St. Mary's Law Journal


The problem of amnesty for widespread human rights violations in the Americas illustrates the credibility gap in public international law. This Commentary reviews applicable standards and attempts to identify a minimum state response to past human rights violations. It also examines the question of amnesties, offers certain legal interpretations, and presents some criteria for an amnesty framework which might be reconcilable with the state’s international obligations. This Commentary’s aim is not to suggest amnesties are a proper response to the problem of past human rights abuses, however, it does acknowledge amnesties have so far been the most common response. It further recognizes the international community becoming increasingly involved in brokering or monitoring terms of transition. Such laws may gain a dangerous imprimatur of inevitability if not of legitimacy. Therefore, this Commentary articulates a less stringent, but defensible, interpretation of legal norms which might be demanded from governments and international bodies. This Commentary concludes by suggesting minimum requirements. The investigation should be the core of the remedy at issue. There are three components. First, an affirmative inquiry into the facts by the relevant authorities. Second, an opportunity for victims to come forth and tell their stories. Third, an adjudication of sorts—a formal finding of the facts and conclusions of relevant law. Amnesties have typically foreclosed the possibility of prosecution and have precluded civil remedies. Although politics may ultimately provide the opportunity for the ambitious undertaking suggested herein, legal application has its relevance as well. Political factors may determine how much can be accomplished; however, what is ultimately of greatest importance is for political space to be exploited to support the rule of law, even as the state absolves the guilty.


St. Mary's University School of Law