The two speakers of the evening complemented each other well, as Christopher Hall provided a general and substantive background on statutes of limitation and Dr. Francesca Lessa illustrated the specific struggle to overcome amnesty legislation and to stop crimes of the 1973-85 dictatorship falling under statutes of limitation preventing their prosecution. Dr. Lessa was hereby able to draw upon her extensive knowledge in the field as well on her recent book, Luchas contra la Impunidad: Uruguay 1985-2011, that was launched in Montevideo on November 15, 2011, and has been received very positively.
After tracing the intellectual debate about statutes of limitation back to the 18th century, a debate that was between others driven by the British philosopher Jeremy Bentham, Christopher Hall took a very critical stance towards the justification of statutes that limit the capacity for prosecution of crimes. Differentiating between procedural and substantive arguments commonly forwarded in favor such as legislation, the speaker questioned their validity. For Hall neither procedural justification such as the decreased ability of witnesses to remember facts after time has passed, the increasing age of perpetrator nor do substantive reasons, such as the rehabilitation of offenders or the reconciliation of society validate the implementation of statutes of limitation. Locating their role in the realm of international law, the speaker showed that the international community has increasingly rejected such legislation by means of conventions and treaties.
Before referring to the most recent and surprising developments in regard to the 1986 amnesty law in Uruguay, Dr. Lessa illustrated the totalitarian nature of the Uruguayan civic-military regime. The Uruguay dictatorship has received little attention compared to the more brutal dictatorships in Argentina, Chile, and Guatemala; thus, it is often forgotten that the regime drove about ten percent of the small population into exile. The speaker explained how during the transition military pressure and a reluctant executive silenced initial investigatory efforts and disempowered the judiciary in the context of human rights violations by means of the 1986 amnesty law. Dr. Lessa illustrated how despite some advances in regard to accountability action after the change of the millennium, the derogation of the amnesty law on 27th of October 2011 happened in the aftermath of previously failed attempts to do so; the new law pre-empted many crimes from becoming statute barred only by a couple days. Despite her pleasure with recent developments, the speaker warned that the derogation could still be challenged on constitutional grounds or be circumvented by courts, and that many issues remain pending in the fight against impunity, including access to archives, the recuperation of former sites of detention for memory, and the identification of the burial sites of the disappeared.
On Tuesday OTJR committee member Francesca Lessa in collaboration with Christopher Hall, Amnesty International’s Senior Legal Advisor will be speaking on ‘Uruguay: Struggles against Impunity and Barriers to Justice for Crimes under International Law.‘ This will form the launch of Dr. Lessa’s recent book, Luchas contra la Impunidad: Uruguay 1985-2011 [Struggles Against Impunity: Uruguay 1985-2011], co-edited with Gabriela Fried. The seminar will take place in at 5 pm, Seminar Room D in the Manor Road building and we hope you can join us for drinks and snacks afterwards.
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#1 by Phil Clark on November 30, 2011 - 2:22 pm
We ran out of time during the Q&A for this seminar but I was interested to hear Francesca’s thoughts on one of the questions that arose briefly towards the end – namely, isn’t it a problem for anti-amnesty advocates that, in the Uruguay case, the population voted through the 2009 national plebiscite to retain the amnesty for past violators? I don’t know the ins and outs of that particular plebiscite (eg. how it was run, whether the result was guaranteed by the wording of the question, etc.) but how do those opposed to the use of amnesties wrestle with the fact that in certain situations amnesties have majority, democratic support? Similar issues arise in the Uganda case, where the momentum for the 2000 Amnesty Act came from popular support, as highlighted through civil society consultations and surveys, rather than from elites who wanted to insulate themselves from prosecutions. Given that most anti-amnesty advocates also advocate democratic rule and the need for free and fair elections, there’s a major tension here.
#2 by CHEAH Wui Ling on December 5, 2011 - 9:28 pm
Thank you, Jan, for the detailed summary. It sounds like a fascinating talk and I wish I had attended it.
My initial thoughts are similar to that raised by Phil in his comment regarding amnesties with democratic support. Transitional justice – especially in its original conceptualisation – is justified and assessed according to its ability to facilitate democratisation.
In addition, quite a few scholars recognise that there is yet to be a clear customary international law rule against statutes of limitations for international crimes. This issue was in fact much debated and contested by States during the ICC’s negotiations, and it may be argued that the relevant ICC provision applies only to the ICC’s regime.
#3 by Francesca Lessa on December 12, 2011 - 2:50 pm
The question of the Expiry Law and the two votes on it (1989 referendum and 2009 plebiscite) are rather sensitive matters in Uruguay. We could not discuss these in detail during the talk and I am glad we get a chance to do so through the OTJR debates.
The 2009 plebiscite on the Expiry Law was extremely controversial. The plebiscite happened on the same day as Presidential and Parliamentary elections. Voters wishing to annul the amnesty had to include a pink ballot (the so-called papeleta rosada) together with ballots for the Presidential and Parliamentary candidates. Those wishing to retain the law had to do nothing. Indeed, there was no inclusion of a ballot for those wishing to vote against the reform, those wanting to vote blank, or annul their votes. There was no differentiation among these three different votes, generating a situation in which many people failed to take a stand. Eventually, all the votes that did not include the pink ballot were counted automatically as votes against the nullification.
The 1989 referendum took place in a context of fear and threats from the government and the military; it was especially feared that the armed forces would carry out another coup should the result be in favor of overturning the amnesty. The situation in 2009 was, while very different in the sense that there was no threat of challenging democratic rule, again conducive to the law being retained. The plebiscite was initiated by civil society because the government was unwilling to repeal the amnesty. The project received little support from the political parties and presidential candidate Mujica only endorsed it in August 2008. During the electoral campaign and hundreds of public appearances, Mujica never mentioned the plebiscite. The spotlight was only on presidential and parliamentary elections, with slight consideration given to the papeleta rosada. I am not sure the 2009 is representative of reality. Before the vote itself, polls had 40% against the amnesty, 30% in favor and 20% undecided. The vote in 2009 did not reflect that and a 20% decided not to take a stand. I am not sure the 2009 result automatically translates into support for the amnesty; I think indifference played much more of a role.
While it is not possible to provide an exhaustive assessment of the result here, the voting system adopted and the lack of support for the amnesty’s nullification by politicians and parties, amongst other factors – including the fact that most Uruguayans have more pressing priorities in their lives – jeopardized the chances of its success.
I personally think that the plebiscite was not the best way to tackle the amnesty question. Regardless of the referendum and the plebiscite, the Uruguayan state has an obligation under human rights law to investigate and – if relevant – prosecute those responsible for past human rights crimes. I do not believe that questions of human rights should be subjected to a vote. Clearly, most Uruguayans are more worried about other pressing issues in their daily lives such as rising crime levels, unemployment, social questions – not the issue of the disappeared. Nonetheless, this does not exonerate the Uruguayan state from its obligations towards the victims of the crimes of the dictatorship and/or their relatives.
The Uruguayan President of the Supreme Court recently claimed that human rights belong to minorities and have to be protected “against the opinion of the majority”. I agree with him, the right of the families to know the truth about disappearances, and for societies to know about the secret and clandestine methodologies of state terror must be upheld. Exactly because there is a need to dismantle the lies of the past. And their right exists even if the majority disagrees or has different priorities.
I do not know enough about Uganda to comment meaningfully on it but from what you say it sounds like there is substantial popular support for the amnesty there. I do not think such support for amnesty exists in Uruguay.
In the Uruguayan case, the overturning of the amnesty was required because of the secrecy and denial that always surrounded the issue of past crimes, because of the impunity with which torturers and murderers operated not only inside Uruguay, but tracking down Uruguayans across the borders, disappearing them also in Argentina, Chile and Paraguay while in exile.
A few days ago, the human remains of missing teacher Julio Castro were found. He was a 68-year-old retired teacher who was tortured and executed in 1977. The dictatorship built a web of lies, arguing he had left for Argentina. More lies and denial followed under democracy. Till October this year, when his remains were found clandestinely interred on military land. His bones shattered three decades of lies. Even the military began to talk – albeit very very slowly.
Uruguay is a stable democracy, and all the conditions are in place for the victims to access justice remedies and know the truth. Lies such as the ones surrounding Julio Castro’s assassination persisted for long because of the widespread impunity and the persistence of the Expiry Law. I avoid making general statements in transitional justice as I think each case is so unique. I think the overturning of the amnesty was absolutely needed in Uruguay. But in Uganda, I leave it to the expert, you Phil, to say what would be best.
#4 by Stephen Oola on December 19, 2011 - 7:14 am
Thank you Francesca for educating us on Uruguay. I concur in toto with the points well made. It all points to one very important thing. Amnesty can play its part in enabling a society to go through a particular episode of social and political turmoil and emerge to a context where the amnesty becomes un-useful and should be complemented or followed up by other measures. The same points can and should be made for prosecution and indeed all other measures adopted by different societies to reckon with gross human rights violations.
What needs to be recognized by advocates for and against amnesty is that, like all other measures, amnesty has contexts where its most useful and has indeed has limitations in other contexts-something missing from the current discourse. There is therefore need to support amnesty just like other measures in such contexts with emphasis being on complementarity with measures such as documentation, consultation, compromise, and investigation where possible.
Another point was made by Phil, that Amnesties are different in many contexts. In Uganda the amnesty was asked for by LRA victims to be given to all perpetrators to stop their atrocities. This was after 15 years of violent armed insurgency that displaced over 2 million people to live in squalid internall displaced persons camps, conditions comparable only to concentration camps-more people where dying as a result of the conditions in the camps than actual violence by the insurgents. The LRA conflict had provided a context where nobody was sure of who was killing who – a classical context of impunity. So the amnesty in Uganda for example played a key role in ending impunity from both LRA and Government forces who were killing and raping at will. To many people within Uganda, this amnesty was the justice they wanted by then. Today people’s perceptions haven’t changed much partly because of the insurgency still continues and also the nature of the LRA fighters, the majority of whom were abducted children-abducted only because the State could not protect them. Secondly people are weary of a State hell-bent on a military solution to a political conflict.
The survey that Phil mentioned conducted by JRP actually found more support for the amnesty than anticipated. The significant recommendation therein was that more interventions now need to be done to reconcile returnees with the affected communities and that amnesty should be balanced out with comprehensive reparation programme for the affected population. This survey came in the aftermath of the first war crimes trial against an ex- LRA commander Thomas Kwoyelo before the International Crimes Division.
In our own study which we are currently conducting around the country, a National Reconciliation and Transitional Justice Audit, people have some pretty nuance take on the justice in amnesty. Many thought the ongoing trial of Kwoyelo was a mockery of justice. They said Kwoyelo is a victim just like many of his colleagues who now face an onslaught from American Commandos. They blamed the government for much of their sufferings. People asked for compensation, reconciliation, mato oput, presidential term limits, peace talks, return of their children, and ending corruption as their primary justice and what is needed to end impunity in this country.
In fact, even people from outside the LRA directly affected region were asking some tough questions: That why is the government of Uganda not applying for amnesty itself from the people affected by the conflict? Who should give amnesty to who? Who can forgive who for what?
So, the debate should continue but in a soberly way and context mindful!
#5 by Lino Owor Ogora on December 19, 2011 - 10:00 am
Hello all,
I am Lino from northern Uganda, working with the Justice and Reconciliation Project (JRP), an NGO dedicated to documenting and advocating for the justice needs of victims in post-conflict northern Uganda.
The Amnesty Act in Uganda, as Phil mentioned indeed resulted from popular support by the people themselves, particularly in regions such as northern Uganda which had been ravaged by over two decades of conflict.
But recently the relevance of the Amnesty Act was questioned after the trial of a prominent rebel commander was declared null and void by the constitutional court on the basis that he was entitled to Amnesty like other commanders who had been pardoned before him. This court ruling sparked off debate in Uganda and many people seemed to be divided.
The only problem was that the voices of the people who mattered most was not taken into consideration. These were the victims who have lived in the conflict zone and suffered the brunt of the conflict.
JRP therefore conducted a situational survey in Acholi-land to get people’s perceptions and opinions on the current Amnesty law. Over 99% of the respondents we spoke to stated that the Amnesty law was still relevant and should be retained. Many respondents however pointed out the need to make provisions for supporting victims and not just ex-combatants as the Amnesty Commission in Uganda currently does.
This situational brief can be accessed on: http://www.justiceandreconciliation.com/2011/12/to-pardon-or-to-punish-current-perceptions-and-opinions-on-uganda%E2%80%99s-amnesty-in-acholi-land/