Amnesty

 

By
Eric Brahm

March 2005
 

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.

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 Information Consortium, University of Colorado, Boulder. Posted: March 2005 <http://www.beyondintractability.org/essay/amnesty>.


Additional Resources