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  • The Developing Jurisprudence on Amnesty
  • Naomi Roht-Arriaza (bio) and Lauren Gibson* (bio)

I. Introduction

Transitional justice has been a troubling human rights issue. How should societies emerging from periods of grave human rights violations frame the relationships among truth, justice, and reconciliation? Some pose the issue as a difficult balance between punishment and reconciliation, 1 while others see truth or, alternatively, justice, as a precondition for reconciliation. 2 Human rights advocates generally have adopted the latter position, without clearly defining under what conditions and through what methods justice should be achieved.

International law and international lawyers have played an important role in defining the terms of the debate on transitional justice. The paths chosen by states are now viewed as issues of international concern, rather [End Page 843] than solely domestic matters. In the last ten years, there has been a sea of change, prompted both by the end of the cold war, and by recognition that failure to come to terms with past cycles of violations may lead to future violations. International human rights groups now routinely demand and assess accountability for past violations, and anti-impunity measures are no longer simply a question of national choice. In the United States, for instance, accountability is announced as a mainstay of foreign policy, especially in situations of transition. 3 US State Department Country Reports report impunity as a major problem in a number of countries. 4

International human rights bodies regularly call for investigation, prose-cution, and redress for victims. Increasingly, such bodies find that domestic blanket amnesties precluding both prosecution and civil redress violate states’ obligations under international and regional human rights treaties. 5 The Ad Hoc Tribunals on the Former Yugoslavia and Rwanda 6 have helped advance human rights by signaling, at least in theory, that certain international crimes must be prosecuted. Additionally, the creation of an International Criminal Court is finally firmly on the agenda, with a Diplomatic Conference proceeding as this article goes to press.

Nonetheless, it is hard to gauge the impact of these changes at the domestic level. International law takes effect through a number of routes. The most direct route is through the decisions and views of international organs; however, these may have limited enforceability at the domestic level. A second route is through the incorporation of international law into [End Page 844] the domestic legal system through each country’s own constitutional arrangements. In many states, especially in Latin America, constitutions provide that treaties are directly incorporated into domestic law, often with a superior status to conflicting domestic statutes. In others, like the United Kingdom, treaties become part of domestic law only when Parliament approves implementing legislation. Incorporation into domestic legal systems then allows international law to be adjudicated, and enforced, by local courts.

Another possible route to domestic incorporation is more indirect. It involves the diffusion of international norms into the domestic arena through political and legal discourse, the language in legal arguments before domestic courts, and by local political and legal actors. 7 One measure of the impact of international law principles, but the most difficult to trace and document, is precisely how well they effectuate this indirect transfer into the national sphere.

One particularly troubling aspect of transition is what role the existing legal system can and should play. Courts in newly constituted or reemerging civilian regimes must contend with a legacy of a lack of independence, ties to the old regime, mistrust, fear and corruption, or the inexperience of newly appointed personnel. Under these conditions, some have suggested that courts are not a suitable vehicle for doing justice. 8

To date, there has been little study of the permeability of international law-based rules and ideas of accountability into the jurisprudence of national courts. In particular, to what extent have these rules and norms influenced courts, when asked to rule on the legality of measures to limit accountability, in countries where massive human rights violations have taken place? Which arguments have been successful over time, and which have not? A detailed study of the court decisions in this area can help advocates refine their arguments, and help scholars evaluate to what extent, and on what terms, emerging...

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