(2) Amnesties and National Prosecutions

Question 1

When were amnesties enacted in SA?

Answer 1

during dictatorial rule and political transitions from dictatorship in SA during 80s

Question 2

What was the outcome of the challenging by victims and civil society groups to use of amnesties on basis of international human rights law before the Inter-American Court of HR

Answer 2

limited the scope of amnesty laws by domestic courts to excl certain crimes etc, cases then reopened

Question 3

3 phases of the use of amnesties in SA

Answer 3

1) 70s: amnesties granted to political prisoners imprisoned by dictatorial regime and those in exile (demanded by HR activists)
2) other side of coin: amnesties granted to those for grave HR violations (self-granted to avoid imprisonment)
3) survivors then challenged amnesty laws granted for grave violations of HR

Question 4

What was held by the IACHR re compatability of amnesties with American Convention on HR in Barrios Altos v Peru (2001)?

Answer 4

held certain inadmissible bc they violated certain HRs –> amnesties intended to prevent investigation and punishment of perpetrators of serious HR violations

Question 5

What was held by the IACHR re compatability of amnesties with American Convention on HR in Velasquez-Rodriguez v Honduras (1988)?

Answer 5

held amnesties weren’t compatible with HR
State has a legal duty to take reasonable steps to prevent HR violations and use means necessary to investigate HR violations committed within its jurisdiction

Question 6

There is a regional trend in SA to:

Answer 6

narrow/annul or completely reject amnesty for international crimes and gross HR violations

Question 7

The Inter-American Court of HR has rejected what type of amnesties:

Answer 7

unconditional amnesties!
- held that parties to the American Convention on HR prohibited to enact broad/unconditional amnesties for intl crimes and gross HR violations
- permits limited amnesties w a narrow scope
- willingness to distinguish btw amnestis enacted during/after dictatorships and those adopted in transitions from armed conflicts

Question 8

What does Miller say about the trend in SA to reject broad amnesties?

Answer 8

this wasn’t a global trend
- arguably there’s been regional overreach by international institutions in their pursuit of accountability
- nevertheless reversing amnesty laws facilitates national healing and reconciliation

Question 9

amnesties initially implemented to

Answer 9

to foster reconciliation and avoid retribution

Question 10

are amnesty laws national or international laws?

Answer 10

national laws

Question 11

What are some different forms of amnesties?

Answer 11

broad, narrow, conditional unconditional etc

Question 12

What are the 5 principles of prescriptive jurisdiction?

Answer 12

1) territoriality principle (jurisdiction based on where act committed)
2) active personality principle (natoinality of perpetrator dtermines jurisdiction as can have jurisdiction over own nationals)
3) passive personality principle (exercise of jurisdiction if someone commits crime against victim with the nationality of the state)
4) protective principle (state can exercise J if poses threat to vital state interest ie, falsification of passports currency)
5) universal jurisdiction - due to nature of crime, such a gross violation that they can prosecute regardless of where committed/nationalities)

Question 13

What crimes does the universal jurisdiction principle apply to?

Answer 13

o Piracy, a crime outside the jurisdiction of any State
o Genocide
o Crimes against Humanity
o Torture
o Grave breaches of the Geneva Conventions of 1949

Question 14

Amnesties represent what

Answer 14

form of political compromise to bring about peace and stability, while international justice seeks to hold individuals accountable for serious international crimes.

Question 15

what is strategic litigation

Answer 15

using legal action to achieve a specific strategic goal, such as securing accountability for perpetrators of international crimes.

Question 16

Is there a distinction in South America between amnesties from transitions from dictatorship and transitions from conflict?

Answer 16

Yes
* dictatorships - amnesties outright rejected for intl crimes adn violations occuring during these transitions

Question 17

Facts in Barrios Altos v Peru (2001) IACHR

Answer 17

• 1991 massacre of 15 civilians during one single incident by members of the Peruvian army, + subsequent attempt by the Fujimori regime to pass amnesty laws to shield the perpetrators from prosecution.
• judicial authorities couldn’t investigate until 1995 due to amnesty to all member of security forces subject to complaint/investigation etc –> investigations had revealed compromising info
• The Court found the State violated the Inter- American Convention on Human Rights.

Question 18

What was held in Barrios Altos case: ’The Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because

Answer 18

they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.’

Question 19

In what 3 ways did the amnesty laws of Peru breach the IACHR in Barrios Altos v Peru

Answer 19

• Art 8(1): prevented the victims’ next of kin and the surviving victims in this case from being heard by a judge
• Art 25: violated right to judicial protection
• Art (1): prevented investigation punishment
• Art 2: had laws incompatible with the Convention itself

Question 20

What sort of duty do states have wrt human rights violations (Velasquez-Rodriguez v Honduras)

Answer 20

legal duty to
1. * take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction,
1. * to identify those responsible,
1. * to impose the appropriate punishment and
1. * to ensure the victim adequate compensation.’

Question 21

According to the IACtHR’s jurisprudence States parties to the American Convention on Human Rights are prohibited:

Answer 21

• to enact broad, unconditional amnesties for international crimes and gross human rights violations such as torture, crimes against humanity and enforced disappearance

Question 22

Does the IACtHR reject all forms of amnesties?

Answer 22

not a complete rejection!
* case law suggests narrow scope (excl. gross HR vilations and intl crimes) may be permissible

Question 23

IACtHR more or less lenient w amnesties enaced during or after dictatorships vs in transition from armed conflicts

Answer 23

• dictatorship - less lenient
• armed conflicts - more lenient

Question 24

Due to states having an obligation to prosecute for grave breaches of the GC and under the Torture Convention and GEnocide Convention what does this suggest about amnesties and compatibility with IL?

Answer 24

amnesties cannot be extended to such crimes - would conflict with states obligations to prosecute!

Question 25

What was said in Prosecutor v Anto Furundzija re torture and amnesties

Answer 25

prohibition of torture operates to de-legitimise any legislative, adminsitrative or judicial act authorising torture - to have any such amnesties or laws permitting this, would breach international treaty provisioms and not accord