Amnesties’ Challenge to the Global Accountability Norm? Interpreting Regional and International Trends in Amnesty Enactment

Abstract

It is widely acknowledged that during the last decades of the twentieth century, the engagement of states with international human rights norms underwent a significant transformation. 3 Evidence for this can be seen in states" involvement in the creation of new human rights institutions and international treaties. For example, with the entry into force of human rights instruments such as Optional Protocol to the International Covenant on Civil and Political Rights (in 1976) 4 and the American Convention on Human Rights (in 1978), 5 participating nation states empowered human rights monitoring institutions to investigate individual complaints of state responsibility for human rights violations, even when the complaints were made by their own citizens. In addition, through the agreement of treaties such as the Convention against Torture, 6 states created new transnational offences that state parties were obliged to prevent and punish. Furthermore, in addition to submitting themselves

Transitional Justice in Latin America

“…Keeping in mind the findings of Mallinder (2012aMallinder ( , 2014 and about the possible coexistence of amnesty with prosecutions, we evaluate not just the presence or absence of amnesty legislation but also (a) its quality, scope, and real-life application where it does exist and (b) actual justice practice (diligence or not, and respect for due process, in pursuing prosecutions) where it does not. An informal de facto amnesty without explicit legal underwriting can be at least as potent as a formal law, yet is less susceptible to overt challenge.…”

Law and Politics in Transitional Justice

“…The popularity of this approach was sustained through the past four decades, even increasing in the 1990s, but it also came under intense international pressure. In 2009, the UN issued formal guidelines on the use of amnesties (OHCHR 2009, Mallinder 2012), but some leading international legal scholars contested the dominant assumption that amnesties were illegal for international crimes (Freeman 2009). The Belfast Guidelines attempted to delineate ideal practices for the use of conditional amnesty.…”

“…The Belfast Guidelines attempted to delineate ideal practices for the use of conditional amnesty. Scholars likewise delineated the types of possible amnesties, noting that amnesties may be unconditional or conditional on stepping down from office, surrendering weapons, demobilizing a fighting force, stopping abusive practices, or testifying before a truth commission (Mallinder 2008, Freeman 2009, Transitional Justice Institute 2013.…”

“…In the 1990s, before the legality of amnesties had been challenged, their use increased, as did the incidence of civil wars, many of which were resolved through negotiated settlements. Between 1980 and 2006, amnesties were more common than either trials or truth commissions in peace agreements (Vinjamuri & Boesenecker 2007, Mallinder 2012. After 2007 the enactment of amnesty laws declined in terms of absolute numbers (Mallinder 2012), but this may reflect a corresponding decline in that period of postconflict and postauthoritarian transitions creating occasions for amnesties.…”

“…Amnesties continue to be adopted, especially in conflict cases. Over the past 30 years, almost half of all amnesty laws were related to conflicts, many of them ongoing (Mallinder 2012).…”