3
8.
The impunity that amnesty laws imply should be limited as much as possible,
so that they are able to achieve their legitimate objectives without this diminishing
or undermining respect for human rights, whose violation cannot be regarded as a
legitimate recourse in civil strife. Amnesty laws have to strike a complex and
delicate balance between the struggle against impunity and the goal of promoting
national reconciliation (cf. Progress report on the question of the impunity of
perpetrators of human rights violations, prepared by Mr. Guissé and Mr. Joinet,
pursuant to Sub-Commission resolution 1992/23. E/CN.4/Sub.2/1993/6, para. 1).
Recent studies on the subject have found that international law does not allow
criminal exoneration when grievous human rights violations are involved (cf. Ambos,
Kai, Impunidad y Derecho penal internacional. Trad. Marcela Anzola Gil. Biblioteca
Jurídica Diké, Medellín, Colombia, 1997, p. 284).
The Vienna Declaration and Programme of Action, approved by the Second World
Conference on Human Rights on July 25, 1993, pointed out that the Conference
viewed “with concern the issue of the impunity of perpetrators of human rights
violations” and therefore supported “the efforts of the Commission on Human Rights
and the Sub-Commission on Prevention of Discrimination and Protection of Minorities
to examine all aspects of the issue” (Vienna Declaration and Programme of Action,
A/CONF:157/23, para. 91), one of which is analysis of the various modalities or
categories that can be established in body of amnesty laws promulgated in recent
years.
9.
Amnesty laws are frequently portrayed, generically, as measures to help
restore peace or ease the transition to peace.
To shed light on this issue,
distinctions can and should be made among amnesty laws taking the following
relevant factors into account:
the circumstances under which they were
promulgated, the means by which they were adopted, and their efficacy.
Accordingly, a distinction must be made between the so-called “self-amnesty laws”
promulgated by and for those in power, and amnesties that are the result of a peace
process, with a democratic base and reasonable in scope, that preclude prosecution
for acts or behaviors of members of rival factions but leave open the possibility of
punishment for the kind of very egregious acts that no faction either approves or
views as appropriate. Self-amnesty laws have been severely criticized (cf. for
example, Norris, Robert E., Leyes de impunidad y los derechos humanos en las
Américas. Una respuesta legal, in “Revista IIDH”, No. 15, January-June 1992, esp.
pp. 109 et seq.)
10.
In the principles proposed in the annex to the Revised Final Report on the
question of the impunity of perpetrators of human rights violations (civil and political
rights), which Mr. Louis Joinet prepared on instructions from the Sub-Commission on
Prevention of Discrimination and Protection of Minorities of the United Nations
Commission on Human Rights, the following is stated: “Even when intended to
establish conditions conducive to a peace agreement or to foster national
reconciliation, amnesty and other measures of clemency shall be kept within ….
limits.” One such limit is the following: “The perpetrators of serious crimes under
international law may not benefit from such measures until such time as the State
has met the obligations” that it has “to investigate violations, to take appropriate
measures in respect of the perpetrators, particularly in the area of justice, by
ensuring
that
they
are
prosecuted,
tried
and
duly
punished
(…)”
(E/CN/Sub.2/1997/20/Rev.1, Annex II, principles 18 and 25).
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