During Uruguay’s national election Sunday, voters were also asked to decide whether to overturn an existing amnesty law that protects military and police personnel accused of crimes committed during the 1973-1985 military junta.

By Hermione Gee and Karl Dowling

Although the measure failed to pass, Uruguay’s amnesty law is an ongoing cause for controversy in the country and presidential candidate José Mujica has vowed to overturn the law if elected.

Mark Freeman is an expert on amnesty law and author of the forthcoming book, Necessary Evils: Amnesties and the Search for Justice. He spoke to the IJT’s Hermione Gee about today’s shifting attitudes towards amnesties.

How are amnesty laws applied?
Amnesty laws have always been a quite controversial topic, especially today in the era of the International Criminal Court (ICC). Historically, amnesty was used to actually draw a line in the sand in terms of the past, to basically say there were some terrible things that happened in the past but for the sake of our society’s future we are not going to look back but look forward. But things have really shifted, in the past decade in particular. In fact it’s almost a sea change, and today amnesties are generally considered - especially if they cover crimes against humanity, war crimes and genocide - to be unacceptable by, among others, the United Nations Secretariat.

And how would you account for that sea change?

It is two things I think: the community of international lawyers as well as the human rights movement. And those involved in international justice have been the primary movers of this change […] along with the UN Secretariat. In the past the [Secretariat] has been much more willing to facilitate amnesties as part of reconciliation and transition processes in countries. But very shortly after the adoption of the Rome Statute [it] completely shifted its approach. [However] there’s a very large group in countries that are still mired in conflict or are ruled by dictators, that don’t necessarily always share that view. In fact, there’s been a tension because, while the [ICC] represents one kind of approach to dealing with major crimes that took place in the past, there’s also been tension between that view […] and the view that sometimes amnesty has a useful role when it’s adopted as a sort of last resort.

Do you think the question of amnesty laws is a legal or political issue?
It’s both. In terms of the law, it’s not as black and white as it’s often presented. But, whatever the law says, there’s no question that amnesty is also a policy issue. It’s about the price that an international community might be willing to pay in seeking to balance, on the one hand the collective interests at a national level in peace and democracy, [and] on the other hand the very real rights that victims have also under international law and usually under domestic law to have their day in court. In my mind it’s always both, and I personally have always favoured a case by case basis to seek to balance the different moral, legal and policy considerations. There’s huge numbers of human lives at stake either way you decide to go.

And do you think there are any crimes for which amnesty just shouldn’t be considered?
I don’t think that societies are well served by rigid rules that take amnesty off the table because, potentially, you can put a society in a situation to [subject] victims [to] ongoing victimisation as a result [of] saying we won’t accept amnesty of this particular type. From a human rights perspective one ought to care as much about prevention as punishment.

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Listen to a longer version of the interview here: