4.
It is common knowledge that there are different types of amnesty, 1 “granted”
under the pretext of achieving “national reconciliation” through the revelation of the
“truth” (under the terms of the amnesty in question) and forgiveness; these
pretexts, in practice have been individually or collectively used by some States. 2
However, forgiveness cannot be imposed by a decree law or otherwise; instead, it
can only be granted spontaneously by the victims themselves. And, in order to do so,
they have sought justice. In this regard, the Court recalls in this Judgment that,
when releasing to the public, on March 4, 1993, the final Report of the Comisión
Nacional de Verdad y Reconciliación (National Truth and Reconciliation Commission)
(of February 8, 1991), the President of Chile then incumbent, Mr. Patricio Aylwin,
apologized to the victims’ next of kin, on behalf of the State (and the nation) as
follows:
“When those who caused so much suffering were officials of the State and the
relevant government authorities could not or did not know how to prevent or punish
them, nor was there the necessary social reaction to avert it, both the State and society
as a whole are responsible, whether by act or by omission. It is the Chilean society who
is in debt to the victims of human rights violations. (...) Therefore, in my capacity as
President of the Republic, I dare to speak for the entire nation and, in its name,
3
apologize to the next of kin of the victims.”
5.
Over the past years, research has been conducted on the different types of
amnesty; however, there is no need to discuss this aspect further here.
Notwithstanding, given the circumstances surrounding the cas d'espèce, it is relevant
to focus on a specific type of amnesty: the so-called “self-amnesty,” which seeks to
shelter those responsible for gross human rights violation from justice, thus
promoting impunity. To start with, it is important to remember that true laws may
not be arbitrary; they do not bear the name of those who hold themselves above
them. They have some level of abstraction, essential to the operation of law. They
embody principles, which form and inform them, and are apprehended by human
reason, i.e. the recta ratio, and give them a life of their own. They give expression to
everlasting values. As pointed out in a famous study of statutory construction,
“Laws remain identical to themselves, while the ever-changing course of history
4
and life flows beneath them.”
1
.
Cf.
e.g.
L.
Joinet
(rapporteur),
“Study
on
Amnesty
Laws,”
document
No.
E/CN.4/Sub.2/1985/16/Rev.1, Geneva, UN Subcommission on the Prevention of Discrimination and
Protection of Minorities, 1985, pp. 1-22; J. Gavron, “Amnesties in the Light of Developments in
International Law and the Establishment of the International Criminal Court,” 51 International and
Comparative Law Quarterly (2002) pp. 91-117.
2
.
A. O'Shea, Amnesty for Crime in International Law and Practice, The Hague, Kluwer, 2004, p. 23,
and cf. pp. 25-33.
3
.
Cit. in para. 81(26) of this Judgment. P. Aylwin-Azocar, “La Comisión de la Verdad y
Reconciliación de Chile” (National Truth and Reconciliation Commission of Chile), in Estudios Básicos de
Derechos Humanos - II (eds. A.A. Cançado-Trindade and L. González-Volio), San José de Costa Rica,
IIDH, 1995, pp. 105-119.
4
.
S. Soler, La Interpretación de la Ley, Barcelona, Publ. Ariel, 1962, p. 108, and cf. pp. 15, 115,
117, and 143.