71
“[t]he amnesties that exempt from criminal sanction those responsible for atrocious crimes in the
hope of securing peace have often failed to achieve their aim and have instead emboldened their
beneficiaries to commit further crimes. Conversely, peace agreements have been reached without
amnesty provisions in some situations where amnesty had been said to be a necessary condition
241
of peace and where many had feared that indictments would prolong the conflict.”
200. In line with the aforementioned, the Special Rapporteur of the United Nations
on the issue of impunity, stated that:
“[t]he perpetrators of the violations cannot benefit from the amnesty while the victims are unable
to obtain justice by means of an effective remedy. This would lack legal effect in regard to the
242
actions of the victims relating to the right to reparation.”
201. The General Assembly of the United Nations established in Article 18 of the
Declaration on the Protection of all Persons from Enforced Disappearance that
“persons who have or are alleged to have committed [enforced disappearance] shall
not benefit from any special amnesty law or similar measures that might have the
effect of exempting them from any criminal proceedings or sanction.” 243
202. The World Conference on Human Rights which took place in Vienna in 1993,
in its Declaration and Program of Action, emphasized that States “should derogate
legislation that favors the impunity of those responsible for serious human rights
violations, […] punish the violations,” highlighting that in those cases States are
obligated first to prevent them, and once they have occurred, to prosecute the
perpetrators of the facts. 244
203. The Working Group on Enforced or Involuntary Disappearances of the United
Nations has handled, on various occasions, the matter of amnesties in cases of
enforced disappearances. In its General Comments regarding Article 18 of the
Declaration on the Protection of All Persons Against Enforced Disappearance, it noted
that it considers amnesty laws to be contrary to the provisions of the Declaration,
even when it has been approved in referendum or by another similar type of
consultation process, if directly or indirectly, due to its application or implementation,
it terminates the State’s obligation to investigate, prosecute, and punish those
responsible for the disappearances, if it hides the names of those who perpetrated
said acts, or if it exonerates them. 245
241
Cf. Office of the High Commissioner of the United Nations. Instruments of the rule of law in
societies that have emerged from conflict, supra note 207, page V.
242
Revised final report on the issue of impunity for perpetrators of human rights violations
(civil and political rights) prepared by Mr. Louis Joinet pursuant to decision 1996/119 of the SubCommission on
Prevention
of
Discrimination and Protection
of Minorities. U.N. DocE/CN.4/Sub.2/1997/20/Rev1 of October 2, 1997, para. 32.
243
Cf. United Nations, General Assembly, Resolution 47/133 of December 18, 1992.
244
World
Conference
on Human Rights,
Declaration and Programme of
Action. U.N. Doc A/CONF.157/23, 12 July 1993, Action Program, paras. 60 and 62.
245
Cf. Working Group on Enforced or Involuntary Disappearance of the United Nations. General
Comment on Article 18 of the Declaration for the protection of all persons against enforced
disappearances. Report presented in the 62º period of sessions of the Human Rights Commission. U.N.
Doc. E/CN.4/2006/56, of December 27, 2005, para. 2, sections a, c and d.
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