Transitional justice is not just a topic in the southern part of the planet. International wars and internal conflicts, dictatorships of all sides of the ideological spectrum, autocracies and disruptions to democracy have been frequent visitors to almost all societies in the world. In the aftermath, all these societies have faced difficult situations and great dilemmas when it is time to rebuild their present, plan their future and face the past.
In one of the more humanizing deeds of the last century, international human rights law and the law of armed conflict took on the baton of justice in the name of the international community. The struggle against impunity became the motto of political transitions. Yes to peace, but a forceful no to impunity. As thousands of victims have demanded in every region of the world: for grave human rights violations, there is no forgiving or forgetting.
Along side these demands, an international law that was less permissive of atrocities was built. Human rights courts began to put limits on the previously broad powers of the States, and international criminal law took flight with the International Criminal Court in The Hague as its torchbearer.
Despite the unquestionably ethical basis of the process, the flag of justice and struggle against impunity has also generated ethical and practical dilemmas for these societies. One of them has been the question of how to address impunity without responding with vengeful justice, so obsessed with punishment that it can sweep away all the guarantees that protect individuals from the punitive power of the State.
On the other hand, at a more practical level, those who build peace worry that international law has gone too far and has left society without the tools to negotiate peace. You cannot progress much in a political negotiation if all a society can offer an armed opposition is jail time. Negotiators say this makes it impossible to negotiate demobilization and to reach peace agreements.
Amnesties have been one of the most controversial topics. “They are expressly prohibited,” some say. “They are only prohibited for certain crimes,” others say. There are also those who point out that what matters is to establish certain conditions that make them more limited.
Recently, a document was published that tries to help move these discussions forward. Called the “The Belfast Guidelines on Amnesty and Accountability,” it was drafted and adopted by a group of social scientist and jurists of various nationalities “to assist all those seeking to make or evaluate decisions on amnesties and accountability in the midst or in the wake of conflict or repression.”
The Guidelines focus on important topics like:
- Discussing the legal status of amnesties in international law and presenting the obligations governments should consider
- Presenting certain types of amnesties and the positive role they can play within transitional justice schemes
- Analyzing how some judicial processes and amnesties can be linked together in comprehensive accountability processes
- Presenting intervention guides to solve practical problems in the implementation of amnesties like forms of adoption, legal effects, nullification of benefits for failure to comply, among others
Undoubtedly, the Guidelines are part of a valuable, although polemic, process.Valuable because they provide a detailed judicial explanation of the legal sources from with the obligations of the state to promote justice in the face of grave human rights violations originate. Polemic because it recognizes that amnesties happen, as they in fact do, and that they should not necessarily be extinguished.
Taking the idea highlighted by Mark Freeman, who smartly titled his book“Amnesties, necessary evils,” the Belfast Guidelines, more than being against amnesties, are concerned with providing public policy tools to guarantee accountability in the implementation of certain amnesties. They present viable alternatives and paths to be explored by each society, while trying to find the difficult balance required in implementing justice that is sensitive to the needs of peace and reconciliation.
Obviously, the Guidelines will be the object of criticism. In my personal opinion, the Guidelines could have been clearer in establishing the existence of a State’s obligation to punish the gravest human rights violations under international law, which does not mean that these are absolute and cannot be made compatible with other needs like peace.
In any case, these critiques are already one of the Guidelines achievements, since they promote a reasonable discussion about a difficult topic at a global level. Amnesties and other dilemmas of how to obtain justice in times of transitions are far from being a concern of only a few violent countries in the Global South, and unfortunately, they are far from being a topic of the past.
*Nelson Camilo Sánchez is a researcher at the Center for Law, Justice and Society (Dejusticia)