In search of well-crafted amnestiesn: The emergence of a new jurisprudence on amnesty

The use of amnesties in transitional justice remains a contentious issue.
The fight against impunity 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. This
paper argues that the judicial discussion of amnesties under international
law has followed dynamics of path dependence, where initial decisions
adopted in very specific contexts have strongly determined the following
treatment of amnesties in completely different situations. The influence of
early decisions rejecting blanket amnesties, in the aftermath of autocratic
regimes in Latin America, pulled domestic and international courts
towards a general rejection of amnesties. However, in more recent years,
transitional justice ideas have influenced the trajectory of the discussion
on amnesties, opening courts to the permissibility of conditional and
negotiated amnesties accompanied by alternatives mechanisms of
accountability. Mapping the judicial dialogue on amnesties, this paper
shows a cautious shift in the approach to conditional amnesties. This is
significant, because international courts have mostly engaged with the
most problematic amnesties, leaving some uncertainty around the way
conditional amnesties enacted as part of complex transitional frameworks
will be evaluated. Reading a significant number of decisions from different
jurisdictions, this essay, aims to shed some light on the way domestic
courts have address the discussion of amnesties when they are part of
wider efforts to bring peace, reconciliation and democracy.