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Overcoming Barriers to Justice in the Age of Human Rights Accountability

About the authors

Leigh A. Payne is professor of Sociology and Latin America at the University of Oxford (St

Antony's College). She has written extensively on transitional justice and also has solo authored

a number of books, including Unsettling Accounts: Neither Truth nor Reconciliation in Confessions of State

Violence (Duke University Press, 2008).

Francesca Lessa is postdoctoral researcher at the Latin American Centre and St. Anne’s

College (University of Oxford). She is author of Memory and Transitional Justice in Argentina and

Uruguay: Against Impunity (Palgrave Macmillan 2013) and co-editor of numerous edited volumes,

including Amnesty in the Age of Human Rights Accountability (with Leigh A. Payne, CUP 2012).

Gabriel Pereira is Doctoral Candidate in Politics and Research Assistant at the Department of

Sociology at University of Oxford. He is a human rights practitioner who has worked for local

and national organizations in Argentina and regional human rights organizations in Latin

America.

Acknowledgments

This research received support from the National Science Foundation (Grant No 0961226) and

the Arts and Humanities Research Council (Grant No AH/I500030/1) for the project entitled

‘The Impact of Transitional Justice on Human Rights and Democracy’; from the Oak

Foundation (Grant No OCAY-11-143) for the project ‘Overcoming Amnesty in the Age of

Accountability’; and from the John Fell OUP Research Fund (Grant No 101/552) for the

project ‘Accounting for Amnesty: Justice for Past Atrocity’. Any opinions, findings, conclusions

or recommendations expressed in this study are those of the authors and do not necessarily

reflect the views of the National Science Foundation, Arts and Humanities Research Council,

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Oak Foundation or John Fell OUP Research Fund. The authors would like to acknowledge

support from their fellow team members Alec Albright, Emily Braid, Brooke Coe, Geoff Dancy,

Holly Dunn, Katherine Franzel, Marie-Christine Ghreichi, Daniel Johnson, Hun Joon Kim,

Pierre-Louis Le Goff, Moira Lynch, Cameron Mailhot, Bridget Marchesi, Veronica Michel,

Florencia Montal, Tricia Olsen, Andrew Reiter, Kathryn Sikkink, Farrah Tek, and Marcela

Villarrazo.

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Abstract

Amnesty laws are viewed as a main barrier to justice for past human rights violations. Scholars

and practitioners expected the ‘age of human rights accountability’ to reduce the number or

coverage of amnesty laws that block human rights trials. Based on analysis of an original

database of amnesty laws and trials, this article challenges that outcome. Few discernible patterns

regarding amnesty laws and accountability emerge; human rights trials are nearly as likely in the

absence of amnesty laws or where partial laws in compliance with international standards and

non-compliant blanket amnesty laws exist. Most of the countries that have overcome the

amnesty law barriers to justice are in Latin America. This article thus uses the region to identify

the factors that provide pathways to justice for past human rights violations. It considers policy

recommendations to strengthen those four factors: civil society demand, international pressure,

judicial leadership, and the absence of veto players.

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Introduction

Recent attention to the ‘age of human rights accountability’ suggests that throughout the world

courts have put perpetrators on trial for past abuses bringing justice to victims of atrocity. These

efforts have chipped away at the impunity that once protected perpetrators of human rights

violations. While our research concurs that human rights trials have increased, we remain

cautious regarding the impact of the age of accountability on overcoming barriers to justice. This

article sets out our argument and the evidence supporting it. Understanding the barriers and the

limits to the age of accountability, we nevertheless use our findings to support specific policies

and practices that we have found to increase accountability.

The age of human rights accountability is usually identified with global institutional

transformations of 1998, specifically the creation of the International Criminal Court. Since the

end of World War II and the Nuremberg and Tokyo Trials, the international human rights

system has attempted to replace the traditional practice of amnesty with a new norm of

accountability for human rights violations.1 International conventions – adopted in the second

half of the twentieth century – now obligate state parties to provide redress for victims of torture

and genocide. The UN international criminal tribunals for the former Yugoslavia and Rwanda,

set up in the early 1990s, underscored the international duty to hold perpetrators accountable.

The notion of universal jurisdiction, and its use in the effort to extradite former Chilean dictator

General Augusto Pinochet from the United Kingdom to stand trial in Spain in the late 1990s,

claims that courts in one country can hold foreign perpetrators accountable for crimes against

humanity committed in another country.

An accountability norm has spread throughout the world, producing dramatic and

unprecedented results.2 Although General Pinochet did not in the end stand trial in Spain, he did

face charges in his own country before he died. Other heads of state responsible for human

rights abuses have also faced prosecutions, convictions, and prison sentences, including: former

Peruvian and Uruguayan presidents Alberto Fujimori and Juan María Bordaberry in domestic

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courts;3 former Rwandan Prime Minister Jean Kambanda in the ICTR; former Liberian president

Charles Taylor before the Special Court for Sierra Leone; and Khieu Samphan, the former Head

of State of Democratic Kampuchea at the Extraordinary Chambers in the Courts of Cambodia.4

This tremendous and unprecedented global progress toward accountability would lead to

the expectation that governments and international institutions would hold perpetrators of

atrocities legally responsible for their acts. To do so, they would have to overcome barriers to

justice such as amnesty laws. For some scholars and practitioners, amnesty laws are tantamount

to impunity and therefore a barrier to the promotion of democratic right to redress, rule of law,

and the deterrence of human rights violations.5 They consider such laws out of compliance with

international human rights law; particularly, since the late 1990s, the UN has taken the position

that amnesties that prevent the prosecution of individuals charged with war crimes, genocide,

crimes against humanity and other gross violations of human rights are inconsistent with states

obligations under various widely ratified treaties as well as United Nations policy and may also be

incompatible with emerging principles of customary law. 6 These scholars and practitioners

seemed to expect that prosecutorial innovations such as the creation of the International

Criminal Court with the 1998 Rome Statute and the application of the notion of universal

jurisdiction would stymie the adoption of amnesty laws. And that new and old amnesty laws

would become partial and consistent with international human rights standards, particularly

excluding from the benefits of amnesty perpetrators of genocide, crimes against humanity, and

war crimes.

Some anecdotal evidence suggests that in the age of accountability amnesty laws around

the world have faced challenges from domestic, regional, and international courts, as well as

from mobilized local and international victims, survivors, and human rights organizations. The

Inter-American Court of Human Rights has ruled against amnesty laws in Peru and elsewhere

that block human rights trials. 7 While Chile has not annulled its amnesty law, lawyers

representing victims have found ways to circumvent it to hold perpetrators accountable. Some

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amnesty laws, such as those in Croatia and Guatemala, are partial, complying with international

standards.

Scholars have interpreted this anecdotal evidence differently presenting a range of

expectations regarding the impact on justice of the age of human rights accountability. Kathryn

Sikkink’s notion of a ‘justice cascade’ would appear to suggest that the global spread of

individual criminal accountability for past human rights abuses could wash away earlier patterns

of impunity. Sikkink (2012) has agreed with Louise Mallinder (2012), however, that cascading

human rights trials might paradoxically lead to the increasing adoption of amnesty laws to

protect perpetrators from the higher threat of prosecution.8 Both scholars expect the age of

human rights accountability to influence the type of amnesty laws that countries will adopt,

specifically partial and compliant with international human rights standards in contrast to earlier

blanket amnesty laws.

Mark Freeman (2009) appears to lament the weakening of amnesty laws anticipated by

the age of human rights accountability.9 He sees amnesty laws as ‘necessary evils’ that enable

governments to bring warring factions to the negotiating table and to encourage former

repressive leaders to withdraw from power. They offer a means to safeguard democratic and

peaceful transitions, and establish human rights protections. They may also offer a more humane

way to cope with victim-perpetrators, such as child soldiers. Moreover, Freeman and Max

Pensky (2012) contend, contra Méndez, that amnesty laws are not inconsistent with international

law, particularly article 6(5) of the 1977 Protocol II to the Geneva Conventions.10 These scholars

further argue that the duty to prosecute violations is distinct from a requirement to prosecute

every perpetrator of past abuse or an amnesty ban.

In their seminal article on amnesty laws, Jack Snyder and Leslie Vinjamuri (2003/2004)11

consider amnesties an important tool for fragile governments emerging from authoritarian rule

and civil conflict. Their appeal and utility would suggest that amnesty laws would remain in use

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despite the age of human rights accountability and in contrast to Freeman’s worry about the

difficulty of adopting them.

Olsen et al. (2010) seemed to confirm Snyder and Vinjamuri’s expectation. 12 While

Sikkink’s justice cascade seemed to hold in terms of the increase in trials, these trials had very

little impact on increases or decreases in amnesty laws. They could not confirm either an increase

in amnesty laws in response to trials as Sikkink and Mallinder anticipated. Nor did they find a

decrease in those amnesty laws as Freeman expected. Amnesty laws remained steadily in use,

consistent with Snyder and Vinjamuri expectation.

Despite the proliferation of assumptions about amnesty laws and justice in the age of

human rights accountability – what they do, what they block, and how they have changed over

time – very little empirical analysis has verified the presumed trends and outcomes. Answering

these questions has been the focus of our project. We use our findings to then engage in a

discussion of policy and practices that overcome the barriers to justice in the age of human rights

accountability.

The Research

The data we use is drawn from a study carried out by twenty researchers based at the University

of Oxford and the University of Minnesota from 2010 to 2013. The researchers used a variety of

sources to track data on amnesty laws and human rights trials.13 Using the criteria set out in

Appendix I, the research team identified 63 amnesty laws in 34 transitional countries for analysis.

We found that amnesty laws were unevenly distributed around the world, with the majority in

Latin America (46%), as Table 1 below shows. We further investigated the specific provisions

and beneficiaries of the existing amnesty laws, particularly whether the laws complied with

international human rights standards. By compliance, the researchers considered those laws that

excluded from amnesty benefits perpetrators of war crimes, genocide, and crimes against

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humanity. The researchers located, again, the majority of non-compliant amnesty laws in Latin

America (52%).

The researchers also tracked human rights accountability practices through trials. To

determine the accountability of these trials, in this article we have focused on only those trials

that reached a conclusion in a verdict and excluded ongoing trials or those that were officially

suspended or unofficially shelved. Using a variety of sources, the researchers investigated 1812

trials and found 330 that reached a verdict, or 18 per cent. Of those, 267 reached final guilty

verdicts, 15 per cent of the total number of trials investigated and 81 per cent of those with

verdicts. As Table 1 below shows, the majority of these guilty verdicts were also delivered by

Latin American courts (42%).

Further information on the data and methods used in the project and the country and

regional information concerning amnesties and guilty verdicts can be found in Appendix I-III. In

the interest of providing systematic coverage across all countries, the research team used a

consistent set of sources recognizing that this method undercounts trials and amnesties. Finding

accurate information on specific countries, however, would bias the comparison since certain

countries have better systems of counting and tracking trials and amnesties than others. For

example, information contained in the database of the Centre for Legal and Social Studies

(CELS) lists a total of 416 individuals found guilty in Argentina by 2013, while that of the

Human Rights Observatory of the Universidad Diego Portales lists 266 individuals found guilty

in Chile until August 2012.14 Our database seems to be undercounting in those two countries,

showing instead 86 individual guilty verdicts for Argentina and 71 for Chile.

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Table 1: Amnesties and Guilty Verdict by region

Research Findings

The research allowed us to address the following questions: Has the rate of amnesty law

adoption changed over time and with the age of accountability? Has the type of amnesty law

changed allowing for a higher level of accountability? Where amnesty laws have persisted, have

courts found ways around amnesty laws to allow for prosecutions? Has justice increased with the

age of human rights accountability or do barriers continue to block justice?

Tracking amnesty laws

At first appearance, the research seems to confirm the assumption that amnesty laws began to

taper off with the age of human rights accountability. As Figure 1 shows, the number of

countries adopting trials each year have increased over time while the number of countries

adopting new amnesty laws each year have fallen, suggesting a trend away from amnesty law

adoption.

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Figure 1: Trends in Amnesty and Accountability, 1970-2010

On closer inspection, however, our research questions that assumption. Amnesties adopted at an

earlier time continue to have legal standing, as shown in Figure 2. Although there was a small dip

in amnesties a few years after the 1998 Rome Statute marking the age of human rights

accountability, over all amnesties that had been adopted in previous years continued to have the

power of law.

Figure 2: Total Amnesties with Legal Standing, 1970-2011

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Given the persistence of legally standing amnesty laws, and following on the assumptions

in Snyder and Vinjamuri and Olsen et al., we probed whether the rate of transitions, rather than

the age of accountability, explained the apparent drop off in the adoption of new amnesty laws.

As Figure 3 shows, amnesties did not steadily rise or decline but peaked at three key moments

corresponding to political transitions. The first peak in the mid and late 1970s witnessed the

transitions in Southern Europe, including in Portugal, Greece and Spain. The second, and higher

peak, occurred with transitions from authoritarian rule in Latin America and transitions from

communism in the former Soviet Bloc countries in the 1980s and 1990s. A third peak around

2004-2006 relates to transitions in several African countries, including Algeria, Democratic

Republic of Congo (DRC), and Liberia. The decline in the number of transitions since that

period may explain the low level of new amnesty law adoption. Amnesty laws seem at least

somewhat independent of the global human rights norm; consistent with some theoretical

arguments their enactment appears to remain in use as a function of transitional governments’

needs.

Figure 3: Trends in Amnesty and Transition, 1970-2010

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To further examine amnesty trends and patterns, the team investigated which of the

legally standing amnesty laws complied with international human rights law and which did not.

Our analysis of amnesty laws, summarized in Table 2 below, could suggest that compliant

amnesty laws have tended to emerge after the 1998 Rome Statute creating the International

Criminal Court and are thereby consistent with the argument made by Sikkink and Malinder that

more partial amnesty laws accompany the age of human rights accountability. Although the

compliant amnesty laws are split evenly between those adopted before and after 1998, the period

after 1998 is much shorter (13 years) than the years before (24 years). Detracting from that

argument, however, are the data on non-compliant amnesty laws. Nearly the same number of

non-compliant laws (4 in five countries) as compliant laws (5 in three countries) was adopted

after 1998. The vast majority of legally standing amnesty laws, moreover, is not in compliance

with international standards. Although ten of those laws have been overturned (two before 1998

and eight after), this involved only three countries (Argentina, Bangladesh, and Uruguay). These

data provide fairly weak evidence of the impact of the age of human rights accountability with

regard to the compliance of amnesty laws to international standards.

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Table 2: Response to Accountability Norm

Table 2 suggests additional trends that warrant further exploration. On the one hand,

most of the compliant amnesty laws have been adopted in Africa (7 out of 10). On the other

hand, the region that has moved the furthest in overturning non-compliant amnesty laws is Latin

America (2 out of 3 countries; 9 out of 10 laws). The researchers began to consider regional

patterns that might explain where the age of human rights accountability had penetrated the

deepest and why.

Regional patterns reveal a complicated picture of the diffusion of global human rights

norms. Africa looks like the leader in compliant amnesty laws, with 7 out of the 10 compliant

laws in the world. As Table 1 shows, this is 70 per cent of the world’s amnesty compliant laws

with two other regions (Latin America and Europe) sharing the remaining 30 per cent. Despite

those impressive figures, this still amounts to only seven laws in the world. Moreover, the region

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does not appear to have used those compliant amnesty laws to become a world leader in

prosecuting perpetrators of past human rights abuses; Africa follows Latin America (42%) and

Europe (33%) with only 15% of the world’s guilty verdicts. Examining the regional patterns

suggests that compliant amnesty laws do not necessarily guarantee accountability for past human

rights violations.

Latin America further complicates the regional picture. It is the global leader in amnesty

law adoption in general (46%), and amnesty laws that do not comply with international standards

in particular (52%). These figures hint that the region has the lowest level of legal accountability

for human rights violations in the world. Defying that profile, the region has become a global

leader in convictions for human rights violations. Over 40 per cent of the global guilty verdicts

are located in the Americas. The presence of amnesty laws, and even non-compliant amnesty

laws, does not necessarily block accountability.

To summarize our key research findings, the researchers drew the following conclusions about

the pattern of amnesty law adoption in the age of human rights accountability. First, there is little

evidence to fully support the claim that the lowered rate of amnesty law adoption corresponds to

the age of human rights accountability. Moreover, the majority of legally standing amnesty laws

are not in compliance with international human rights norm even after 1998. Despite this

finding, non-compliant amnesty laws have not necessarily blocked accountability as the data

from Latin America show. On the other hand, we have also seen how compliant amnesty laws

have not guaranteed accountability as Africa shows. These findings suggest that something other

than amnesty laws are blocking or promoting accountability. We explored possible factors to

explain these phenomena.

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Tracking Challenges to Amnesty Laws

The evidence from Latin American suggests that courts have found ways around amnesty laws

to convict perpetrators of past human rights violations. The researchers thus explored where

amnesty laws had been legally challenged, opening up the pathway to accountability. (A

discussion of the definition of and determination of challenges can be found in Appendix I.)

As the researchers expected given the outcome of human rights trials, the vast majority

of legal challenges are concentrated in Latin America: 90 per cent of the legal challenges to

amnesty laws in the world. This finding illustrated in Table 3 suggests that where amnesty laws

have been legally challenged either through international pressure or domestic pressure, amnesty

laws will likely be weakened, circumvented through loopholes, or overturned in the rare case.

Latin America had two out of three of those rare cases.

Region Total No. (%) Dom Intl INGO

Africa 3 (2%) 3 0 7

Americas 145 (90%) 69 76 39

Asia 5 (3%) 5 0 0

Europe 4 (2.5%) 1 3 2

MENA 4 (2.5%) 0 4 5

TOTAL 161 78 83 53

Table 3: Regional Distribution of Challenges

The high number of challenges in Latin America with a corresponding high level of

guilty verdicts suggests judicial leadership and capability. For example, Argentina represents the

country with the greatest number of domestic legal challenges compared to the rest of the region

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and the world. It is also the country with the highest number of guilty verdicts. These challenges

eventually culminated in the annulment of the amnesty laws. (More country and regional details

on challenges can be found in Appendix II.) The challenges, in other words, may reflect factors

such as judicial leadership and capability to overcome non-compliant amnesty laws and promote

accountability.

The region also has a high level of international legal challenges, suggesting that the

presence of an active Inter-American Human Rights system ruling against the region’s amnesty

laws helps explain the higher degree of accountability in the region. International pressure in the

form of international non-governmental organizations is also much higher in the Americas

compared to other regions.

The researchers drew two main conclusions from the data on challenges: international

pressure on countries with non-compliant amnesty laws tends to weaken those laws and

promote accountability and responsive domestic courts are likely to find ways to bypass amnesty

laws and promote accountability. To further develop these findings the researchers began to

investigate the trials and guilty verdicts.

Tracking Domestic Prosecutions and Amnesty Laws

With the age of human rights accountability, the expectation is not only that there will be an

increase in human rights trials, but also in guilty verdicts resulting from those trials. Evidence

does not entirely support that assumption, however. Of the 1812 human rights trials in the

database, the vast majority (82%) ended in no verdict at all, suggesting either a lack of

information about trials once they are initiated or a high degree of cases in which trials are still

ongoing or have been shelved.15 Of the 330 trials that reached a verdict, 267 (81%) found

perpetrators guilty of human rights abuses.

The project’s data on human rights trials also reveal that certain regions (Latin America)

and certain countries within those regions are global leaders with regard to accountability (guilty

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verdicts) for human rights violations. Within Latin America, four countries (Argentina, Chile,

Guatemala, and Peru)16 dominate the number of trials and guilty verdicts in the region; four out

of the 14 countries with trials concentrate 65% of the guilty verdicts. Two out of 15 countries in

Europe with trial verdicts (Croatia and Serbia) have nearly half (47%) of all of the guilty trial

verdicts in the region. Nearly half (49%) of the trial verdicts in Africa are rendered by courts in a

single country (DRC). All four trials and guilty verdicts were reached in a single MENA country

(Turkey). In Asia, two countries (South Korea and Indonesia) reached 70 per cent of the guilty

verdicts. Thus rather than a regional or global phenomenon of accountability, there are a few

isolated countries that seem to be driving the assumptions regarding the age of human rights

accountability for past human rights abuses. (See Appendix II for the details of trials by

country.)

Examining the countries that lead in trials further illustrates this concentration. Only

seven countries in the world have more than ten trials with guilty verdicts. Yet those seven

countries constitute half of all the trials with guilty verdicts in the world. The seven countries –

Argentina, Chile, Guatemala, Peru, Croatia, Serbia, and the DRC – should be able to identify a

clear pattern of relationship of accountability to amnesty laws. But they do not. We would

expect these countries to have either no amnesty law or compliant ones. While that is the case

for about half of the countries (Argentina, Guatemala, Croatia, Serbia, and DRC), the other half

have non-compliant amnesty laws (Argentina, Chile, Guatemala, and Peru).17 Examining the

country leaders in guilty verdicts in the other world regions, the patterns are even less clear.

Turkey, the only country among the MENA countries with guilty verdicts has no amnesty law,

but the two guilty verdict leaders in Asia – South Korea and Indonesia – both have non-

compliant amnesty laws.

Moving beyond those countries in which guilty verdicts are concentrated, we cannot find

clear sets of patterns. What is the relationship of these human rights trial leaders to amnesty

laws? Twenty-eight per cent of the countries with guilty verdicts (13 out of 47 countries)

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concentrated 70 per cent (174) of the world’s guilty verdicts. These countries have the following

break down in terms of their amnesty law: over half (8) have either amnesty laws that respect

international human rights law (Argentina, Croatia, DRC, and Guatemala) or have no amnesty

law at all (Indonesia, Ethiopia, Czech Republic, and Paraguay). Countries with non-compliant

amnesty laws (Argentina, Chile, Panama, Peru, South Korea, and Former Yugoslavia) are also

among the leaders in guilty verdicts. In other words, it does not appear that the kind of amnesty

law (or its absence) shapes accountability behaviour.

If one looks at the absence of guilty verdicts for human rights trials, more doubt is cast

on whether removing an amnesty law or making it more partial and more compliant with

international standards enhances accountability. Returning to the seven countries that have

compliant amnesty laws, over half (5) have not had a single guilty verdict: Bangladesh, Burundi,

Liberia, Uganda, and Uruguay, and a sixth country (Albania) had only one guilty verdict. These

data further confirm that an amnesty law that complies with international human rights

standards does not guarantee accountability.

Similarly, the absence of an amnesty law does not mean that accountability is guaranteed.

Countries without amnesty laws that bar human rights prosecutions still contributed only 29 per

cent (73) of the guilty verdicts in the world. Compliant amnesty laws that allowed for

prosecutions of certain human rights violations did slightly better with 32 per cent (89) of the

guilty verdicts. Together these countries with no amnesties or compliant amnesties included

about a third of the countries in the database but nearly two-thirds of the guilty verdicts. Among

the countries with blanket amnesty laws, twelve issued no guilty verdicts while eighteen rendered

guilty verdicts. These data further emphasize that the type or absence of amnesty laws does not

determine the success in accountability processes, leading us to several related observations.

Principally, we found that the absence of amnesty laws does not guarantee accountability and, as

we saw with the data from Africa, partial amnesty laws that reflect international human rights

standards do not necessarily guarantee accountability. On the other hand, we have also seen that

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non-compliant amnesty laws, such as those found throughout Latin America, do not always

block accountability. In fact, by looking at certain accountability leaders we could reveal

processes in some countries whereby amnesties were bypassed and a degree of justice could be

achieved.

Guilty Verdicts No Guilty Verdicts

No Amnesty TOTAL: 28

Africa: 4

Asia: 5

Americas: 5

Europe: 13

MENA: 1

TOTAL: 31

Africa: 11

Asia: 4

Americas: 3

Europe: 11

MENA: 2

Compliant Amnesty TOTAL: 3

Africa: 1

Asia: 0

Americas: 1

Europe: 1

MENA: 0

TOTAL: 3

Africa: 3

Asia: 0

Americas: 0

Europe: 0

MENA: 0

Blanket Amnesty TOTAL: 17

Africa: 4

Asia: 3

Americas: 7

Europe: 3

MENA: 0

TOTAL: 6

Africa: 4

Asia: 0

Americas: 0

Europe: 0

MENA: 2

88 countries total TOTAL: 48 TOTAL: 40

Table 4: Patterns of Amnesty and Guilty Verdicts

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The lack of clear patterns can be interpreted in a number of ways related to the

assumptions behind justice and barriers to justice in the age of human rights accountability. On

one hand, the table above shows that transitional justice countries are almost split in terms of

allowing for justice (at least one trial with a guilty verdict) and those where impunity continues. A

positive interpretation would claim that more countries are allowing for justice than denying it.

The concentration of countries with guilty verdicts, and the fact that a third of all countries (16

of 48) with guilty verdicts have only one such trial, somewhat diminishes this positive

interpretation. Nonetheless, as we have shown elsewhere, trials have increased over time. More

surprising in these results is the relationship to amnesty laws. We would expect that where the

barriers to justice do not exist – either because of the absence of an amnesty law or with a

compliant amnesty law – guilty verdicts would be more likely reached. The summary table

above questions that assumption. While there are more guilty verdicts in countries with no

amnesty law, there are even more countries without amnesty laws that have not rendered a single

guilty verdict. Unexpectedly, the existence of blanket amnesty laws has not prevented justice. We

see that there are a higher number of countries with blanket amnesty laws that have rendered

guilty verdicts than those with no guilty verdicts. Blanket amnesty laws, in other words, are not

protecting perpetrators from prosecution. How countries have found their way around these

barriers to justice is the focus of the next section of the article.

Pathways to Accountability

Concentrating on Latin America where amnesties and accountability have co-existed, we have

found four different pathways to accountability. In a piece written together with two other

researchers (Lessa et al. 2014), we considered these pathways in details. The four pathways are

summarized in Figure 4 below.

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Obstinate Accountability Creative Democratic

Amnesties Impasse Circumvention Displacement

Full Impunity Full Accountability

Figure 4: The Accountability-Impunity Continuum

We found that the placement along the accountability-impunity continuum in Latin

America, depended on the strength or weakness of four main factors: civil society demand,

international pressure, judicial leadership, and the absence of veto players. Where all four factors

were strong, the amnesty law was democratically displaced leading to the promotion of full

accountability. This is the Argentine example. Although Uruguay also democratically displaced

its amnesty law, it has had very little prosecutorial activity. The pathway to accountability in that

case did not open up with the removal of the amnesty barrier; instead the process remains

blocked due to the presence of strong veto players and the weakness of judicial leaders. Where

all of the factors were weak, amnesty laws remain obstinately in place and impunity is the

outcome. Brazil represents this case.

In between those two extremes on the continuum, the factors vary in strength. The

researchers found that where civil society strongly demanded accountability, and international

pressure reinforced the legitimacy of that demand, judicial leadership often emerged in response,

legally challenged amnesty laws and promoted accountability by finding legal innovations to

creatively circumvent the amnesty law. Veto players therefore block efforts to remove the legal

standing of the law, but they fail to block accountability processes that bypass these laws. Chile

represents this pathway. The fourth pathway is where civil society and international pressure

promote accountability and have some modest success. The strong presence of veto players

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influences the judiciary and blocks most justice initiatives, however. An accountability impasse is

reached, greatly constraining the possibility of justice as the Salvadoran case illustrates.

Three key findings emerge from this analysis. First, civil society demand, international

pressure, judicial leadership, and the absence of veto players are important. While each factor

plays a key functional role in overcoming impunity, no single factor is sufficient to bring about

pathways to accountability. We find that the combined strength of these four factors is the

strongest predictor of overcoming impunity. Second, it is rare that all factors are strong, thus

limiting progress toward overcoming impunity. Particularly in the early years following a

repressive dictatorship, civil society demand tends to be weak, strong veto players prevail and

block accountability, international pressure may not emerge and judiciaries have not yet

experienced generational shifts or reform to challenge impunity. The weakness of these four

factors, we contend, predicts persistent or obstinate amnesties. Third, variation in the strength of

these factors explains countries’ placement along the continuum from impunity to accountability.

Strong veto players and weak judicial leadership are most likely to block full accountability, even

where civil society and international pressure is strong, leading to accountability impasse. Where

judicial leadership emerges, civil society demand combined with international pressure finds ways

around persistent blanket amnesties to promote justice. Creative circumvention thus depends on

the judiciary, but the judiciary in turn relies on civil society demand, international pressure and

waning support for the old authoritarian leaders

Conclusions and Policy Implications

The research team’s careful research and analysis of the data on amnesty laws, challenges to

amnesties and guilty verdicts, and the paths to accountability lead to a series of conclusions with

relevant policy implications. The policy implications correspond to the findings on the four main

questions set out at the beginning of this article.

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We ask, first, if the rate of amnesty law adoption changed over time and with the age of

accountability. New amnesty laws appear to have dropped off over time and even legally

standing amnesty laws have peaked and appear to have begun to taper off. Nonetheless, the

decline in new amnesty laws appears to correspond to the decline in the number of transitions

rather than to a new set of global norms, international legal constraints, or a response to the

rising threat of prosecution owing to the age of human rights accountability. The number of

legally standing amnesty laws grew during the age of human rights accountability, only slightly

dipping with the annulment of amnesty laws in two countries in the post-1998 period. While

some might interpret those annulments as a sign of the impact of the age of human rights

accountability on the rate of amnesty laws, a third country annulled its amnesty law prior to

1998. Moreover, of the three countries with annulled amnesty laws, only one has successfully

prosecuted perpetrators of past human rights abuses. The accountability process in that country

began well before the age of accountability, moreover. Our findings thus suggest that the

accountability trend has not significantly shifted patterns of amnesty adoption. The failure of the

age of human rights accountability to remove legal barriers to prosecution, however, has not

blocked justice, as we show further below. The policy implications of our research thus inclines

toward working within existing legal and institutional boundaries, whatever they may be, to

overcome barriers to justice, rather than focusing on legal and formal barriers to justice per se.

Our second question explores those legal and formal barriers; it probes the relationship

between the type of amnesty law and the rate of accountability. We found that the type of

amnesty law had not dramatically changed with the age of accountability. Partial amnesties in the

post-1998 period only outpaced blanket amnesty laws by one law. Moreover, we found that the

same number of partial amnesty laws had been enacted before the age of accountability as after

1998. Although we found that few discernable patterns emerged in the relationship between the

type of amnesty law and the likelihood of successful prosecution, we note several significant

relationships. The first implication is that impunity and accountability are not necessarily a

22

function of the type of amnesties but a function of the context in which amnesties are

embedded. Take the case of Africa and Latin America. Even though Africa had the highest

proportion of partial amnesties, Latin America was the region that had the highest number of

guilty verdicts, despite having a large number of blanket amnesties. Thus, accountability

outcomes seem to be driven by other factors, beyond the mere existence of amnesties and

different typologies of amnesties. Indeed, Latin America had the highest concentration of

blanket amnesties, but these did not block the accountability process. These regions thus suggest

policy implications. On one hand, Africa suggests that policies should not merely advocate

compliance with international human rights standards, but consider the barriers – beyond

amnesties – that block accountability. Latin America provides insights into what factors or actors

policies should target to replicate the region’s success in overcoming impunity and promoting

accountability. The analysis of the pathways to accountability in the region is particularly telling

regarding the type of factors and how they interact to advance accountability.

The policy orientation toward challenging the legality or legitimacy of amnesty laws that

was expected to arrive with the age of human rights accountability has not had such an effect

outside Latin America. Only one of the three countries that annulled blanket amnesty laws has

had successful prosecutions (Argentina). In addition, the absence of amnesty law has not

guaranteed successful prosecution. We find that guilty verdicts were no more likely (and actually

even slightly less likely) than failing to prosecute in countries with such laws. On the positive

side, however, we found that blanket amnesty laws have not blocked accountability. More

countries with blanket amnesty laws rendered guilty verdicts than fail to do so. These findings

suggest that the focus on removing the laws themselves may not be as successful a prosecutorial

strategy than finding legal loopholes to get around them. In this way, our research differs from

the work of other scholars such as Louise Mallinder who released in October 2013 the “Belfast

Guidelines on Amnesty and Accountability” developed by an Expert Group of independent,

interdisciplinary scholars and practitioners.18 Those guidelines aim to assist those seeking to

23

make or evaluate decisions on amnesties and accountability in the midst or in the wake of

conflict or repression, focusing especially on the scope, possible beneficiaries, and the adoption

and implementation of amnesties. Our study suggests that the focus should be aimed less toward

the amnesty laws themselves and instead around the capacity of civil society and state actors in

finding ways around amnesty laws and other barriers to justice. In sum, amnesties do not

necessarily block trials and the absence of amnesties does not, on its own, promote

accountability; other barriers exist that block accountability. The policy implications of our study

is thus to identify the barriers and the pathways around them.

That finding relates to the third question regarding the capacity to overcome barriers to

justice in the age of human rights accountability. Our study of challenges to amnesty laws shows

that the region with the highest level of justice (Latin America) has also experienced the highest

number of challenges to impunity. Indeed, four Latin American counties constitute 65% of the

guilty verdicts in the region and 63% of the amnesty challenges in the region. Outside Latin

America, however, there are fewer legal challenges to amnesty laws. The prosecutorial success of

leaders in guilty verdicts in other geographic regions have not faced challenges to their amnesty

laws. Thus, legal barriers may not be as significant a hurdle to justice as other social and political

factors. The policy implications of our study is to focus efforts on strengthening civil society

demand for accountability; heightening international pressure for accountability; enhancing

judicial leadership behind accountability; and weakening veto players who promote impunity and

block accountability.

Civil society demand is fundamental to the promotion of accountability. Without victims

of human rights claiming their right to redress, judiciaries are unlikely on their own accord

challenge amnesty laws and promote accountability. The civil society groups that have achieved

high visibility through the media, using innovative mobilizational techniques, and reaching

beyond the generation of directly affected individuals to appeal to subsequent generations, have

resonated at the domestic and international level, applying pressure on the judiciary to challenge

24

amnesty laws and impunity and promote accountability. Civil society demand is insufficient on

its own, but challenges are unlikely to occur without it. Thus strengthening civil society demand

for accountability through domestic and international media visibility, the development of

innovative mobilization techniques and inter-generational appeal of accountability issues is only

one policy implication of our study.

The role of international pressure is also insufficient on its own. It can amplify civil

society demand through international governmental and non-governmental organizations.

Regional or foreign courts can also weaken amnesty laws by ruling against them and promoting

prosecutions. By recognizing the contribution of judicial leaders to accountability, international

forces enhance the leaders’ prestige domestically, providing some security and legitimacy for

their work. International pressure thus plays a fundamental role in sustaining and enhancing

domestic civil society mobilisation for accountability; this can be achieved through referring

cases to international, regional, and foreign human rights courts.

Ultimately the capacity to overcome impunity and promote accountability is in the hands

of the judiciary. Judicial leaders have emerged in a few countries around the world, using

innovative legal strategies to challenge amnesty laws, to bypass them, and in rare cases to annul

them. It is not enough, as this research has shown, to weaken or remove amnesty barriers;

judicial leaders also have to advance trials. This may often require innovative and creative

interpretations of existing laws or the application of international human rights provisions to

break the logic of impunity that often surrounds human rights violations as in the example of

Argentina in the 1990s. 19 Our study demonstrates the importance of enhancing judicial

leadership behind accountability, which can be achieved through the identification and

recognition of judicial accountability leaders, the protection of their personal security, as well as

the diffusion and adaptation of successful innovative legal strategies, such as with the

interpretation of enforced disappearance as a permanent crime which has been used in several

25

countries such as Argentina, Brazil and Chile. In that effort, they may be blocked by veto

players.

Where veto players possess significant power they can counter civil society demand for,

and judicial leadership behind, accountability. They sometimes threaten civil society and judicial

leaders. They can use their power to remove judicial leaders from their positions as in the case of

judge Mariana Mota in Uruguay in February 201320 or Guatemalan attorney general Claudia Paz

y Paz in May 2013. Protecting civil society and judicial actors from these threats is thus crucial to

promoting leadership behind accountability. Weakening veto players’ power would also remove a

significant barrier to accountability. Our study shows that former veto players begin to distance

themselves from their previous positions, and weaken the barrier to accountability, with the

discrediting of the former regime. Thus our policy implications include active efforts within and

outside borders to delegitimize the former authoritarian regime through the denunciation of

atrocity and corruption, fragmenting political and economic elites, reducing the support and

allegiance to the regime, and opening up the possibility of prosecution without veto.

Finally, we examine whether justice has increased with the age of human rights

accountability and what barriers to justice continue to prevail. Few accept that the progression

toward justice in the age of human rights accountability is inexorable or linear (Sikkink 2012;

Clark 2012). While we have seen an increase in trials beginning even before the age of human

rights accountability, we cannot fail to acknowledge the barriers to justice that persist. Even in

cases where amnesty laws never emerged, where they were removed, or where they are partial,

justice barriers in the form of veto players, lack of civil society demand, or the absence of

leadership in the judiciary block accountability. To end on a positive note, however, we have

also found that even where blanket amnesty laws could and should block accountability, they

usually fail to do so. Civil society actors have mobilized together with international pressure and

domestic judicial leadership to find creative and innovative ways to bring justice and overcome

those barriers.

26

Appendix I: Overview of Data and Methods

The data used in this paper is drawn from two databases. A team of researchers based at the

University of Oxford constructed a database of amnesty laws while a second team based at the

University of Minnesota built a database of human rights trials. The researchers used the

following sources to build these databases: Keesing’s World News Archive; U.S. Department of

State Country Reports on Human Rights; Human Rights Watch country reports; the Amnesty

Law Database; the International Center for Transitional Justice country reports and studies;

transitional justice laws and decrees; secondary literature on specific countries; and in-country

media sources.

Both databases and the archive of amnesty laws and human rights trials will soon become

available at www.transitionaljusticedata.com.

In building the amnesty database specifically, the researchers drew on two pre-existing

data bases: Louise Mallinder’s Amnesty Law Database and Tricia D. Olsen, Leigh A. Payne and

Andrew G. Reiter’s Transitional Justice Database Project (www.tjdbproject.com). The

researchers also updated the data on amnesties from 2009 to 2011, reproducing the Olsen et al.

methodology of extracting such information from Keesing’s World News Archive. The

researchers carried out additional research on each amnesty law to determine if it fit with the

project’s definition of an amnesty for human rights violations carried out during the

authoritarian period. They defined a ‘fit amnesty’ as any legislative, constitutional, or executive

provision that includes crimes a) committed during the authoritarian period, b) involving human

rights violations, and c) carried out by state authorities or individuals/groups working on behalf

of the state. They determined that of the 433 amnesty laws that they analysed in the 88

transitional countries (see Appendix I for the full set of countries and amnesty laws), only 63

laws in 34 countries fit their definition. They created an archive of these amnesty laws.

The researchers thus refined the amnesty law data in terms of definitional criteria. In

addition, they began to examine particular types of amnesty laws to test the assumptions about

27

trends. They made distinctions between ‘partial’ amnesty laws, or those that exclude from their

beneficiaries perpetrators of war crimes, genocide, and crimes against humanity, to determine

which laws complied with international human rights standards.

They further examined the process of challenging amnesty laws so that they would

adhere to international human rights standards. By ‘domestic challenges,’ the project identifies

attempts to modify the legal scope of amnesty laws via courtroom, parliament, ballot box (e.g.,

exclude certain types of crimes, particular types of perpetrators, time period of the crimes);

cancel legal effects of amnesties retroactively, for the future (derogation), or both (nullification).

‘International challenges’ include decisions regarding the legal standing of amnesty laws by

international governmental organizations (e.g., Inter-American or UN System). The researchers

tracked international non-governmental organizations reports that targeted amnesty laws.

However, because these reports do not have a direct impact on the legal scope and standing of

the amnesties, they were not included as challenges in this policy brief. The researchers include

these reports as evidence of international pressure, however, here and in their other work.

In constructing the human rights trials database, the researchers based at the University

of Minnesota look at prosecutorial activity as any activity before, during, and resulting from

criminal procedures brought against perpetrators of human rights violations. From the wide

range of factors characterized as prosecutorial activity in the database, the current analysis draws

only on guilty and not guilty verdicts for crimes carried out during the authoritarian period and

adjudicated after the transition from authoritarian rule. Such trials were coded by the team when

they found individuals and groups held accountable by a criminal court, defined as an official

judicial body created, financed, and operated by state actors, international governmental

organizations, or both.

In constructing the sample, the researchers only included democratic transitions in the

two databases. To determine these cases, the team began with the list of all countries in the

world over one million in population and then followed an accepted method used by other

28

scholars of democratization and transitional justice to establish the set of countries that have

undergone transitions, i.e., Polity IV’s Regime Transition Variable (Regtrans) (Marshall and Jaggers

2013). The research team included major and minor democratic transitions as defined by Polity

IV. A major democratic transition involves a six-point or greater increase in the POLITY score

over a period of three years or less, and a shift from an autocratic POLITY value (-10 to 0) to a

partial democratic POLITY value (+1 to +6) or full democratic POLITY value (+7 to +10), or a

shift from a partial democratic value to a full democratic value. A minor democratic transition

involves a three to five point increase in the POLITY score over a period of three years or less,

and a shift from autocratic to partial democratic or from partial to full democratic value.

Democratic transitions where REGTRANS is coded as “99” (for state creation) and the first

year in which a new state is undergoing a democratic transition were also included. Finally,

REGTRANS is also coded as “97” for state transformation, and the researchers noted a

democratic transition when the old state, or part of the old state, was non-democratic and the

new state is democratic.

29

Appendix II: Data on Amnesties and Trial by Country

Africa

No

Amnesty

Compliant Non-Compliant

Amnesty

Challenges

Total/Dom/Intl

Guilty

Verdicts

Benin 1

Burkina Faso 1

Burundi 1 1

CAR 1

Congo, Rep of 1

Cote D’Ivoire 1 1

DRC 3 19

Ethiopia 1 8

Gabon 1

Ghana 1

Guinea Bissau 1

Kenya 1 1

Lesotho 1

Liberia 2

Madagascar 1 1

Malawi 1

Mali 1 1

Mauritania 1

Mozambique 1

Niger 1 1

Nigeria 1

Senegal 1

30

Sierra Leone 1 1

South Africa 3 3 3 6

Uganda 1

Zambia 1

Zimbabwe 3

TOTAL (27) 15 7 13 3 3 0 39

Asia

No

Amnesty

Compliant

Amnesty

Non-Compliant

Amnesty

Challenges

Total/Dom/Intl

Guilty

Verdicts

Bangladesh 1 (overturned) 1 1

Cambodia 2 1

Indonesia 1 8

Kyrgyzstan 1 1

Mongolia 1

Nepal 1 2

Pakistan 1 2

Philippines 1 0

S. Korea 2 8

Taiwan 1

Thailand 1 4 4 1

Timor Leste 1

TOTAL (12) 8 0 6 5 5 0 23

MENA

No

Amnesty

Compliant

Amnesty

Non-Compliant

Amnesty

Challenges

Total/Dom/Intl

Guilty

Verdicts

Algeria 1 3 3

Iran 1

31

Lebanon 1 1 1

Sudan 1

Turkey 1 4

TOTAL (5) 3 0 2 4 0 4 4

Americas

No

Amnesty

Compliant

Amnesty

Non-Compliant

Amnesty

Challenges

Total/Dom/Intl

Guilty

Verdicts

Argentina 8 (overturned) 36 28 8 26

Bolivia 1 2

Brazil 1 5 1 4

Chile 1 16 6 10 16

Dom Rep 1 2

Ecuador 1

El Salvador 3 21 3 18 5

Guatemala 1 4 20 6 14 17

Haiti 1 7

Honduras 3 4 4 1

Mexico 1 5

Nicaragua 4 1

Panama 1 8

Paraguay 1 8

Peru 1 20 5 15 14

Uruguay 1 (overturned) 21 16 7

TOTAL (16) 6 1 28 145 69 76 112

32

Europe

No

Amnesty

Compliant

Amnesty

Non-Compliant

Amnesty

Challenges

Total/Dom/Intl

Guilty

Verdicts

Albania 1 1 1

Armenia 1 1

Azerbaijan 1

Belarus 1

Bosnia/Herz. 1

Bulgaria 1 1

Croatia 1 20

Czech Rep 1 9

Czechoslova. 1 2

Estonia 1

Georgia 1

Germany 1 5

Greece 1 6

Hungary 1 2

Kosovo 1

Latvia 1 2

Lithuania 1 4

Macedonia 1 2

Moldova 1

Poland 1 4

Portugal 1 1

Romania 1 6

Russia 1 1

33

Slovakia 1

Slovenia 1

Spain 1 4 1 3

Ukraine 1

Yugo/Serbia 1 22

TOTAL (28) 23 2 4 4 1 3 89

34

Appendix III: Description of Amnesty Laws

Country Amnesty Name

Year

Latin

America

Argentina Law 22.924 of National Pacification (Ley de Pacificacion Nacional) 1983

Argentina Full Stop Law (Ley de punto final) - Law No. 23492 1986

Argentina Due Obedience Law (Ley de Obediencia Debida) - Law No. 23521 1987

Argentina

Pardon 1002/89 - Pardon to people included in specific judicial

proceedings (Decreto 1002/89 - Indultase a personas comprendidas en

determinadas causas) 1989

Argentina

Pardon 1003/89 Pardon to people included in specific judicial proceedings

(Decreto 1003/89 - Indultase a personas comprendidas en determinadas

causas) 1989

Argentina Decreto 2741/90 1990

Argentina Decreto 2745/90 1990

Argentina Decreto 2746/90 1990

Brazil 1979 Amnesty Act, Law No 6.683 1979

Chile Ley de Amnistia Chilena - Decreto Ley 2191 1978

El Salvador Ley de amnistia para el logro de la reconciliación Nacional, Decree 805 1987

El Salvador Legislative Decree 147 of 23 January, the National Reconciliation Law 1992

El Salvador General Amnesty Law for the Consolidation of the Peace 1993

Guatemala Decreto-Ley 33-82 1982

Guatemala Decreto-Ley 18-85 1985

Guatemala Decreto Ley 8-86 1986

35

Guatemala Decreto Ley 32-88 1988

Guatemala

1996 National Reconciliation Law (Ley de Reconciliacion Nacional),

Decree 145-96 1996

Honduras Decreto N. 199-87 1987

Honduras Decree 30 of 14 December 1990 1990

Honduras Decreto 87-91 1991

Mexico Ley de Amnistia del 21 de enero de 1994 1994

Nicaragua Law 36 of 26 March 1988 (and Decree 44 of 1989) 1988

Nicaragua Ley de Amnistia General y Reconciliacion Nacional (Ley No.81) 1990

Nicaragua Ley de amnistia (Ley No.100) 1990

Nicaragua Decreto-Ley No.47-91 1991

Panama Decreto Ejecutivo No. 469 de 23 de septiembre de 1994 1994

Peru Ley No. 26479; related: Ley No. 26492 1995

Uruguay

Ley 15.848 de Caducidad de la Pretension Punitiva del Estado (Law on the

Expiry of the Punitive Claims of the State) 1986

Asia

Bangladesh

Ordinance No. XIX of 1975 (also known as The Indemnity Ordinance

1975) 1975

Cambodia

Law on the Outlawing of the Democratic Kampuchea Group,

No.01.NS.94. 1994

Cambodia Royal Decree (Reach Kret), NS/RKT/0996/72 1996

South Korea Executive Decree 1997

South Korea Executive Decree 1998

Thailand Executive Decree 1992

Europe

36

Albania Law 8202 Amnesty 1997

Albania

Law 8198 - Amnesty for people, civilian and military personnel implicated

in riots after the bankruptcy of Fraudulent Pyramid Schemes 1997

Croatia Law of Forgiveness 1992

Greece Presidential Decree 519 1974

Spain Ley 46/1977 1977

Romania

Decrete Presedintele Romaniei Privind Aprobarea Unor Gratieri

Individuale (President of Romania Decrees Approval of Individual

Pardons) 1994

Africa &

MENA

Algeria Ordinance 06-01 2006

Burundi Exact Name Unknown 1990

Burundi

Prot. III, Chapter III, Article 26(l)) of the Arusha Peace and Reconciliation

Agreement 2000

DRC

Decret-Loi N. 03-001 du 15 avril 2003 portant amnistie por faits de guerre,

infractions politique et d'opinion (Decree Law N. 03-001 of 15 April 2003

granting amnesty for acts of war, political crimes and crimes of opinion) 2003

DRC

Loi N. 05-023 du 19 decembre 2005 portant amnistie pour faits de guerre,

infractions politique et d'opinion (Law N. 05-023 of 19 December 2005

granting amnesty for acts of war, political crimes and crimes of opinion) 2005

DRC

Loi N. 09-003 du 07 mai 2009 portant amnistie pour faits de guerre et

insurrectionnels commis dans les provinces du Nord-Kivu et du Sud-Kivu.

(Law N. 09-003 of 07 May 2009 granting amnesty for acts of war and

insurrection committed in the provinces of North Kivu and South Kivu) 2009

37

Ghana

1992 Constitution of the Fourth Republic of Ghana, First Schedule:

Transitional Provisions, Articles 34-35. 1993

Lebanon General Amnesty Law No. 84/91 1991

Liberia Cotonou Peace Agreement 1993

Liberia

Article 26(g) of the 2005 Act to Establish the Truth and Reconciliation

Commission (TRC) of Liberia 2005

Madagascar Exact Name Unknown 1975

Mali Col. Ousmane Coulibaly Pardon 2000

Mauritania Exact Name Unknown 1993

Mozambique Lei n. 15/92 de 14 de Outubro (Law 15/92 of October 14) 1992

Niger Exact Name Unknown 1995

South Africa Act 13 of 1977 1977

South Africa Act 152 of 1992 - Further Indemnity Law 1992

South Africa

Act 34 of 1995- The Promotion of National Unity and Reconciliation Act

(TRC Act) 1995

Uganda 1987 Amnesty Statute 1987

Zimbabwe Clemency Order No. 1 of 1988 1988

Zimbabwe Clemency Order No. 1 of 2000 2000

Zimbabwe Clemency Order No. 1 of 2008 2008

38

Endnotes

1 FRANCESCA LESSA AND LEIGH PAYNE (EDS), AMNESTY IN THE AGE OF

HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL

PERSPECTIVES (2012).

2 KATHRYN SIKKINK, THE JUSTICE CASCADE: HOW HUMAN RIGHTS

PROSECUTIONS ARE CHANGING WORLD POLITICS (2011).

3 Jo-Marie Burt, Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human

Rights Violations, 3 INTERNATIONAL JOURNAL OF TRANSITIONAL JUSTICE 384

(2009); Walter de León Orpi, Juan María Bordaberry: el dictador latinoamericano condenado por delitos de

lesa humanidad, in LUCHAS CONTRA LA IMPUNIDAD: URUGUAY 1985-2011 175 (Gabriela

Fried and Francesca Lessa eds., 2011).

4 ELLEN L. LUTZ AND CAITLIN REIGER (EDS.), PROSECUTING HEADS OF STATE

(2009).

5 Juan E. Méndez, Accountability for Past Abuses, 19 HUM. RTS. Q. 255 (1997).

6 Rule-of-Law Tools for Post-Conflict States: Amnesties

http://www.ohchr.org/Documents/Publications/Amnesties_en.pdf page 1

7 See for instance the sentences in these cases: Case of Barrios Altos v. Peru. Interpretation of

the Judgment of the Merits. Judgment of September 3, 2001. Series C No. 83 and the Case of

Gomes Lund et al. ("Guerrilha do Araguaia") v. Brazil. Preliminary Objections, Merits,

Reparations, and Costs. Judgment of November 24, 2010. Series C No. 219.

8 Kathryn Sikkink, The Age of Accountability: The Global Rise of Individual Criminal Accountability, in

AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE

AND INTERNATIONAL PERSPECTIVES 19 (Francesca Lessa and Leigh Payne eds., 2012).

Louise Mallinder, Amnesties' Challenge to the Global Accountability Norm? Interpreting Regional and

International Trends in Amnesty Enactment, in AMNESTY IN THE AGE OF HUMAN RIGHTS

39

ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES 69

(Francesca Lessa and Leigh Payne eds., 2012).

9 MARK FREEMAN, NECESSARY EVILS: AMNESTIES AND THE SEARCH FOR

JUSTICE (2009).

10 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the

Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

See Mark Freeman and Max Pensky, The Amnesty Controversy in International Law, in AMNESTY

IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND

INTERNATIONAL PERSPECTIVES 42 (Francesca Lessa and Leigh Payne eds., 2012).

11 Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of

International Justice, 28 INT’L SEC. 5 (2003).

12 TRICIA D. OLSEN, LEIGH A. PAYNE & ANDREW G. REITER, TRANSITIONAL

JUSTICE IN BALANCE: COMPARING PROCESSES, WEIGHING EFFICACY (2010).

13 The main sources used include: Keesing’s World News Archive; U.S. Department of State

Country reports on Human Rights; Human Rights Watch country reports; the Amnesty Law

Database; International Center for Transitional Justice country reports and studies; transitional

justice laws and decrees; secondary literature on specific countries; and in-country media sources.

14 http://www.cels.org.ar/blogs/estadisticas/ and http://www.icso.cl/observatorio-derechos-

humanos/cifras-causas-case-statistics/#causas

15 We plan to conduct further research into several questions related to this question. Is the high

number of no-verdicts a result of an absence of information generally, in the sources we used

(US State Department and Keesing’s), or have these trials simply never reached a verdict? Are

human rights trials more likely than other criminal trials to go on for a long period of time or

become ‘shelved’? We plan to develop a funding proposal to hire a team of researchers to

answer these questions regarding the lack of verdicts in human rights trials.

40

16 We are currently re-checking the Guatemala cases since our own data on Guatemala guilty

verdicts does not correspond to accepted wisdom on the lack of accountability in Guatemala.

17 Argentina and Guatemala appear in both lists. Argentina annulled its amnesty law late in the

process so it falls into the category of having a non-compliant amnesty law with guilty verdicts

and no amnesty law with guilty verdicts. Guatemala has compliant and non-compliant amnesty

laws so it falls into both categories as well.

18 Belfast Guidelines on Amnesty and Accountability. Transitional Justice Institute at the University of

Ulster, October 2013

http://www.transitionaljustice.ulster.ac.uk/documents/TheBelfastGuidelinesonAmnestyandAcc

ountability.pdf

19 Par Engstrom and Gabriel Pereira, From Amnesty to Accountability: The Ebb and Flow in the Search

for Justice in Argentina, in AMNESTY IN THE AGE OF HUMAN RIGHTS

ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES 97

(Francesca Lessa and Leigh Payne eds., 2012).

20 Francesca Lessa and Pierre Louis Le-Goff, Uruguay's Culture of Impunity Continues to Rear its Head,

AlJazeera, February 22, 2013.

http://www.aljazeera.com/indepth/opinion/2013/02/2013219105659440890.html