Amnesties for Arab leaders: A stable solution? – Lessons from South America

Amnesties for Arab leaders: A stable solution? – Lessons from South America

As regimes in North Africa and the Middle East falter, we are left to wonder what happens with the elites that are washed away by the Arab Spring. A common instrument to facilitate political transition is the implementation of amnesty laws. Saudi Arabia apparently would have liked to see Mubarak – against whom the trial has recently started –  granted amnesty as al Ahram reported in April and the Gulf states provided Yemen’s President Saleh with an amnesty in their latest – ultimately rejected – transition plan. Amnesty legislation is issued to ensure stability. In order to reach that goal, amnesties assure impunity for the former elites once they cede power. But what happens with amnesty laws once the transition is successfully sealed? Recent developments in South America show how amnesties can develop. The continent has a record of amnesty laws and Latin American countries handled them in various ways. Can the Arab world learn from the South American amnesty experience?

1. Three scenarios for amnesty legislation

Amnesties eased the transition from the military or dictatorial rule that was predominant in Latin America to relatively successful democracies. The way amnesty legislation developed in these countries can be roughly subdivided into three scenarios.

First scenario: years after the implementation of the amnesty law, it was ousted due to legal or political pressure because it did not fulfill the country’s human rights responsibilities. This has been the case in Argentina, where in 2005 the Supreme Court declared the Argentine amnesty laws as unconstitutional, citing, among others, a decision of the Inter-American Court of Human Rights (IACHR), which  advocated for the non-application of the laws. This development forbids former state agents acused of human rights abuses to invoke the amnesty law when facing trial.

A second scenario is the advent of a public dispute around the legality of the amnesty. This dispute is fueled by court decisions that criticize the law, ultimately leading to a partial repeal. That is what happened in Uruguay. The IACHR had condemned the country’s amnesty legislation and the Uruguayan Supreme Court had declared it unconstitutional on different occasions – the last time in February 2011. The abrogation of the law under the Uruguayan Constitution needs to be approved by Parliament. However, after the amnesty law was reaffirmed twice by national referendums in 1989 and 2009 the Uruguayan Parliament failed in May 2011 by one vote to overthrow the controversial law. As a result, Uruguayan courts can and will continue to outlaw the amnesty on individual case basis.

The continent’s largest country, Brazil offers the third scenario. Brazil’s amnesty legislation, too, was heavily criticized by the IACHR in a judgment delivered in November 2010; and former president Lula da Silva nearly put an end to the country’s amnesty law at the end of his second term. Nevertheless, after strong antagonism by Brazil’s highest military commanders, Lula abandoned his plans. The country’s Supreme Court ruled in the same mindset: it did not make use of its legal possibilities and declared the law to be a political matter that should be dealt with in parliament. The amnesty law has since then guaranteed impunity for alleged human rights abuses that took place during the 21 years of dictatorial rule  in Brazil (1964-1985).

The scenarios show that South American countries handled their respective amnesty legislation very differently. What South American amnesty laws have in common is that they all have been criticized and some have been ousted by courts. Such judgments that dare to question the legality of an amnesty law reopen the door to public discourse about past crimes and thus undermine what an amnesty law attempts to provide: stability. South America’s amnesty laws therefore proved to be unstable instruments, they did not seal the region’s troubled past and did not succeed at keeping former leaders and their allies out of trouble. Does this mean that all amnesties raise the suspicion of modern courts and that amnesties are not useful instruments to provide stability?

2. Amnesties, stability and Arab countries

The answer is no. Amnesties can under some conditions provide stability and thus be an attractive instrument to ease periods of political transition. The stability of amnesty legislation depends essentially on the degree of impunity that an amnesty law tries to convey. South American amnesties have been criticized by courts due to one fact: they have been found to practically hinder the investigation of alleged human rights abuses by state agents such as military and police forces. These “Blanket Amnesties” prevent access to justice and preclude the obligation existing under the American Convention on Human Rights to investigate and penalize serious human rights abuses. The UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity indicates furthermore that it is a global trend in international law to prevent amnesties from granting impunity for the most serious crimes.

Countries like Bosnia and Herzegovina or Croatia on the other hand, implemented amnesties that offer only a limited degree of impunity. Violations of international humanitarian law such as war crimes, genocide and crimes against humanity fell under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia. These kinds of limited amnesties are likely to overcome the challenge of time and future court decisions and are thus more stable.

However, limited amnesties will not be very attractive for those Arab elites who are faltering at the moment particularly because they don’t grant impunity for human rights abuses. Such crimes have been reported from all countries in question. The situation of Libya’s Muammar Al-Gaddafi is emblematic in this context: an amnesty for him that is in line with international law is unlikely as the International Criminal Court currently assesses an arrest warrant issued by the courts prosecutor Luis Moreno-Ocampo.

The alternative is to embark on the path that South American countries took as they transformed to democracies. Regardless of whether Blanket Amnesties are morally desirable or in conformity with international law, they are a political possibility and a reality. They can even be vested with a certain degree of national legitimacy, if they have been put into force by a democratically elected legislative body – which was the case in Argentina or Uruguay.

Not all of the South American scenarios seem to be likely visions of an Arab future. The Argentinian experience could be repeated in those Arab countries that choose to follow the path of democracy and respect for International Law. The Brazilian way is an option in countries where elites exist that have the authority to hold an amnesty in place even after the transition. The Uruguayan scenario, on the other hand, seems less likely to be repeated in the Arab world given the popularity of the uprisings.

3. Conclusion

Considered as a whole, it appears that limited amnesties would be stable but not very welcomed by Arab elites. Blanket Amnesties, conversely, are unstable because they are likely to be challenged for conveying impunity for alleged human rights abuses. The only alternatives, to these either unstable or incomplete amnesties, that guarantee impunity are exile or simply not losing power in the first place. Tunisia’s Ben Ali opted for exile. Gaddafi opted for the fight.

It has been rightly highlighted by experts such as Nikolas Gvosdev or Stephen Walt that dictators like Gaddafi may be learning the “wrong lesson” from Mubarak’s incarceration. The fact that Blanket Amnesties prove to be unstable instruments in the 21st century could be interpreted in the same way. It could lead elites not to give up power in change for an amnesty. This, however, is a negative side effect of a greater goal that needs to be achieved: the universal respect for basic human rights. Ultimately the instability of Blanket Amnesties is a victory for the respect of human rights. No strongman shall believe in amnesty for past human rights abuses as a stable option.

Leonard Ghione

Bibliography

Alcalá, Humberto Nogueira, Decreto Ley de Amnisía 2.191 de 1978 y su Armonisación con el Derecho Internacional de los Derechos Humanos, Revista de Derecho Vol. XVIII – N° 2 – Diciembre 2005

Burke-White, William, “Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation,” 42 Harv. Int’l L.J. (2001)

Jacobson, Douglas, A Break with the past or Justice in Pieces: Divergent Paths on the Question of Amnesty in Argentina and Colombia

Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace (2009) available at: http://www.unhcr.org/refworld/docid/4a52fd692.html [accessed 5 June 2011]

Sikkink, Kathryn & Booth Walling, Carrie, The Impact of Human Rights Trials in Latin America 44 Journal of Peace Research (2007)

Avatar