Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes
71 Pages Posted: 31 Oct 2008 Last revised: 3 Jan 2014
Date Written: October 29, 2008
Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights. Politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities. Latin America exemplified this trend in the 1980s, while also popularizing truth commissions. The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties. Currently, scholars now acknowledge that to be legitimate, amnesties must conform to legal norms thus creating a standard of 'qualified amnesties' for certain enumerated international crimes. Yet, this discourse suggests that it is still possible for nations to resort to amnesties for other serious human rights violations during political transitions. This article responds to an apparent gap in the scholarly literature that fails to fully merge the fields of human rights law and international criminal law, a step that would resolve the current debate as to whether any amnesty in transitional justice settings is lawful. Specifically, it discusses the Barrios Altos case, a seminal decision issued by the Inter-American Court of Human Rights in 2001, that declared the amnesty laws promulgated in 1995 by former Peruvian president Alberto Fujimori to be contrary to international law. Recent scholarship has ignored this decision, or otherwise interpreted it overly narrowly, despite its potentially sweeping impact on the field of transitional justice. Thus, this article responds by offering a more in-depth understanding of the Barrios Altos decision in order to inform the ongoing academic debates on the evolving doctrine on amnesty in transitional justice schemes. It also shares the particular case study of Peru to show how international law directly impacts national transitional justice experiences. This article suggests that the truth v. justice dilemma may no longer exist: instead, criminal justice must be done.
Keywords: human rights, transitional justice, truth commissions, amnesty, international criminal law, Barrios Altos
JEL Classification: K14, K33
Suggested Citation: Suggested Citation