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

Abstract The use of amnesties in transitional justice remains a contentious issue. The fight against impunity at the international level has left little room for the application of amnesties for international crimes and human rights abuses. Nevertheless, amnesty measures continue to be 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 subsequent 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 alternative 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 addressed the discussion of amnesties when they are part of wider efforts to bring peace, reconciliation, and democracy.