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| Victor Prado Saldarriaga - Justice of the Supreme Court of Justice of Peru. |
The central presentation of this panel was given by Victor Prado Saldarriaga, judge of the Supreme Court of Peru. He began by echoing some of the points made by the keynote speaker, Juan Mendez about the right to justice. He remarked that the international doctrine against impunity is born from certain basic principles: the fundamental right to the truth; the right to reparation; and the right to judicial remedy.
Dr. Prado Saldarriaga emphasized that amnesties used for reconciliation after violent conflict should not be constructed as impunity mechanisms preventing the prosecution of crimes against humanity.
He then described three types of amnesty law that have been traditionally used in Latin America: (1) traditional, (2) blanket or self-amnesties, and (3) negotiated amnesties. The last two types are those most commonly misused to grant immunity for crimes against humanity.
He used his experience in Peru, where he was one of the judges that sentenced former president Alberto Fujimori, to illustrate the uses of improper amnesties. In Peru, amnesty was given to members of the army for any crimes that could have been committed in the fight against terrorism. Congress prevented judges from protecting the constitution, forcing them to apply the amnesty without any questioning.
View Victor Prado Saldarriaga's presentation (PDF file)
Gustavo Gallon, director of the Colombian Commission of Jurists, spoke next. He focused first on the question of why some crimes can be amnestied and others cannot.
He explained that the state is entitled with judicial power and therefore has the right to give amnesties for crimes committed against itself. However, the state cannot forgive crimes that have been committed against others: crimes against humanity affect rights that the state must guarantee, not derogate. Therefore, the state cannot forgive them.
He discussed the Colombian experience, where the massive violations of a civil war at the end of the 40s received an amnesty, laying the foundation for more violations. The use of amnesties for human rights violations has continued –openly or in a hidden manner. Starting in 2002, with the negotiations between the Colombian government and paramilitary groups, the government passed legislation that effectively impeded the effective investigation and prosecution of mass crimes. This has resulted in a climate of impunity and continued violations.
Gilda Pereira de Carvalho, Deputy Attorney General and Federal Attorney for Citizen Rights of the Public Prosecutors Office, spoke next.
She focused specifically on Brazil’s amnesty law. She explained that the law was a negotiated amnesty. Unlike other countries in Latin America, the government created the law without making explicit the types of crimes it covers; the interpretation of the amnesty has resulted in a situation of impunity to state agents.
She argued that Brazil should implement the decision of the IACHR about Brazil’s amnesty law (“Gomes Lund v. Brazil”) and refrain from acting against its international obligations. She reminded the audience that there is no statutory limitation to crimes against humanity and they must be investigated, prosecuted and punished.
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| Debate moderator Marlon Weichert - Federal Prosecutor for São Paulo State |
The final panelist was Deisy Ventura, professor at the Institute of International Relations and coordinator of Idejust, a research network. She focused on Brazil’s international obligations. Brazil is a party to the Rome Statute and to the IACHR, yet the Supreme Court (which validated the amnesty law in a decision last year) is not taking this jurisprudence into account.
The discussion focused on how Brazil’s amnesty law can be interpreted and Brazil’s
international legal obligations.
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