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

Abstract

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.

International courts and atrocities in the XXI century

“…Be that as it may, authors have overall welcomed the IACtHR's jurisprudence on amnesties and pardons (see Binder, 2011;Mallinder, 2016). Furthermore, the IACtHR's case law on amnesties and pardons has proven to be very influential and it has been well received by a number of (the) high(est) national courts across Latin America, with some exceptions (see Mallinder, 2016).…”

Revista completa N° 172

“…Be that as it may, authors have overall welcomed the IACtHR's jurisprudence on amnesties and pardons (see Binder, 2011;Mallinder, 2016). Furthermore, the IACtHR's case law on amnesties and pardons has proven to be very influential and it has been well received by a number of (the) high(est) national courts across Latin America, with some exceptions (see Mallinder, 2016).…”

Why No Justice for Past Repression? Militaries and Human Rights Organizations in Post-Authoritarian States

“…By 2007, the military had again received this immunity in part due to influence over the Ministry of Defense (Jaskoski 2012). Then, in 2010, the Peruvian parliament passed a law attempting to close investigations into past repression (Mallinder 2016). In 2017, the government pardoned Fujimori.…”