The Role of the IACHR in Overturning Amnesty Laws in Latin America

• In Event: Critical Approaches to Transitional Justice and Reconciliation

Abstract

This paper considers the impact of one of the Inter-American Court’s most consequential judgments, Barrios Altos v. Peru. In this 2001 judgment, the Inter-American Court declared amnesty laws to be a violation of international law and applied its ruling to all member-states, not just Peru. Amnesty laws exemplify the tensions between the Inter-American Court's enforcement and norm-setting powers: they are difficult to overturn, for a variety of domestic legal and political reasons, and the Court could have avoided engaging with this quagmire. However, it chose to take a strong stance against impunity, and in doing so, created not only new jurisprudence on the legality of amnesty, but also opportunities for domestic courts to adopt its standards, ultimately expanding access to justice in newly transitioned democracies. This paper traces the various responses across several states, from campaign promises to overturn the law (El Salvador), to reinstating the amnesty law by declaring the law repealing amnesty unconstitutional (Uruguay), to diffuse compliance --- overturning the amnesty law even before being asked to do so by the Inter-American Court (Argentina). The changing practice of amnesty laws since 2001 in Latin America demonstrates that even when enforcement is middling at best (Peru, for example, has yet to comply with the Barrios Altos judgment), the Inter-American Court can still positively effect change in human rights practices of its member-states.

Author

• Francesca Parente, Christopher Newport University