The judicial development of a norm on the permissibility
of amnesties under international law

Abstract

The use of amnesties in transitional justice remains a contentious issue. The fight against immunity at an international level have left little room for the application of amnesties for international crimes and human rights abuses. Nevertheless, amnesty measures continue being applied in many jurisdictions and the permissibility of conditional amnesties enacted as part of wider processes of reconciliation remains under debate. With no treaty provision explicitly proscribing the application of amnesties and article 6(5) of the Additional Protocol II to the Geneva Conventions encouraging the granting of ‘the broadest possible amnesty to persons who have participated in the armed conflict’, much of the attention has focused on the interpretation that courts and human rights bodies have drawn from human rights treaties. However, international courts and human rights bodies have almost exclusively dealt with unlimited and unconditional amnesties. There is still uncertainty about whether conditional amnesties for serious human rights violations are permissible under international law.
This thesis examines two core questions. Firstly, what has been the influence of judicial dialogue in shaping a norm on the permissibility of amnesties for serious human rights violations under international law? And secondly, what are the standards developed by domestic courts, international tribunals, and human rights bodies to evaluate the permissibility of conditional amnesties for serious human rights violations?
This research analyses a sample of 368 decisions adopted by courts and human rights bodies in the last three decades that discuss the legality of amnesties. Using a complexity theory approach, it examines the role of judicial decisions in shaping the contours of a norm on amnesties under international law. The study reveals how the judicial discussion of the permissibility of amnesties under international law has followed dynamics of path dependence,
where initial decisions adopted in the aftermath of autocratic regimes in Latin America have strongly determined the following treatment of amnesties in completely different contexts. However, the increasing number of interactions among judicial and quasi-judicial bodies have led to the formation of several communities or clusters. Thus, while the idea of a general prohibition of amnesty has become mainstream in the human rights movement, some courts have adopted more nuanced approaches that leave room for the possibility of well-crated amnesties as an exceptional mechanism of transitional justice in certain contexts. The thesis concludes by developing a framework for the judicial examination of future amnesties.