Amnesty law

An amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.^[1] Most allegations involve human rights abuses and crimes against humanity.

History

Many countries have been plagued by revolutions, coups and civil war. After such turmoil the leaders of the outgoing regime that want, or are forced, to restore democracy in their country are confronted with possible litigation regarding the "counterinsurgency" actions taken during their reign. It is not uncommon for people to make allegations of human rights abuse and crimes against humanity. To overcome the hazard of facing prosecution, many countries have absolved those involved of their alleged crimes.

Amnesty laws are often also equally problematic to the opposing side as a cost-benefit problem: Is bringing the old leadership to justice worth extending the conflict or rule of the previous regime, with an accompanying increase in suffering and casualties, as the old regime refuses to let go of power?

Victims, their families and human rights organisations—e.g., Amnesty International, Human Rights Watch, Humanitarian Law Project—have opposed such laws through demonstrations and litigation, their argument being that an amnesty law violates local constitutional law and international law by upholding impunity.

Providing amnesty for “international crimes”—which include crimes against humanity, war crimes and genocide—is increasingly considered to be prohibited by international law. This understanding is drawn from the obligations set out in human rights treaties, the decisions of international and regional courts and the law emerging from long-standing state practice (customary international law). International, regional and national courts have increasingly overturned general amnesties. And recent peace agreements have largely avoided granting amnesty for serious crimes.^[2] With that in mind, the International Criminal Court was established to ensure that perpetrators do not evade command responsibility for their crimes should the local government fail to prosecute.

The Belfast Guidelines on Amnesty and Accountability set out a framework to evaluate the legality and legitimacy of amnesties in accordance with the multiple legal obligations faced by states undergoing conflict or political transition.^[3] They have been collectively authored by a group of international human rights and conflict resolution experts led by Louise Mallinder and Tom Hadden at the Transitional Justice Institute.

Countries

Afghanistan

Afghanistan has adopted a law precluding prosecution for war crimes committed in conflicts in previous decades.^[4]

The Afghan government adopted the Action Plan for Peace, Justice, and Reconciliation in December 2005, and hotly debated the plan’s focus on criminal accountability. Later, Parliament adopted a bill that provided a nearly blanket amnesty for all those involved in the Afghan conflict.

The drafting of the amnesty bill was pioneered by some of the former commanders known to have committed human rights abuses and who felt threatened by the sudden emphasis on accountability. Although this bill was never formally recognized as law, it has had major political significance, serving as a clear signal of some human rights violators’ continuing power.^[5]

Algeria

A decree by the President in 2006 makes prosecution impossible for human rights abuses, and even muzzle open debate by criminalizing public discussion about the nation's decade-long conflict.^[6]

Argentina

The National Commission for Forced Disappearances (CONADEP), led by writer Ernesto Sabato, was created in 1983. Two years later, the Juicio a las Juntas (Trial of the Juntas) largely succeeded in proving the crimes of the various juntas which had formed the self-styled National Reorganization Process. Most of the top officers who were tried were sentenced to life imprisonment: Jorge Rafael Videla, Emilio Eduardo Massera, Roberto Eduardo Viola, Armando Lambruschini, Raúl Agosti, Rubén Graffigna, Leopoldo Galtieri, Jorge Anaya and Basilio Lami Dozo. However, Raúl Alfonsín's government voted two amnesty laws in order to avoid the escalation of trials against militaries involved in human rights abuses: the 1986 Ley de Punto Final and the 1987 Ley de Obediencia Debida. President Carlos Menem then pardoned the leaders of the junta and the surviving commanders of the armed leftist guerrilla organizations in 1989–1990. Following persistent activism by the Mothers of the Plaza de Mayo and other associations, the amnesty laws were overturned by the Argentine Supreme Court nearly twenty years later, in June 2005. However, the ruling wasn't applied to the guerrilla leaders, who remained at large.

Benin

In the 1980s, incompetent economic management and ballooning domestic graft,including the draining of funds from parastatals, combined with a continent-wide economic crisis, effectively bankrupted the economy. The government turned to the Bretton Woods institutions for support, which required the implementation of unpopular economic austerity measures. In 1988, when France refused to meet the budgetary shortfall, the three main banks, all state-owned, collapsed and the government was unable to pay teachers, civil servants and soldiers their salaries, nor students their grants. This caused domestic opposition to mushroom, rendering the country ‘virtually ungovernable’.20 The World Bank and the InternationalMonetary Fund (IMF) refused to provide emergency assistance because of Benin’s failure to adhere to prior agreements.21 Kérékou convened a national conference to discuss the country’s future course, bringing together representatives of all sectors of Beninese society, including ‘teachers, students, the military, government officials, religious authorities, non-governmental organizations, more than 50 political parties, ex-presidents, labor unions, business interests, farmers, and dozens of local development organizations’.22 Kérékou believed that he could retain control of the 488 delegates. Instead, when it met in February 1990, the convention declared itself sovereign, redefined the powers of the presidency, reducing Kérékou to a figurehead role, and appointed Nicéphore Soglo, a former World Bank staff member, to act as executive prime minister. In exchange for a full pardon for any crimes he may have committed, Kérékou peacefully ceded power. By March 1991, the Beninese electorate had ratified a new constitution and democratically elected Soglo president. From B. A. Magnusson, ‘Testing Democracy in Benin: Experiments in Institutional Reform’, in R Joseph (ed.), State, Conflict and Democracy in Africa, Boulder: Lynne Rienner, 1999, p 221.

Brazil

In 1979, Brazil’s military dictatorship—which suppressed young political activists and trade unionists—passed an amnesty law. This law allowed exiled activists to return, but was also used to shield human rights violators from prosecution. Perpetrators of human rights abuses during Brazil’s 1964 to 1985 military dictatorship have yet to face criminal justice.^[7] In 2010, the Inter-American Court of Human Rights declared Brazil’s amnesty law illegal because of the provisions that “prevent the investigation and punishment of serious human rights violations” and ordered the nation to begin exploring the gross human rights violations of the past.^[8] On April 9, 2014, a bill (#237/2013) that would modify this law to exclude human rights violations committed by state agents was approved by the Brazilian senate.^[9]

Chile

When Augusto Pinochet was arrested in London as part of a failed extradition to Spain, which was demanded by magistrate Baltasar Garzón, a bit more information concerning Condor was revealed. One of the lawyers who asked for his extradition talked about an attempt to assassinate Carlos Altamirano, leader of the Chilean Socialist Party: Pinochet would have met Italian terrorist Stefano Delle Chiaie in Madrid in 1975, during Franco's funeral, in order to have him murdered.^[10] But as with Bernardo Leighton, who was shot in Rome in 1975 after a meeting the same year in Madrid between Stefano Delle Chiaie, Michael Townley and anti-Castrist Virgilio Paz Romero, the plan ultimately failed.

Chilean judge Juan Guzmán Tapia would eventually make jurisprudence concerning "permanent kidnapping" crime: since the bodies of the victims could not be found, he deemed that the kidnapping may be said to continue, therefore refusing to grant to the military the benefices of the statute of limitation. This helped indict Chilean militaries who were benefitting from a 1978 self-amnesty decree.

Democratic Republic of the Congo

In November 2005 an amnesty law was adopted regarding offences committed between August 1996 and June 2003.^[11]

President Joseph Kabila put an Amnesty Law into effect in May 2009. This law forgives combatants for war-related violence in the eastern provinces of North and South Kivu committed between June 2003 and May 2009 – excluding genocide, war crimes international crimes against humanity.^[12] Although of limited temporal and geographic scope, by granting amnesty for many crimes perpetuated by rebel groups, Congolese armed forces, militias, and police, there is a risk that the law may perpetuate the DRC’s culture of impunity.^[13]

El Salvador

Following the twelve-year-long civil war an amnesty law was passed in 1993.^[14] The law modified a previous amnesty law which was passed in 1992.^[15] In 2016, however, the amnesty law was overturned by the El Salvador Supreme Court.^[16]

England

The Indemnity and Oblivion Act was passed in 1660, as part of rebuilding during the English Restoration after the English Civil War. It was jokingly referred to as producing "indemnity for the King's enemies and oblivion for the King's friends".

The so-called "Alan Turing law" is a proposed amnesty law for men convicted of consensual homosexual sex prior to the passing of the Sexual Offences Act 1967. The Government has announced that the amnesty will be introduced in England and Wales as an amendment to the Policing and Crime Bill 2016.^[17]

Lebanon

An amnesty law for crimes perpetrated before March 28, 1991, was enacted in 1991^[18] after which the militias (with the important exception of Hezbollah) were dissolved, and the Lebanese Armed Forces began to slowly rebuild themselves as Lebanon's only major non-sectarian institution.

Paraguay

Peru

On 14 June 1995, President Alberto Fujimori signed a bill granting amnesty for any human rights abuses or other criminal acts committed from May 1982 to 14 June 1995 as part of the counterinsurgency war by military, police, and civilians.^[19]

The amnesty laws created a new challenge for the human rights movement in Peru. They thwarted the demands for truth and justice that thousands of family members of victims of political violence have been making since the 1980s. Thus, after the fall of Alberto Fujimori in 2001, the Inter-American Court ruled that the amnesty laws 26.479 and 26.492 were invalid because they were incompatible with the American Convention on Human Rights. The court later specified that the ruling was applicable to all Peruvian cases.^[20]

Senegal

A bill absolved anyone convicted for committing political crimes. Among them those who were convicted of having assassinated a constitutional court judge in 1993.^[21]

Sierra Leone

On 7 July 1999, the "Lomé Peace Agreement" was signed. Along with a cease-fire agreement between the government of Alhaji Ahmad Tejan Kabbah and the Revolutionary United Front (RUF) it contained proposals to "expunge responsibility for all offences including international crimes, otherwise known as delict jus gentium such as crimes against humanity, war crimes, genocide, torture and other serious violations of international humanitarian law."^[22]

South Africa

Following the end of apartheid South Africa decided not to prosecute but instead created the Truth and Reconciliation Commission (TRC). Its aim was to investigate and elucidate the crimes committed during the apartheid regime while not indicting in an attempt to make the alleged perpetrators more compliant to cooperate.

The TRC offered of “amnesty for truth” to perpetrators of human rights abuses during the apartheid era. This enabled abusers to confess their actions to the TRC in order to be granted amnesty. It aroused much controversy in the country and internationally.^[23]

Spain

In 1977, the first democratic government elected after Franco's death passed the Law 46/1977, of amnesty, which exempted of responsibility to everyone who committed any offence for political reasons prior to this date. This law allowed the commutation of sentences of those accused to attack the dictatorship and secured that those crimes committed during the Francoism would not be prosecuted.

United States

During the War on Terror, the United States enacted the Military Commissions Act of 2006 in an attempt to regulate the legal procedures involving illegal combatants. Part of the act was an amendment which retroactively rewrote the War Crimes Act effectively making policy makers (i.e., politicians and military leaders) and those applying policy (i.e., CIA interrogators and U.S. soldiers) no longer subject to legal prosecution under U.S. law for acts defined as war crimes before the amendment was passed.^[24] Because of that, critics describe the MCA as an amnesty law for crimes committed in the War on Terror.^[25][26]

Uruguay

Uruguay granted the former military regime amnesty for the violations of human rights during their regime.^[27]

See also

• Command responsibility
• Crime against humanity
• Criminal law
• International humanitarian law
• International Law
• Pardon
• Transitional Justice
• Transitional Justice Institute
• Universal jurisdiction
• War crimes

References