So, You Pardoned a War Criminal…

You have heard the news and know what might happen. Your President may pardon a war criminal. You, certainly, disapprove. You believe in international justice and you are convinced war criminals need to be punished for their crimes. You want to do something about it, but you have read the blog posts and newspapers. Judging by recent experience, the ICC will likely not help. Yours is a powerful nation, and if you have learned anything from the Afghanistan fiasco is that politics can easily trump the “interest of justice”. For a second there, you also ponder about the possibility of other nations intervening. After all, you have been reading the blog posts: Pardoning a war crime can itself be a war crime, and these are subject to universal jurisdiction. But the last time anything like this was attempted, it did not go well. Belgium’s and Spain’s universal jurisdiction laws were rolled back until they could not represent a threat to America’s War on Terror. That will not do. You are running out of options and don’t know what to do. Suddenly, it hits you…

South American dictatorships tried, throughout the 80s and 90s, to shield themselves from domestic prosecution through the approval of amnesties and pardons. The practice is so ubiquitous that there is even a term for it in Spanish: “leyes de impunidad”, impunity laws. And yet, most of these laws and decrees (with the notable exception of Brazil), have been overturned, annulled or repealed. “Brilliant! Let’s annul the pardon!”, you think. But… how does one do that? After all, most experts you have read seem to accept that Presidents can pardon whoever they want. It is so clear that your Constitution expressly establishes it. But then again, so does Article 118-21 of the Peruvian Constitution and 99-5 of the Argentinean Constitution, and both of these states have annulled pardons contrary to international law. So let’s see how they pulled it off and see if it can work for your country as well, shall we?  

First, though, I need to draw some distinctions between amnesties and pardons. Amnesties, at least in Latin America, are usually approved by the Legislative body and act pre-emptively. The individual in question has usually not been tried in court and the amnesty simply makes the state “forget” that he ever committed a crime. Pardons, on the other hand, tend to be reactive. The individual has committed a crime and is serving time as a result of his sentence. His crime is then “forgiven” by the State (but not forgotten).

For the purposes of human rights law, whether pre-emptive or reactive, the main point is that they do not create impunity. Both Inter-American law and general International law forbid impunity laws whatever their name or legal shape. For the Inter-American System, The key point is that these laws (be them pardons or amnesties) “exclude liability”, are “aimed at preventing criminal prosecution” or “at voiding the effects of a conviction” of a gross human rights violation (See Gutierrez-Soler v. Colombia, ¶97). Thus, as the ICRC recently stated, “[c]ustomary law is unequivocal that (…) governments must investigate war crimes allegedly committed by their nationals or armed forces, or in their territories, and if appropriate, prosecute suspects”. In other words, domestic law cannot create impunity and be consistent with international law at the same time.

But back to South America. The process of creating a law against impunity – a jus contra impunitatem, if you will – was (and continues to be) slow and convoluted. More than most Latin Americans would like to recognize, considering recent events. At the same time, however, the system is robust enough to be considered an integral part of the regional legal culture. It all started with Peru, during the authoritarian government of Alberto Fujimori. In 1995, in the midst of an armed conflict against the Shining Path, a Fujimorista-dominated Congress passed Laws 26479 and 26492. These granted an amnesty to those soldiers, policemen and civilians that had committed gross human rights violations in the fight against terrorism. Specifically, the laws benefitted the members of the Government’s death squad known as “Grupo Colina”, responsible for several massacres of civilians accused of ties with the Shining Path.

One of these massacres, perhaps the most gruesome, was Barrios Altos, where Colina executed a group of civilians (later found to have had no ties to the Shining Path) point blank, with a shot to the back of their heads. In 1995, Judge Antonia Saquicuray, now a symbol of Peru’s human rights movement, heard a case brought up by the families of those dead at Barrios Altos. For the judge, Article 1.1 of the American Convention on Human Rights (containing the “respect and ensure” clause) mandated Peru to investigate human rights violations and punish those responsible. Simply put, if Peru is obligated to respect and ensure human rights, it cannot shield human rights violators from justice. “The Peruvian State is not isolated from these rules and principles”, she said, declaring the amnesty “inapplicable” to the members of Colina.

Her judgment, however, was overturned in the next instance, and the claimants filed a petition before the Inter-American System. The Inter-American Court issued its judgment in 2001, declaring that: “[A]ll amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they intend to prevent the investigation and punishment of those responsible for serious human rights violations” (¶41). For the Court:

“Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated” (highlight added).

In other words, the amnesty laws were null and void. Although a controversial statement at the time, in 2007, the Peruvian Constitutional Tribunal agreed, and since then, all blanket amnesty laws in Peru are simply unconstitutional. The Barrios Altos case sent shockwaves throughout the region, creating a cascade of cases aimed at annulling amnesty laws in Chile (Almonacid Arellano, 2006), Uruguay (Gelman, 2011), and, albeit ultimately unsuccessfully, Brazil (Gomes Lund, 2010). While the Barrios Altos standard itself was received with varying levels of success in each of these countries, the fight against impunity in the region advanced substantially, with the authority of both the Chilean and Uruguayan amnesty laws being considerably limited, and giving way to several criminal indictments.

With this background on amnesties, let’s turn to Argentina and impunity pardons. In 1983, the country regained its democracy after seven years of military rule. The first democratic President, Raúl Alfonsín, began his term determined to see justice. His Congress repealed the military Junta’s self-amnesty law and initiated proceedings to try the Junta members for their gross human rights violations. In 1986, Jorge Videla and Emilio Massera, two of Argentina’s most ruthless dictators, were condemned to life in prison. Three others received jail sentences ranging from 17 years to 4 and a half years, while four were absolved.

President Alfonsín’s successor, Carlos Menem, however, disagreed. In 1990, arguing a need for reconciliation between Argentineans, he issued Decree 2741/90, pardoning all five Junta members. After Menem left office, in 1999, there was a strong reaction against his pardons. By 2003, after Congress repealed key legislation that barred investigation of past human rights abuses (the so called Punto Final and Obediencia Debida Laws), lower courts began to annul Menem’s pardons, using the Barrios Altos ruling as inspiration. One of these cases, the “Mazzeo case”, made it to the Argentinean Supreme Court in 2007. The ensuing judgment is a fundamental piece in Argentina’s fight against impunity.

For the Argentinean Supreme Court, international law set out a clear obligation to investigate and punish gross violations of human rights. “[T]hese declarations” – it said – “import the recognition of man’s pre-existing rights not to be the object of persecution by the state (…) [which] requires us to exclude certain criminal acts from the legitimate exercise of state functions” (¶13). International rules create a system for the protection of human rights that is “not susceptible to repeal by contrary treaties and must be applied by the domestic tribunals of each state independently of its express acceptance” (¶15). The Court stated that, thanks to the International Covenant of Civil and Political Rights, the UN Declaration of Human Rights and the UN Charter itself, at the time Mazzeo’s crimes were committed, there was an international legal system in place that demanded his crimes receive sanction.

The defendant, therefore, could not benefit from the principles of res judicata or ne bis in idem to claim he had been pardoned and therefore could not be sanctioned (¶33). The judgment that acquitted him, upholding his pardon, had the purpose of creating impunity and therefore created “fraudulent res judicata”, not opposable to the Supreme Court. It said:

“[T]he principles that, at the domestic level, are usually used to justify the institutions of res judicata and ne bis in idem are not applicable with regard to this type of crime against humanity because the international instruments that establish these category of crimes, as well as the subsequent duty of the State to individualize and try those responsible, do not contemplate, and therefore do not admit, that this obligation can cease through the passage of time, amnesty or any other kind of measure that dissolves the possibility of reproach” (¶37). 

After this case, by 2010, Videla and Massera’s pardons had also been annulled. The result of all of these developments was the creation of a very resistant body of laws against impunity in Latin America (although perhaps more specifically in Spanish-speaking South America). Under these rules, judges in the region are able to annul pardons and amnesties that got in the way of truth and justice. This system is not without controversy, of course, (and I may soon come back to it in a more critical light in a later post) but it is a system that has considerably strengthened the obligation to investigate and prosecute gross human rights violations.

The system’s strength was recently tested by the state that started it all. In late 2017, former Peruvian President, Pedro Pablo Kuczynski, pardoned Alberto Fujimori, the President responsible for the Barrios Altos massacre all those years ago. Kuczynski, or PPK as he is better known in Peru, claimed the pardon was granted on humanitarian grounds, given Fujimori’s alleged health issues. The case was swiftly taken up by the Inter-American Court of Human Rights, in its supervisory capacity. In its decision, the Court ordered Peru to evaluate the proportionality of the pardon in light of the Court’s jurisprudence, and have its domestic tribunals decide whether it was in accordance with the duty to investigate, judge and sanction the Barrios Altos massacre.  

A few months later, the Peruvian Supreme Court did just that: “The pardon can be the subject of jurisdictional control. In fact, it can be subject, extraordinarily, of judicial annulment”, it said. “Naturally, this control cannot be founded in the convenience of the pardon (since the reasons for which it is granted are subject to the President’s discretion) but in its constitutionality” (¶147). Ultimately, the Court concluded that Fujimori’s pardon was contrary to the American Convention of Human Rights and the jurisprudence of the nation’s Constitutional Tribunal, declaring the pardon null (¶299). A few months later, Fujimori went back to jail.

It seems, therefore, that when looked at from the perspective of international law and accountability, rather than domestic law and exceptionalism, it is perfectly possible, if not rather common, to overcome domestic limitations seeking impunity for international crimes. This is something, however, that has traditionally escaped the narratives of countries that have yet to undergo serious effective processes of accountability for past crimes, like Brazil or the United States. In both of these countries, lack of political will to “look backwards”, has allowed impunity laws like pardons or amnesties to remain an acceptable way to deal with past atrocities. The South American experience, while not without flaws and problems, is strong evidence that this does not, and should not, be the only alternative. It is my hope, therefore, that when discussing impunity laws in these states, legal scholars will not start their posts and papers from the position that a pardon for an international crime is legal because domestic law says so. The way we speak about impunity matters; and impunity should be seen as the illegal social evil it is, not tolerated as an unfixable but integral part of the legal system. That is, at least in the South American experience, the first step in a long, arduous path away from impunity and towards accountability.