Persistent or Eroding Impunity? The Divergent Effects of Legal Challenges to Amnesty Laws for Past Human Rights Violations

Lessa, Francesca; Olsen, Tricia D.; Payne, Leigh A.; Pereira, Gabriel; Reiter, Andrew G.

doi:10.1017/s0021223713000289

Cited by 7 publications

(3 citation statements)

References 21 publications

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“…As academic literature has analysed, states continue granting amnesties and similar exemption measures, even in cases of international crimes. 105 There are several grounds underlying these domestic practices, including the need to move on from violent pasts, 106 prevent future atrocities, 107 and/or pave the transition to democratic regimes. 108 Nevertheless, there are important trends in state practice that suggest the increasing inadmissibility or limitation of amnesties in cases of serious violations in terms of: subject-matter, i.e., international crimes excluded; intended beneficiaries; and requirements.…”

Section: Domestic Practicesmentioning

confidence: 99%

The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment

Perez-Leon-Acevedo

2020

Leiden Journal of International Law

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In 2001, the Inter-American Court of Human Rights (IACtHR) seminally found self-amnesty laws on serious human rights violations to be null and void. However, later national reactions showed that this supranational control has faced challenges. Such supranational judicial authority has been exercised where amnesty laws and other exemption measures blocked judicial cases, democratic referendums upheld legislation, and peace-making processes existed. This article seeks to determine whether the traditionally interventionist jurisprudence of the IACtHR on amnesty laws/exemption measures has been legitimate under global constitutionalism standards. The standards considered are: human rights, namely, rights of victims of mass atrocities; consistency or coherence of this jurisprudence with international, regional and national practices; and democratic legitimacy and/or accountability considerations. Victim rights have underlain the IACtHR’s jurisprudence on amnesty laws and similar measures. Importantly, developments on victim rights are not exclusive to the IACtHR as case law of other supranational human rights bodies evidences. Among human rights courts and bodies, the IACtHR has exercised the highest level of control over amnesty laws/exemption measures, even nullifying national legislation. However, the IACtHR’s case law shares common principles with UN/regional jurisprudential developments and domestic practices in terms of inadmissibility of amnesties and other exemption measures in cases of serious abuses. Unlike the European Court of Human Rights (ECtHR), the IACtHR has not deferred to sovereign state appreciation (conventionality control doctrine). Nevertheless, the IACtHR has arguably begun to move towards more ‘moderated’ approaches. This is advisable under democratic legitimacy considerations.

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Section: Domestic Practicesmentioning

confidence: 99%

The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment

Perez-Leon-Acevedo

2020

Leiden Journal of International Law

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“…Today, states are conducting amnesty proceedings as a recurring practice. 20 Amnesty popularly perceived as a method to prevent perpetrators from assuming their responsibilities. It is often understood as a way of avoiding fairness and promoting impunity.…”

Section: Providing Amnesty To Perpetratorsmentioning

confidence: 99%

Has the Ability of Truth Commissions to Recommend Amnesty Been Effective in Enhancing Perpetrator Cooperation?

Sarkin¹

2019

RDI

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This article examines the amnesty powers granted to a variety of truth commissions (TC). It considers whether the process by which TCs are able to recommend for perpetrators who cooperate with TCs (and usually provide truth) has ensured that such individuals come forward and cooperate with these institutions. This is decisive, as TCs everywhere experience difficulties in obtaining perpetrator cooperation and testimony. Crucially, unlike the South African TC, which had the power to directly grant amnesty, later TCs have only been able to recommend, to their governments, that amnesty be granted to specific persons who meet criteria laid out in the specific TC's legal mandate. The article therefore examines the efficacy of TC amnesty

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“…A large-n analysis of challenges to 63 amnesties for human rights violations committed by State agents enacted in 34 countries between 1974 and 2011 has shown that 'Outside the [South American] region, it is rare for past amnesties even for the most serious offences to be annulled, however, a small number have been limited in a few cases.' 122 Similarly, in reflecting on the 'persistence of amnesties', Jeffery has observed that 'It remains the case that most perpetrators of human rights violations granted amnesties in the past can rest secure in the knowledge that it is highly unlikely that they will ever face prosecution for their crimes.' 123 Consequently, in many parts of the world, the vast majority of past amnesties remain in effect and have not had their scope limited to exclude serious crimes.…”

Section: B Durabilitymentioning

confidence: 99%

The End of Amnesty or Regional Overreach? Interpreting the Erosion of South America’s Amnesty Laws

Mallinder¹

2016

ICLQ

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The atrocious abuses committed under South America's dictators resulted in a wave of amnesties. Following transitions to democracy, challenges from victims and civil society unpicked several of these amnesties, leading to hundreds of perpetrators facing prosecution. These developments prompted far-reaching claims in academic literature and policy reports regarding the significance of the erosion of South America's amnesties for shaping international legal norms and policy preferences on amnesties within the region and beyond. This article draws on a comparative analysis of case law from the Inter-American Court of Human Rights and national courts as well as legislative changes to argue that there is a regional trend to move away from broad, unconditional amnesties enacted during or after dictatorial rule. However, it notes that this is not universal across the region, nor does it represent a rejection of all forms of amnesty. The article then tests the claims being made in the literature regarding the significance of the regional trend on the legality, durability and desirability of amnesties. It finds that there is little evidence to support claims that the regional developments are indicative of a broader normative shift. It concludes by identifying the risks posed by regional overreach.

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Persistent or Eroding Impunity? The Divergent Effects of Legal Challenges to Amnesty Laws for Past Human Rights Violations

Cited by 7 publications

References 21 publications

The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment

The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment

Has the Ability of Truth Commissions to Recommend Amnesty Been Effective in Enhancing Perpetrator Cooperation?

The End of Amnesty or Regional Overreach? Interpreting the Erosion of South America’s Amnesty Laws

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