HUMAN RIGHTS: Advances in the Americas
Cantón, Santiago A., Americas Quarterly
Amnesty laws are often justified on the grounds that they will protect new and fragile democracies. Amnesties, according to this reasoning, avoid reopening painful wounds from the past and, when they are applied to former military leaders, ensure that the military will not be provoked again into extra-constitutional actions. But permitting those who may have been responsible for widespread killing to walk the streets without punishment ultimately undermines the rule of law.
If the massive and systematic violations of the past are not to be repeated, impunity must no longer rule. That message has been forcefully delivered in Argentina and Peru, two countries which suffered some of the most egregious human rights violations in recent years, thanks to trail-blazing actions by the hemispheric human rights process under the Organization of American States (OAS). Under the OAS system, newly elected governments have been bolstered in their efforts to seek redress for past crimes. The military regime that held power in Argentina between 1976 and 1983 was responsible for the deaths and disappearances of an estimated 9,000 to 30,000 people. Nevertheless, two laws, passed in 1986 and 1987, protected military officers and civilians from prosecution.
But those laws are now effectively dead letters. In 1992, the OAS Human Rights Commission declared in Report 28/92 that the two amnesty laws violated the American Convention on Human Rights.
This was a precedent-setting decision. Based on this ruling, the Argentine Supreme Court in 2005 declared that the amnesty laws were "inapplicable." That decision opened the door to prosecutions of senior military officers and civilians.
In Peru, justice is also just around the corner. In June 1995, under Law 26,479, the Peruvian Congress granted amnesty to military, police and civilian personnel implicated in human rights violations committed from 1980 until 1995. Congress acted just as two notorious cases were going to trial: the Barrios Altos case, involving the 1991 execution of 15 people by an "elimination squad" composed of members of the Peruvian army, and the torture and extrajudicial execution incident at Lima's La Cantuta University in 1992.
Peruvian human rights organizations took the case to the Inter American system. Both the Commission and the Inter-American Court of Human Rights determined that Peru's amnesty laws violated the American Convention on Human Rights and should be repealed. After the collapse of the Fujimori government in 2000, the Toledo administration reformed the law and established a framework for the prosecution of human rights violations. This opened the way for the trial and conviction of accused military officers.
The message is spreading throughout the region. In September 2007, the Chilean Supreme Court issued a crucial decision in the fight against impunity by approving Fujimori's extradition to Peru. …