reparation due to the victims and their families.” Thus, according to the agreement
reached by the parties, the route proposed by the Truth Commission, whose
recommendations the parties had undertaken to comply with, was that of justice and
reparation with regard to the cases it handled. This was consistent with the spirit and
letter of what the parties had negotiated and specified in the Peace Accord.
Nevertheless, within days of the publication of the Truth Commission’s report, the
General Amnesty Law was enacted with a very different purpose.
16.
A context such as the one outlined here – and that is described in more detail in the
judgment – is different from the one that preceded the other amnesty laws to which the
Court’s case law has referred. Thus, as previously indicated, the Court’s analysis and
reasoning has characteristics that led it to incorporate elements of international
humanitarian law elements to produce an interpretation that harmonized with the
obligations established in the American Convention, in order to make a juridical
assessment of amnesty in a context such as this one.
17.
There is no norm in positive international law that has explicitly prescribed any kind
of amnesty. The only explicit mention of amnesty in a multilateral treaty is contained in
article 6(5) of Protocol II Additional to the Geneva Conventions of August 12, 1949. 14 In
the commentaries to that article, the International Committee of the Red Cross (ICRC)
indicated that its purpose “[…] is to encourage a gesture of reconciliation that will help
restore the normal course of life in a people that has been divided.”15 According to the
Proceedings of the Diplomatic Conference in which Additional Protocol II was adopted in
1977,16 the meaning of that norm was to grant immunity to those detained or punished
for involvement in the armed conflict.
18.
Pursuant to the foregoing, in this judgment, the Court has indicated that, even
though amnesties may be permitted as a component of the ending of a non-international
armed conflict, they have a limit which is in relation to war crimes and crimes against
humanity, so that these crimes cannot remain unpunished or be forgotten (see
paragraphs 285 and 286 of the judgment). These limits are also found in what some call
“sources implicitly related to amnesty.”17
19.
Moreover, within the United Nations it has been stated "that peace agreements
approved by the United Nations can never promise amnesties for genocide, war crimes,
crimes against humanity or gross violations of human rights."18 For its part, the Rome
Statute of the International Criminal Court, although applicable only to crimes falling
within its competence and jurisdiction, entails the obligation of the States parties to hold
14
Article 6(5) of Protocol II, establishes that “at the end of hostilities, the authorities in power shall
endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those
deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”
15
ICRC. Comments to the Protocol of June 8, 1997, additional to the Geneva Convention of August 12,
1949, relating to the protection of victims of non-international armed conflict. Colombia. 1998. Page 168.
16
Proceedings of the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977). Volume 9. Geneva, Switzerland.
17
Freeman, Mark. Necessary Evils. Amnesties and the Search for Justice. Cambridge University Press. 2009.
Page 36. It underscores Article I of the Convention on the Prevention and Punishment of the Crime of Genocide of
1948, certain regulations contained in the Geneva Conventions and Protocol I on international conflicts, Article 7 of
the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (1984); Article 6 of the
Convention to Prevent and Punish Torture 1985; Article IV of the Inter-American Convention on Forced
Disappearance of Persons,1994, and the International Convention for the Protection of All Persons from Enforced
Disappearances, 2006.
18
Report of the Secretary-General on the rule of law and transitional justice in societies experiencing or
emerging from conflict. U.N. Doc S/2004/616. 3 August 2004. para. 10.
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