prosecutions and the Special Criminal Court for CAR, and the ability to pardon (despite the legal distinction between pardons and amnesty), the establishment of the truth commission may be a way to sidestep the question of accountability – at least for now. This case also highlights the importance of the intersection of the various mechanisms of transitional justice – truth commissions, prosecutions, reparations – and their sequencing.

In Venezuela, the amnesty bill that has been proposed by Juan Guaidóand his supporters to military officials to gain control is unique in that in many cases of transitions, such amnesties are usually self-amnesty – i.e. the outgoing authorities putting in place a law giving amnesty to themselves. In this case, this is an offer by members of the opposition who – as yet – have little real power in implementing the law. Another point to raise is that this is meant to be interim according to Guaidó – but unclear how such a qualification will achieve its ends i.e. to facilitate a transition, if the incentive being used is eventually to be disregarded. Overall, while it is unclear what this strategy will achieve, it is also worth questioning the cost of such a proposal including to those Venezuelans who have lost lives or been tortured and injured by the current regime of Nicolás Maduro.

In Guatemala, one aspect of the broader context are the successful prosecutions of the past few years in cases of mass atrocities including conflict related sexual violence in Sepur Zarco, the conviction and subsequent overruling and order for retrial of Efraín Ríos Montt for genocide, and convictions of over thirty military officials. It is worth noting that the 1996 peace accord in Guatemala had an amnesty provision for the purposes of ‘political’ crimes and related crimes, i.e. acts committed pursuant to a political aim, but not for international crimes. As a result, prosecutions have taken place over the years, with a lot of effort and perseverance by victims and civil society. (For details on amnesty provisions and prosecutions in Guatemala, see here) Also, the truth commission established as a result of the peace agreement – the Commission for Historical Clarification– paved the way for many of the prosecutions and reiterated the limits of the amnesty.

The contexts of these three situations is different – the first, an African Union and United Nations negotiated peace settlement with fourteen armed groups; the second, a new initiative over twenty years after a peace agreement, as a result of successful prosecutions; and the third, an attempt to coerce an authoritarian out of power. Three remarkably different circumstances, and one commonality – indication of some version of amnesty. A few preliminary conclusions – the continuing relevance of amnesty laws, even years after peace agreements are signed; the problematic strategy and usage in the attempt to create conditions for a transition; and the relevance of sequencing and timing of transitional justice initiatives and their interrelationships.

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Seb Eskauriatza
Seb Eskauriatza

There is also the ‘indirect-amnesty’ between the Mexican government and the different Cartel bosses in the country – not a legislative measure as such (not yet, as far as I know) but very clear statements by the President that this government’s policy is to refrain from investigating, prosecuting and punishing the Cartels.