- 1 History
- 2 Countries with amnesty laws
- 3 See also
- 4 References
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.
Even though suspects are no longer subject to judicial review under local law, their amnesty does not invalidate international law. 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.
Countries with amnesty laws
Afghanistan has adopted a law precluding prosecution for war crimes committed in conflicts in previous decades.
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.
The National Commission for Forced Disappearances (CONADEP), led by writer Ernesto Sabato, was created in 1983. Two years later, the Juicio a las Juntas (Trial of the 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 in order 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.
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 (IMF) 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. From B. A. Magnusson, ‘Testing Democracy in Benin: Experiments in Institutional Reform’, in R Joseph (ed.), State, Conflict and Democracy in Africa, Boulder: Lynne Rienner, 1999, p 221.
When Augusto Pinochet was arrested in London as part of a failed extradition to Spain, which was demanded by magistrate Baltasar Garzón, a bit 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, in order 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, former CIA agent Michael Townley and anti-Castrist Virgilio Paz Romero, the plan ultimately failed.
Chilean judge Juan Guzmán Tapia would eventually make jurisprudence concerning "permanent kidnapping" crime: 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.
Following the twelve year long civil war an amnesty law was passed in 1993.
The Indemnity and Oblivion Act was passed in 1660, as part of rebuilding during the English Restoration after the English Civil War. It was jokingly referred to as producing "indemnity for the King's enemies and oblivion for the King's friends".
An amnesty law for crimes perpetrated before March 28, 1991, was enacted in 1991 after which the militias (with the important exception of Hezbollah) were dissolved, and the Lebanese Armed Forces began to slowly rebuild themselves as Lebanon's only major non-sectarian institution.
On 14 June 1995 President Alberto Fujimori signed a bill granting amnesty for any human rights abuses or other criminal acts committed from May 1982 to 14 June 1995 that was part of the counterinsurgency war by military, police, and civilians.
A bill absolved anyone convicted for committing political crimes. Among them those who were convicted of having assassinated a constitutional court judge in 1993.
On 7 July 1999, the "Lomé Peace Agreement" was signed. Along with a cease-fire agreement between the government of Alhaji Ahmad Tejan Kabbah and the Revolutionary United Front (RUF) it contained proposals to "expunge responsibility for all offences including international crimes, otherwise known as delict jus gentium such as crimes against humanity, war crimes, genocide, torture and other serious violations of international humanitarian law."
Following the end of apartheid South Africa decided not to prosecute but instead created the Truth and Reconciliation Commission (TRC). Its aim was to investigate and elucidate the crimes committed during the apartheid regime while not indicting in an attempt to make the alleged perpetrators more compliant to cooperate.
In 1977, the first democratic government elected after Franco's death passed the Law 46/1977, of amnesty, which exempted of responsibility to everyone who committed any offence for political reasons prior to this date. This law allowed not just the commutation of sentences of those accused to attack the dictatorship, it secured that those crimes committed during the Francoism would not be prosecuted.
During the War on Terror, the Bush administration enacted the Military Commissions Act (MCA) in an attempt to regulate the legal procedures involving detainees called illegal combatants. Part of the act was an amendment which retroactively rewrote the War Crimes Act effectively making policy makers (i.e., politicians and military leaders) and those applying policy (i.e., CIA interogators and soldiers) no longer subject to legal prosecution under US law for acts defined as war crimes before the amendment was passed. Because of that, critics describe the MCA as an amnesty law for crimes committed in the War on Terror. The United States Constitution, however, prohibits retroactive laws.
Uruguay granted the former military regime amnesty for the violations of human rights during their regime.
See: Craig L. Arceneaux, Bounded missions, p220 and Alexandra Barahona de Brito, Human rights and democratization in Latin America p136
- Command responsibility
- Crime against humanity
- Criminal law
- International humanitarian law
- International Law
- Universal jurisdiction
- War crimes
- Amnesty By William Bourdon, Crimes of War Project, The Book
- AFGHANISTAN: AMNESTY LAW DRAWS CRITICISM, PRAISE by Ron Synovitz, EurasiaNet, 3/17/07
- Las Relaciones Secretas entre Pinochet, Franco y la P2 - Conspiracion para matar, Equipo Nizkor, February 4, 1999 (Spanish)
- Amnesty law passed without MPs from Kabila's party by IRIN, the humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs.
- Amnesty Law Biggest Obstacle to Human Rights, Say Activists by Raúl Gutiérrez, Inter Press Service News Agency, May 19, 2007
- Lebanon: Mass Graves - Exhumations must be in line with international standards, and perpetrators brought to justice by Amnesty International, December 5, 2005
- The New Amnesty Law in Peru by NACLA Report on the Americas (Sept/Oct 1995)
- Senegal opposition to amnesty law By Tidiane Sy, BBC, January 11, 2005
- Is the Sierra Leonean Amnesty Law Compatible with International Law? by Phenyo Keiseng Rakate, MenschenRechtsMagazin Heft 3 / 2000
- No longer punishable under US law
- Thoughts on the "Bringing Terrorists to Justice Act of 2006" John Dean, FindLaw,Sep. 22, 2006
- The Military Commissions Act of 2006: A Short Primer - Part Two of a Two-Part Series By JOANNE MARINER, FindLaw, Oct. 25, 2006
- Why The Military Commissions Act is No Moderate Compromise By MICHAEL C. DORF, FindLaw, Oct. 11, 2006
- Pushing Back on Detainee Act by Michael Ratner is president of the Center for Constitutional Rights, The Nation, October 4, 2006
- Military Commissions Act of 2006
- Why The Military Commissions Act is No Moderate Compromise By MICHAEL C. DORF, FindLaw, Oct. 11, 2006
- The CIA, the MCA, and Detainee Abuse By JOANNE MARINER, FindLaw, November 8, 2006
- Europe's Investigations of the CIA's Crimes By JOANNE MARINER, FindLaw, February 20, 2007
- Nat Hentoff (December 8, 2006). "Bush's War Crimes Cover-up". Village Voice. Archived from the original on 2009-08-13. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.villagevoice.com%2Fnews%2F0650%2Chentoff%2C75255%2C2.html&date=2009-08-13. Retrieved 2007-04-02.
- The John McCain Charade by Robert Kuttner, the Boston Globe, October 1, 2006
- Republican Torture Laws Will Live in History By Larisa Alexandrovna, AlterNet, October 2, 2006.