Canadian Consortium on Human Security
Amnesty Laws in Latin America: Devalued Currency?
Naomi Roht-Arriaza*
Le résumé français ci-dessous
Latin America in the 1990s was the poster child for the supposed tradeoff between justice and peace. This article reviews recent developments in the key states in the region which have affected previous amnesties granted to individuals supporting the military regime or former junta officials.
In country after country throughout the region, pacts between outgoing military governments and incoming civilian elites led to agreements to not prosecute the old regime and to not rescind the amnesties the military had awarded itself. There were some early exceptions: Argentina tried the members of the various military juntas in 1985, but even there attempts to broaden prosecutions led to military resistance. By 1986, laws that had the effect of an amnesty had been put into place throughout the region, including in Chile, Peru, Uruguay, Brazil, Guatemala and elsewhere.
Ten years later, however, the situation looks substantially different. Even though Chilean ex-General Pinochet died without ever having faced a trial, his death came within one month of formal trial proceedings beginning against him on charges related to corruption and human rights violations. Over a hundred of his subordinates have been convicted. In addition, 35 generals are now facing trial and others are under investigation. Chile’s 1978 amnesty law has now been severely limited. Several courts have held that the amnesty law, first, never applied to cases involving forced disappearances as these are continuing crimes, and, second, may be applied only at the end of all trial proceedings. Only once it has been established that the person is guilty does it become possible to consider amnesty. Moreover, a number of judges have held that amnesty does not apply at all since it violates international law.
In Argentina, the "due obedience" and "punto final" amnesty-type laws were declared unconstitutional in 2005 by the Argentinean Supreme Court and annulled by the legislature. The Court also annulled pardons granted by then President Menem in 1989 and 1990. The former head of investigations of the Buenos Aires police was sentenced to life imprisonment last year, and a priest, Christian Von Wernich, was convicted for his role in the homicide and torture of prisoners. The main issue now is not amnesty but rather how to consolidate the trials of the remaining defendants so that they can be completed within a reasonable timeframe.
In the case of Peru, its amnesty law was annulled after the Inter-American Court of Human Rights found in 2001 that it violated the rights to a remedy and to access to justice of the victims in a case called Barrios Altos involving a massacre of 15 people in 1991. Former President Alberto Fujimori is, as of January 2008, on trial for that massacre among other crimes. Fujimori had fled to Japan when his government collapsed, but later traveled to Chile, where he was arrested and eventually extradited back to Peru to stand trial. The prosecutors' office has also moved forward on a number of other massacre cases.
Uruguay was one of the last of the South American governments to holdout on the overturning of amnesties. The incoming civilian government passed an amnesty law immediately after the return to civilian rule, which was upheld by a plebiscite. That law held until about two years ago. However, there are now cases opening in Uruguay against a number of high ranking military officials as well as the ex-President and the ex-Foreign Minister, who as civilians were not protected by the amnesty.
Central America provides a more mixed picture. In Honduras, the Supreme Court long ago held that an amnesty law could not preclude the investigation of crimes. In El Salvador, the amnesty continues intact; a 2003 Supreme Court case held that cases that violated victims' fundamental rights were not subject to amnesty. The prosecutor's office so far, however, has refused to characterize anything as such a violation. In Guatemala, the Law of National Reconciliation allows for amnesty in the case of crimes connected to the internal armed conflict, but specifically exempts genocide, torture, forced disappearance and other international crimes. Despite the lack of an amnesty law however, prosecutions for these crimes have been few and far between. In December 2007 the Constitutional Court held that high-ranking military officers accused of genocide would not be extradited to Spain to stand trial there. With no domestic prosecution underway, Guatemala is thus in violation of its obligation to extradite or prosecute those accused of torture, genocide and other grave crimes.
Finally, in Colombia, a 2005 Justice and Peace law avoids outright amnesty, providing instead for significantly reduced penalties for members of armed groups who demobilize, turn over assets belonging to victims and submit to prosecution. The law has been criticized as a disguised amnesty, but ensures that those responsible for war crimes will serve at least minimal jail time.
What happened to create this changed panorama? An initial spate of legal challenges to amnesty laws in Chile, Argentina, El Salvador, Guatemala, Honduras and Peru were unsuccessful. Over the following years, lower courts began carving out exceptions and interpretations of those laws that allowed some investigations to go forward. In Argentina, for instance, attorneys for victims first found loopholes in the amnesty laws for child kidnapping or stealing victims' goods. The Argentines also invented "truth trials" where witnesses presented evidence not for prosecution, but for clarifying the fate of the disappeared. Changes in the constitution (as in the case of Argentina) to give human rights treaties superior status as well as attempts to reform the judiciary played a role in eroding the amnesty laws in some countries. So did the coming of age of the children of the victims as well as a new generation of judges and military officers, many without links to the repressive regimes and others with a desire to point public scrutiny away from current corruption and arms sales scandals.
The decisions of the Inter-American Commission criticizing amnesty laws throughout the Americas proved especially important in underlining the legal basis for overturning amnesty laws. In decisions involving Argentina, Uruguay, El Salvador, Chile and Peru, the Commission found that their laws violated several provisions of the American Convention on Human Rights, including the right to a fair trial, the right to a remedy and the obligation of the state to protect these rights. The Commission was especially critical of the effect on the victims and survivors of the inability to use either civil or criminal proceedings to find out what had happened to loved ones and who was responsible. In the Barrios Altos case in 2001 the Inter-American Court essentially endorsed the Commission's approach.
Judges outside the region also denied any effect of the amnesties on their own investigations into the crimes. Judge Garzón, the judge who prosecuted Pinochet and the Argentine generals in Spain under Spain's universal jurisdiction for genocide, terrorism and torture, for example, found that these laws had no effect on his investigation. Similarly, in the extradition case in Mexico involving the Argentine Ricardo Miguel Cavallo, a former naval lieutenant who served in the infamous torture and detention camp at the Naval Mechanics School (ESMA), trial judge Jesus Guadalupe Luna found that Argentina's amnesty laws had no legal effect outside Argentina because they violated the international obligation to investigate and prosecute the alleged crimes.
By negating the validity of blanket amnesty laws for disappearances, killings and torture, these decisions by third-party national courts have greatly devalued amnesties within their home countries. The Pinochet case illustrated the dangers of foreign travel and of possible extradition even when the home country has an amnesty law in place. Moreover, potential defendants have begun to realize that a domestic amnesty may not be worth much if it does not apply outside the borders of their country. As described above, recent events have proven that amnesties may lose their value over time even within the domestic context.
* Naomi Roht-Arriaza is Professor of Law at the University of California, Hastings College of the Law in San Francisco, where she teaches International Human Rights law and Accountability in International Law, among other subjects. She graduated from Boalt Hall, University of California, Berkeley, in 1990, and also has a Masters in Public Policy from UC Berkeley. She was the first Steven Riesenfeld fellow in International Law at Boalt. She is the author of Impunity and Human Rights in International Law and Practice (OUP Press, 1995) and The Pinochet Effect: Transnational Justice in the Age of Human Rights (Penn Press, 2005), and co-editor of Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Cambridge University Press, 2006) as well as numerous law review articles on transitional justice, international criminal accountability, universal jurisdiction and reparations issues. She has participated as an expert witness in cases filed under the Alien Tort Statute, has been a project adviser and participant for the International Center on Transitional Justice, and has taught in the human rights programs of Oxford University, American University and the University of San Francisco, among others. She is a National Board Member of Human Rights Advocates, and a member of the legal advisory board of the Center for Justice and Accountability, where she advises on universal jurisdiction cases.
Le résumé français - Lois d’amnisties en Amérique latine : Devise dévaluée?
L’Amérique latine dans les années 90 était l’enfant-vedette d’affiche pour l’octroi des amnisties. Naomi Roht-Arriaza passe en revue des développements récents dans les états principaux des régions qui ont affectés des amnisties précédentes accordés aux individus soutenant le régime militaire et aux anciens fonctionnaires de la junte. Les pays inclus dans la revue sont le Chili, l’Argentine, le Pérou, l’Uruguay, l’Honduras, le Salvador, le Guatemala et la Colombie. Dans presque tous ces cas, la validité de l’amnistie couvrante a été défiée avec succès par les cours locales, souvent soutenues par des décisions de la Commission Inter-Américaine qui critique les lois d’amnistie dans l’ensemble des Amériques. L’article accentue également l’inadmissibilité des lois couvrantes d’amnistie quant aux disparitions, aux massacres et aux tortures dans les cours de droit international. Comme mieux démontré dans le cas de Pinochet, ex-général chilien, les individus n’ont désormais plus la garantie d’impunité en dehors de leurs frontières nationales. Ces évènements accentuent l’affaiblissement de la valeur que les amnisties détiennent en Amérique latine.
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