Amnesty law
An amnesty law is any legislative, constitutional or executive arrangement that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for the crimes that they committed. More specifically, in the 'age of accountability', amnesty laws have come to be considered as granting impunity for the violation of human rights, including institutional measures that preclude the prosecution for such crimes and reprieve those crimes already convicted, avoiding any form of accountability.
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. International, regional and national courts have increasingly overturned general amnesties. And recent peace agreements have largely avoided granting amnesty for serious crimes. 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. 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.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.
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.Argentina
The National Commission for Forced Disappearances, led by writer Ernesto Sabato, was created in 1983. Two years later, the Juicio a las 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 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 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.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 were never criminally prosecuted or tried.In December 2010, the Inter-American Court of Human Rights condemned Brazil for failing to investigate and convict those guilty of "arbitrary detention, torture and forced disappearance of 70 people, including members of the Communist Party of Brazil and peasants in the region" of Araguaia River basin, "as result of Brazilian army operations carried out between 1972 and 1975”, during the Araguaia Guerrilla War. However, on April 29, 2010, the Brazilian Supreme Federal Court rejected a lawsuit brought by the Order of Attorneys of Brazil questioning the validity of the Amnesty Law and ruled, by 7 votes to 2, that the Amnesty Law covers those accused of torture, murder, forced disappearance and sexual abuse committed by the military and other public agents during the regime. At the time, Justice Marco Aurélio said that the Inter-American Court's decision was only politically effective, but "has no concreteness as a judicial title." According to him, the practical effect of the conviction by the Inter-American Court is nothing but "a signal".
In July 2018, the Inter-American Court of Human Rights again condemned Brazil for the "lack of investigation, trial and punishment of those responsible" for the arrest, torture and death of journalist Vladimir Herzog", which took place in 1975. The Inter-American Court's ruling determined that the torture and death of Herzog was a crime against humanity, and therefore not subject to limitations or amnesty.
Chile
When Augusto Pinochet was arrested in London as part of a failed extradition to Spain, which was demanded by magistrate Baltasar Garzón, 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, to have him murdered. 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." 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.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. 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.