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Typically, an amnesty is a general pardon from punishment for the commission of a criminal offense. Often, it has been granted to a class of individuals rather than conferred on an individual basis (although see below). The granting of amnesty often involves the foregoing of punishment as a trade-off for other desirable ends. Greenawalt distinguishes a number of dimensions on which amnesties have varied in recent history:[1]
- blanket v. limited -- does it apply to all crimes or a (often less serious) subset, does it distinguish between different levels of responsibility?
- Is amnesty granted automatically or is an application required?
- Is disclosure of the details of the crime required?
- Does the amnesty apply to criminal and/or civil liability?
- Does the amnesty protect from any form of sanction or strictly criminal or civil liability?
Arguments for Amnesties
Mark Amstutz , a professor at Wheaton College, describes South Africa's Truth and Reconciliation Commission and its conditional amnesty provision in particular.
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Granting amnesties can serve as a 'carrot' to bring conflict to a close. In numerous cases, governments have offered, or opposition forces have demanded, amnesty from punishment for actions committed in civil conflict as a precondition to entering into negotiations of a peace accord. In other instances, amnesty provisions may be a precondition for a dictatorial regime to give up power. They may be more willing to go peacefully if they have assurances they will not be targeted for retributive action later. Others argue that amnesties can allow societies to 'wipe the slate clean,' to put the past behind them in favor of the future. For example, in the aftermath of the U.S. Civil War, Presidents Lincoln and Johnson offered amnesties to Confederate soldiers. In El Salvador, the government passed a broad amnesty five days after the UN-sponsored truth commission delivered its report arguing that forgetting the past was necessary for society to move forward. Ultimately, in this view, amnesties can advance reconciliation. The legal system may be in shambles or ill-equipped to deal with the number of crimes that have occurred. Where trials are impossible or infeasible, amnesties may prove necessary to get to the truth about past abuses, which supporters of truth commissions, for example, see as having sizeable healing power for individual victims and society at large.[2]
Arguments against Amnesties
Amnesties have many critics. On a fundamental level, they argue, amnesties are a miscarriage of justice, reinforce impunity and undermine the burgeoning rule of law. In fact, in a number of cases such as Chile and Argentina, military governments provided amnesty to themselves as a means of protection in advance of transitions to democracy. Amnesties are problematic in part because they eliminate the potential of legal redress for victims. What is more, letting perpetrators of gross human rights violations go free is not the way to begin (re)building an effective judicial system.
Contrary to claims that amnesties advance reconciliation, they have often not ended demands for transitional justice. Efforts on the part of victims and civil society to prosecute offenders continue in many countries where amnesties have been put in place.[3] They have pursued a range of legal means to try to get around existing amnesty laws. It has increasingly been argued that amnesties are contrary to international legal obligations with respect to a variety of human rights accords.[4] Appeals have been made to international bodies, such as the Inter-American Commission on Human Rights, which ruled that amnesties violate obligations under the American Convention on Human Rights. The ruling has generally not changed the minds of domestic courts, but it sometimes has led states to recognize victims' right to reparations.[5] Contrary to the arguments of international human rights experts, domestic courts have often ruled that domestic law (i.e. the amnesty) precedes international law. However, courts have recently begun to assert the right to investigate potential crimes before determining whether it falls within the amnesty - therefore information some crimes has come out.[6] Legal maneuvers have also put cracks in amnesties in a number of countries. Amnesties in the Southern Cone, for example, did not cover the crime of kidnapping, so some suits have been brought where children were taken from political prisoners and given to families loyal to the military to be raised as their own. Domestic courts have also ruled that disappearances are an ongoing crime because the body has never been found and, therefore, are beyond the timeframe of some amnesty laws.
South Africa provides an innovative example where amnesty has been individualized rather than granted to entire classes of people. The Truth and Reconciliation Commission there was given the power to grant amnesty to individuals.[7] In order to be eligible for amnesty, the individual had to make a full disclosure of the crime(s) they were involved in (which was corroborated with other testimony and evidence) and demonstrate that the crime was committed for a political purpose. Despite what may appear to be fuzzy criteria, only a small percentage of the thousands that applied for amnesty received it.
[1] Greenawalt, K. (2000). Amnesty's Justice. Truth v. Justice: The Morality of Truth Commissions. R. I. Rotberg and D. Thompson. Princeton, Princeton University Press: p. 195.
[2] Greenawalt, K. (2000). Amnesty's Justice. Truth v. Justice: The Morality of Truth Commissions. R. I. Rotberg and D. Thompson. Princeton, Princeton University Press: 189-210.
[3] Popkin, M. L. and N. Bhuta (1999). "Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?" Ethics & international affairs 13: 99.
[4] Kokott, J. (1993). "No impunity for human rights violations in the Americas." Human rights law journal 14(5-6): 153.; Pasqualucci, J. M. (1994). "The Whole Truth and Nothing But the Truth: Truth Commissions, Impunity and the Inter-American Human Rights System." Boston University International Law Journal: 321+. Shey, P. A., D. Shelton, et al. (1998). "Addressing Human Rights Abuses: Truth Commissions and the Value of Amnesty." Whittier Law Review 19(2): 325-347.
[5] Popkin, M. L. and N. Bhuta (1999). "Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?" Ethics & international affairs 13: 99.
[6] Roht-Arriaza, N. (1998). "Truth Commissions and Amnesties in Latin America: The Second Generation." Proceedings of the American Society of International Law 92: 313.
[7] See for example Sarkin, J. (2004). Carrots and Sticks: The TRC and the South African Amnesty Process. Antwerpen, Intersentia.
Use the following to cite this article:
Brahm, Eric. "Amnesty." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: March 2005 <http://www.beyondintractability.org/essay/amnesty/>.
Sources of Additional, In-depth Information on this Topic
Additional Explanations of the Underlying Concepts:
Offline (Print) Sources
Roht-Arriaza, Naomi, Peter A. Shey and Dinah Shelton. "Addressing Human Rights Abuses: Truth Commissions and the Value of Amnesty." Whittier Law Review 19:2, 1998.
... In the process of reaching the goal of reconciliation, the goals of justice and redress were largely sacrificed. ... Today there is wide agreement that international law does not permit amnesty to pardon crimes against humanity, including torture, extralegal executions, and disappearances. ... Thus, it is not only a truth commission, but it will also be, in part, a reparations or a redress commission. ... The Inter-American Court has stated that under the American Convention, the state has a legal duty to use the means at its disposal to carry out serious investigation, identify those responsible, impose the appropriate punishment, and ensure the victim adequate compensation. ... These declarations pronounce the same standards: There must be an investigation; prosecution of those accused of serious violations of human rights; specific disallowance of blanket amnesties; and redress and compensation. ... In a recent Spanish case, the judge issued an international arrest warrant for Argentine General Leopoldo Galtieri for the disappearance of several Spanish citizens in Argentina during the dirty war of the Seventies. ...
Greenawalt, Kent. "Amnesty's Justice." In Truth v. Justice: The Morality of Truth Commissions. Edited by Thompson, Dennis and Robert I. Rotberg, eds. Princeton: Princeton University Press, 2000.
In conditions where past abuses were widespread, truth commissions may be more effective because no legal system will be equipped to deal with them all. Granting amnesties for criminals, however, does involve a degree of injustice. Whether it is justified depends on the social context and how the amnesty is structured. Greenawalt contends that those seeking to combine truth commissions with amnesties need to carefully consider how they are structured.
Sarkin, Jeremy. Carrots and Sticks: The TRC and the South African Amnesty Process. Antwerpen: Intersentia, 2004.
The primary focus of this book is the process of dealing with perpetrators, and in particular the work of the Amnesty Committee. While the background to the TRC, its formation, the Human Rights Violations Committee, the Reparations and Rehabilitation Committee and other general issues are considered, it is only done by way of contextualising the way the Amnesty Committee did its work, its powers, its processes, its decisions, its interaction with the rest of the TRC and how this committee contributed to the TRC's overall objectives. The book looks at a sample of representative cases, many well-known ones, to offer an overview of the type and variety of cases that came before the Amnesty Committee. It considers cases both that were chamber matters and public hearings. The illustrative cases were selected to show the complexities of the process, the diversity of cases, the type of acts for which amnesty was sought, the range of groupings from which applications emanated and the extent of political party involvement in atrocities. Where relevant, court cases preceding or following amnesty applications are compared with amnesty applications and decisions, to determine the factual and legal (in)consistencies.
Kokott, Juliane. "No impunity for human rights violations in the Americas." Human rights law journal 14:5-6, 1993.
Discusses the Inter-American Commission on Human Rights decision to declare the amnesty laws in Argentina, Uruguay, and El Salvador as violating international human rights obligations.
Gibson, James L. "Truth, Justice, and Reconciliation: Judging the Fairness of Amnesty in South Africa." American Journal of Political Science 46:3, 2002.
Nations in transition to democratic governance often must address the political atrocities committed under the ancien regime. A common response is some sort of 'truth commission', typically with the power to grant amnesty to those confessing their illicit deeds. Based on a survey of the South African mass public, my purpose here is to investigate judgments of fairness of amnesty. My analysis indicates that justice considerations do indeed influence fairness fairness assessments. Distributive justice matters- providing victims compensation increases perceptions that amnesty is fair. But so too do procedural (voice) and restorative (apologies) justice matter for amnesty judgements. I conclude that the failure of the new regime in in South Africa to satisfy expectations of justice may have serious consequences for the likelihood of succesfully consilidating the democratic transition.
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Examples Illustrating this Topic:
Offline (Print) Sources
Popkin, Margaret and Nehal Bhuta. "Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?." Ethics & international affairs 13, 1999.
Throughout Latin America during the past 15 years, new democratic or postwar governments have faced demands for transitional justice following the end of authoritarian rule or the conclusion of internal armed conflicts. Demands for justice for serious past abuses have often been met by threats of destabilization by the perpetrators and calls for forgiving and forgetting in the name of reconciliation. Although recent developments in and interpretations of international law oblige states to punish those responsible for serious human rights violations, many transitional governments insist that reconciliation requires broad amnesty laws. This essay first reviews basic legal and conceptual issues relating to prosecution of, and grants of amnesty to, those responsible for gross human rights abuses during earlier periods. A comparative examination follows, starting with El Salvador, where the amnesty law constitutes the most comprehensive and successful action to end efforts to address past abuses. The essay then reviews the status of efforts in Argentina, Chile, Honduras, Guatemala, and South Africa, where, despite amnesty laws, civil society and courts have sought to uncover the truth about the past, hold perpetrators accountable, and obtain redress for victims.
Pasqualucci, J. M. "The Whole Truth and Nothing But the Truth: Truth Commissions, Impunity and the Inter-American Human Rights System." Boston University International Law Journal , 1994.
Roht-Arriaza, Naomi. "Truth Commissions and Amnesties in Latin America: The Second Generation." Proceedings of the American Society of International Law 92, 1998.
Looks at amnesties in comparative perspective. Discusses the interplay of international legal obligations and domestic law, as embodied in part by amnesties.
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