Monday, January 17, 2011

Latin American Amnesty Laws Annulled; the Struggle Against Impunity Continues

On the 22nd of December 2010, Former Argentinean President Jorge Rafael Videla was sentenced to life imprisonment by the Federal Oral Court No.1 of Cordoba, Argentina. He was found guilty on 29 accounts of murder, 32 accounts of torture aggravated by the condition of political persecution of the victim and 1 account of torture followed by death. [1]
These crimes were committed during the years of his dictatorship which later came to be known as ‘the dirty war’ period (1976-1983).
In April 1985, General Videla was sentenced to life imprisonment for crimes of assassination, illegal confinement and torture. However, after serving just five years of his sentence General Videla and many high ranking members of the military junta were granted a Pardon by President Carlos Menem in 1990. General Videla was subsequently released from prison.
In 2005, the Argentinean Supreme Court declared that the Amnesty law – ‘Ley de Punto Final' ; Ley 23.492 and the Due Obedience Law- ‘Ley de Obediencia debida’; Ley 23.521 are unconstitutional and are therefore invalid. In 2007, a Federal Court deemed the Pardon given to Videla to be unconstitutional as well. This historic decision opened up new possibilities for new charges since General Videla had only been tried for crimes that were excluded from the Pardon.[2]
Remarkably, only one month prior to the sentencing of General Videla in Argentina, the Uruguayan Supreme Court also formally annulled the Amnesty laws intended to protect members of the armed forces from accusations of violating human rights during the period of military control (1973-1985). The court cited the role of international law in Uruguay’s legal system and precedents from neighboring Argentina as well as those of the Inter-American Court and the Inter-American Commission in reaching its decision. Noteworthy is the Uruguayan public twice rejected a call to overturn the Amnesty law via referendum. In 2009, civil society groups were able to gain the required number of signatures to put the issue on the ballot, but unfortunately it lost narrowly. [3] The Uruguayan Supreme Court acted in accordance with international legal principles even if that meant going against public opinion.

The Amnesty Laws of Peru were annulled after the Inter-American Court of Human Rights determined that it violated the rights to a remedy and to access to justice of the victims in the Barrios Altos Case. This case involved a massacre of fifteen people in 1991. Former Peruvian President Alberto Fujimori stood trial for this massacre among many other crimes in 2008. President Fujimori fled to Japan after his government collapsed but later traveled to Chile where he was arrested and extradited back to Peru to stand trial in 2007.[4] On 7th of April 2009, Alberto Fujimori was convicted of human rights crimes and sentenced to 25 years in prison. It was the first time a democratically elected Latin American President was found guilty in his own country of committing international crimes. [5]

In Chile, Amnesty Laws have not been formally annulled but a number of judges have held that Amnesties cannot be applied in cases of human rights violations since it breaches international law.

These recent Court decisions demonstrate a dramatic change in Latin American legal culture.
In the past, Judges were not expected to defend- let alone- expand citizen’s rights but to quietly preserve the status quo through formalist interpretations.[6]

What factors contributed to these changes in Latin American legal culture ?

Over the last two decades lower courts all throughout the region began to vigorously ‘attack’ Amnesty laws in search of loopholes, exceptions and interpretations which at times allowed investigations to go forward. Constitutional changes such as in Argentina, gave international treaties superior status over domestic laws. In addition, many attempts to reform the judiciary may also have led to the erosion of Amnesty laws. [7] The decisions of the Inter-American Commission criticizing Amnesty laws throughout the Americas served as a legal basis for overturning them on a domestic level. The Commission was particularly critical of the inability for victims’ families to use legal remedies in both civil as well as criminal proceedings to find out the fate of loved ones and those who could be held accountable for this. In 2001, The Inter-American Court of Human Rights based in Costa Rica, endorsed the Commission’s approach in the Barrios Altos Case. [8]

The proliferation of transnational legal instruments has ushered in a new era of legal conceptions and practices. The rule of law has become a core point in many political movements and policy making. Activists throughout the region increasingly use courts as a stage for their struggles and a portal through which to import favorable international norms. [9]

However, the country that seems unaffected by these changes in legal culture is Brazil. Unlike Argentina, Chile, Peru and Uruguay, Brazil has not brought to justice those accused of human rights violations committed during the period of military rule (1964-1985). In April 2010, the Brazilian Supreme Federal Court upheld the interpretation that crimes committed by members of the military regime were political acts and therefore covered by Amnesty laws.
The Inter-American Court of Human Rights found that the Brazilian Amnesty Laws that prevent the investigation and sanctioning of human rights violations are incompatible with the American Convention of Human Rights. As a result, they have no legal effect and cannot stand in the way of investigating cases of human rights violations committed during the military regime. [10] The responsibility of how to handle the Inter-American Court’s decision will now be in the hands of the government of newly elected President Dilma Rousseff who took office on January 1st. President Rouseff who is a former resistance fighter who was imprisoned and tortured during the military regime vowed in her political campaign to bring human rights violators from the dictatorship to justice. [11]
Many Latin American legal scholars believe that considering the regional consensus that now exists on this particular issue, amnesties may, in the near future, lose their value even within the domestic context and will at last become a thing of the past.



Footnotes




[1] http://www.trialwatch-ch-org/.


[2] http://www.trialwatch-ch-org/.


[3] http://www.internationallawgirls.com/

[4] Amnesty Laws in Latin America: Devalued Currency? By Naomi Roht Arrazia, http://www.humansecurity.com/

[5] Reuters April 7th 2009;

http://www.reuters.com/article/idUSTRE5363RH20090407


[6] Cultures of Legality, Judicialization and Political Activism in Latin America, Ed. By Couso, Huneeus & Sieder, Cambridge University Press 2010.
[7]Amnesty Laws in Latin America: Devalued Currency? By Naomi Roht Arrazia, http://www.humansecurity.com/

[8]Amnesty Laws in Latin America: Devalued Currency? By Naomi Roht Arrazia, http://www.humansecurity.com/

[9] Cultures of Legality, Judicialization and Political Activism in Latin America, Ed. By Couso, Huneeus & Sieder, Cambridge University Press 2010. p.3.

[10] http://penknifepresslatam.blogspot.com/

[11] http://penknifepresslatam.blogspot.com/

2 comments:

Cornelias said...

While it is completely understandable that Amnesty Laws are abhorrent and against everything good in the world, they serve one purpose; to let dictatorships step down from power.

If dictatorships find that no matter what they do (step down or not), they will be brought to trials even after agreeing to Amnesty Laws, they will no longer see stepping down as an option.

On the contrary, they will strive to keep onto power as long as possible without any regards for any possibility to step down.

That possibility no longer exists with the striking down of the Amnesty Laws.

Legally sound but politically very unwise.

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