Amnesties in transitions from armed conflict to negotiated peace: the State obligation to investigate, prosecute and punish serious human rights violations before the Inter-American Court of Human Rights

• Ano de defesa: 2017
• Autor(a) principal: Revello, Viviana Palacio
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: eng
• Instituição de defesa: Biblioteca Digitais de Teses e Dissertações da USP
• Palavras-chave em Português: Amnesties; Anistias; Armed conflict; Conflito armado; Corte Interamericana de Direitos Humanos; Direitos humanos; Human rights; Inter-American Court of Human Rights; Responsabilidade internacional do Estado; State international responsibility
• Link de acesso: https://www.teses.usp.br/teses/disponiveis/2/2135/tde-21082020-025830/

This work discusses exonerations and limitations from criminal liability represented in amnesties enacted at the end of the hostilities of a non-international armed conflict in the light of standards of human rights protection and State international responsibility. In 2012, Judge García Sayán appended a Concurring Opinion in the Case of the Massacres of El Mozote and nearby places v. El Salvador from which some legal scholars have claimed the emergence of some awareness on the part of the Inter-American Court of Human Rights on tensions in transitions from armed conflict to negotiated peace justifying a reassessment of the State obligation to investigate, prosecute and punish serious human rights violations in these specific transitional contexts. Defining the existence of this alleged reassessment gains in importance for the upcoming transition in Colombia. Amnesties are discussed from three approaches: amnesties derived from Article 6(5) of 1977 Additional Protocol II to the Geneva Conventions of 1949; amnesties for serious human rights violations; and amnesties exonerating partially and conditionally from criminal liability, based on the analysis of 2016 Final Agreement for the Termination of Conflict and the Construction of a Stable and Lasting Peace between the State of Colombia and FARC guerrilla group. It is concluded that there is a well-established condemnation for total amnesties for serious human rights violations and international crimes, but amnesties exonerating partially and conditionally from liability require a cautious approach. Selection and prioritization attending the seriousness of the crime and level of responsibility of the offender do not find support in the Inter-American Human Rights System, but alternative penalties and reduced sentences, provided that rights of the victims to truth, reparation and non-recurrence are fulfilled and certain reasonable degree of proportionality is maintained, may be accepted.