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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