Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes

Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights.  The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities.  Latin America exemplified this trend in the 1980s, while also popularizing truth commissions.  The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties.   Recognition of individual rights chipped away at absolute state sovereignty by building recognition of the state duty to investigate, prosecute, and punish those responsible for serious violations of human rights.  In addition, the end of the Cold War saw a new reliance on international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945.  Jurisprudence emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states.

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Former Peruvian President Alberto Fujimori Sentenced to 25 Years for Human Rights Abuses

Today, the Peruvian Supreme Criminal Court convicted former Peruvian President Alberto Fujimori (1990-2000) of human rights abuses and sentenced him to 25 years in prison.  An historic sentence, this ruling represents one of the few times that a wholly domestic court has tried a former president for international crimes.  In particular, the Peruvian state convicted Fujimori for ordering the massacres at Barrios Altos (the extrajudicial execution of twelve people at a local party in 1991) and La Cantuta  (the extrajudicial execution of eight students and a professor in 1992), as well as the kidnapping of journalist Gustavo Gorriti and businessman Samuel Dyer. 

Relying on the criminal liability theory of “command responsibility,” the prosecutor provided evidence that the hierarchal chain of command led directly to Fujimori.  Notably, the court found that the systematic and general policy of violent and repressive means of fighting a “war against terror” made these crimes rise to the level of “crimes against humanity.”   Lawyers for the victims later pointed out to reporters that international law currently recognizes that perpetrators of this category of crime can never receive an amnesty or pardon.

As I watched the live coverage of the hearing online, I wondered what Fujimori was thinking.  For the entire duration of the sentencing (which lasted all morning), he vigorously scribbled notes on his notepad and did not look up even once.   Did he grasp the gravity of his acts?  Or did he still believe they were justified as part of his campaign against terrorists?  I suspect that when Fujimori stumbled on the Peruvian political scene almost two decades ago, he never could have imagined he would make history in this way.

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Rule of Law in Iraq and Afghanistan: Building a “Culture of Rules” From the Bottom Up

On March 27, President Barack Obama addressed the nation regarding his proposed “Development, Diplomacy and Defense” approach to addressing the “increasingly perilous” threat of Al Qaeda.  Although his plan includes increased military presence in Afghanistan, he also emphasized the importance of developing the institutional infrastructure from the “bottom up” so that local actors will invest in the economic, political, and legal reforms of their nation.

As I listened to Obama on NPR, I noted how he referred to many of the same concepts and issues I teach in “Comparative Study of Transitional Justice.”  This course exposes students to different case studies of how countries have tackled the arduous task of transitioning from conflict and repression to peace and stability.  In particular, we have discussed the use of truth commissions and criminal trials as mechanisms used by nations like Peru, Chile, and South Africa, among others, to address past legacies of human rights violations. Often these measures seek to promote both reconciliation and the rule of law.

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