The Legality of Pardons in Latin America

[Alonso Gurmendi is Professor of International Law at Universidad del Pacífico, in Peru.]

In recent months, most commentaries coming out of South America have focused on the Colombian Peace Agreement with the FARC. There is, however, another post-conflict country positing interesting legal questions. In parallel to Colombia, Peru has been engaged in its own debate over whether international and domestic law permit the pardoning of international crimes in case of serious health problems of a prisoner; specifically, former autocratic President Alberto Fujimori.

This post is divided into two parts. Part I will review how Colombia’s experience with transitional justice has influenced the Court’s approach to the prohibition of amnesties and other limitations of responsibility for international crimes. Part II will apply and compare these findings to humanitarian pardons, as discussed in Peru. I will argue that the connection between both situations may end up fundamentally changing the approximation of the Inter-American system to prison benefits such as pardons, forcing it to accept a few very tightly knitted exceptions to what is an otherwise strict preference against leniency in punishment and early release of gross human rights violators. These new developments, however, are still unlikely to help Mr. Fujimori’s case.

1. Some Context

To understand the debate surrounding Fujimori’s hypothetical pardon, one must first comprehend the underlying case that landed him in jail. Fujimori was President of Peru between 1990 and 2000. At that time, Peru was fighting the Shining Path –a Maoist terrorist group- in a conflict that would ultimately cost the country an estimated 65 thousand lives. Two years into his term, Fujimori led a “self-coup”, directing the military to close Congress, effectively ruling by decree for a period of nine months, setting up the basis for his decade-long autocratic government and approving harsh counter-terrorism laws that destroyed due process guarantees.

Among his most shameful practices was the creation of a death squad called “Grupo Colina”. On November 1991 and July 1992 respectively, Colina carried out the two most well-known extra-judicial executions of the Fujimori era: the Barrios Altos and La Cantuta massacres. In Barrios Altos, a group of civilians were forced to lie on the floor and then shot point blank, resulting in the killing of 15 people and the injuring of 4. In La Cantuta, a group of university students and two professors were forcefully removed from their homes and secretly executed.

In 2009, the Peruvian Supreme Court found Fujimori guilty of ordering the Barrios Altos and La Cantuta massacres. Given that Peru did not regulate international crimes, however, the Court was not able to condemn Fujimori for crimes against humanity. Instead, in a rather controversial passage (¶711), it decided to condemn him for the domestic crime of murder but attaching to it international consequences. Thus, Fujimori’s sentence would be unaffected by statutes of limitations and required a punishment proportional to its gravity. He was sentenced to 25 years of jail time.

Since then, and despite being placed in a uniquely well-kept prison –considering Peruvian standards- Fujimori’s health has been progressively deteriorating. He has been diagnosed with hernia, hypertension, tachycardia, depression, and, most notably, tongue cancer. His lawyers claim that prison –no matter the conditions- is not the proper place for him to heal. His many opponents claim instead that his “golden prison” has everything he needs to be treated, and that he should serve every single day of his sentence.

2. The Legality of Pardons, Explored

The Inter-American Court’s longstanding jurisprudence on the illegality of amnesties is one of its most well-known contributions to international human rights law. Fittingly, it started in 2001, precisely with the Barrios Altos case, where the Court annulled an amnesty law favoring Colina members. In one of its most well-known paragraphs, the Court stated that:

“[A]ll amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they intend to prevent the investigation and punishment of those responsible for serious human rights violations” (¶41).

Through the years, the Court slowly but steadily began to expand the Barrios Altos interpretation to go beyond just amnesties. In July 2004, in Hermanos Gómez Paquiyauri v. Peru, the Court noted that States “must also abstain from resorting to measures such as amnesty, extinguishment, and measures designed to eliminate responsibility, as well as measures that seek to impede criminal prosecution or to suppress the effects of the conviction” (¶232, highlight added). While not expressly covering pardons, this passage seems to imprint the notion that convictions cannot be cut short. Next year, in Gutierrez-Soler v. Colombia, the Court would, for the first time, mention pardons, slightly shifting the drafting of the Gómez Paquiyauri rule, adding: “the State shall refrain from resorting to amnesty, pardon, statute of limitations and from enacting provisions to exclude liability, as well as measures aimed at preventing criminal prosecution or at voiding the effects of a conviction” (¶97, highlight added).

The Court never offered a reason for this expansion. The connection between impunity and pardons is, after all, not obvious: the punishment exists, it is just reduced. Moreover, while later judgments kept the wording of “measures aimed at voiding the effects of a conviction”, they noticeably removed the express mention to pardons (See e.g. Gómez-Palomino v. Peru, ¶140). In fact, in the 2006 Almonacid Arellano v. Chile, perhaps the most important case on the illegality of amnesties since Barrios Altos, the Court not only continued to omit an express mention to pardons, but, surprisingly, entirely removed the wording in Gutierrez-Soler, regarding “measures aimed at voiding the effects of a conviction”. In this case, the Court simply cited the general Barrios Altos standard applicable to “all amnesty provisions” and concluded that “States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions” (¶114). Since then, the Court has not made any mention to pardons or suppression of convictions.

It is beyond the scope of this post to discover the actual reasons behind this short lived express mention of pardons. Suffice to say that, in the years since Almonacid, the Court has faced newer challenges with regard to punishment, which complicated its analysis. In 2005, the Colombian Government approved Law 975, also known as Justice & Peace Law. This law granted special benefits to members of illegal paramilitary forces who collaborated with justice through an offering of truth or reparations, even in cases of gross human rights violations, in exchange for their de-mobilization. Benefitted individuals would see their sentences reduced and replaced with an “alternative punishment” of 5 to 8 years. The scheme, which was later used as a model for the current Colombian Peace Agreement with the FARC, was opposed by human rights groups arguing that it may lead to impunity and hinder the right to truth.

In the 2007 La Rochela v. Colombia, the Court dealt, for the first time, with transitional mechanisms involving a softening of justice in exchange for peace. The dilemma at the heart of the Court’s jurisprudence was unavoidable: The Colombian Justice & Peace Law was, after all, most definitely, a “measure aimed at voiding the effects of a conviction”. It effectively suspended convictions and replaced them with softer punishments but –and here is the key point- in exchange for a concrete humanitarian advantage. This was a phenomenon the Court had never had to deal with in the past and it fundamentally changed its approach to punishment for years to come.

In La Rochela, instead of annulling the law, the Court set out several preconditions that the Justice & Peace Law would have to comply with in order to meet Inter-American standards (¶192). The Court placed heavy emphasis in the role of truth and reconciliation, setting out a standard for determining the relationship between proportionality and leniency in punishment. It thus stated that “[e]very element which determines the severity of the punishment should correspond to a clearly identifiable objective and be compatible with the [American] Convention [on Human Rights]” (¶196).

This passage is of remarkable importance, as it gives precisely the kind of explanation that Gutierrez-Soler failed to provide: when exactly can reduction of punishment constitute impunity and when can it not. Hence, for the Court, peace negotiations to end conflict would indeed constitute a “clearly identifiable objective compatible with the American Convention” that warrants a softening of proportionality. This conclusion has been gaining traction in the Court’s jurisprudence, particularly thanks to the Colombian experience with the FARC. For example, in the 2012 El Mozote v. El Salvador case, not very long after the initiation of negotiations with the FARC, five judges appended a Concurring Opinion, very much tailored to fit Colombian requirements. They stated that, at the end of an armed conflict, “it is necessary to devise ways to process those accused of committing serious crimes such as the ones mentioned, in the understanding that a negotiated peace process attempts to ensure that the combatants choose peace and submit to justice”, including alternative or suspended sentences (¶30).

The findings in La Rochela and El Mozote, however, do raise the question of whether there could be other “clearly identifiable objectives compatible with the American Convention” that may warrant a softening of proportionality. So far, the Court has been unwilling to offer any such example. In 2010, in the case of Cepeda v. Colombia, the Court addressed the political assassination of an opposition Senator by two sergeants of the Colombian Army who received copious prison benefits, ultimately reducing their 43 year sentence to 11 and 12 years respectively. The Court established that “[u]nder the rule of proportionality, in the exercise of their obligation to prosecute such serious violations, States must ensure that the sentences imposed and their execution do not constitute factors that contribute to impunity, taking into account aspects such as the characteristics of the crime, and the participation and guilt of the accused”. (¶150, emphasis added). The Court did not take the opportunity to expand its proportionality case-law, but rather maintained its pre-La Rochela distaste for early release intact.

Something similar happened in July 2012, when the Peruvian Supreme Court controversially reversed its previous ruling treating the crimes of Grupo Colina as crimes against humanity, and reduced the punishment given to its members. The leader of Colina, Santiago Martin Rivas, saw his jail time reduced from 25 to 22 years. Other members got reductions of between 3 and 5 years, and one individual received a 7-year reduction. The Inter-American Court addressed the situation two months later, in September 2012, arguing that:

“While even in cases of gross violations of human rights, international law admits that certain circumstances or situations may generate an attenuation of the punishment or a reduction in penalty, such as effective collaboration with justice through information that may allow for the resolution of the crime, the Tribunal considers that the state will need to ponder the application of such measures in the present case, given that their undue granting may eventually lead to a form of impunity” (¶57, free translation).

The Court therefore repeated its original La Rochela formula, whereby proportionality can be reduced in exchange for a specific benefit, such as in the case of plea bargains. No further explanation of the La Rochela standard was offered, yet again.

It is at this point that the question of health becomes relevant: How should a post-La Rochela Court handle a hypothetical pardon for an ill inmate condemned for serious human rights violations? Could health be seen as another clearly identifiable objective compatible with the American Convention that warrants a softening of proportionality? And, if so, under what standards? I will address these issues in Part II.

As seen in Part I, Colombian transitional justice mechanisms have played a key role in the evolution of the Inter-American Court’s jurisprudence on proportionality of punishment. In this second part, I will analyze whether the Court’s Colombian case-law can influence Peru’s discussion regarding a hypothetical humanitarian pardon for former autocratic President Alberto Fujimori. In particular, my objective is to analyze whether, in the same vein as peace negotiations, poor health can constitute a viable reason to mitigate the proportionality of punishment principle.

In this discussion, health in old age provides an interesting test for the La Rochela standard, and could potentially be a determining factor with significant impact in the Court’s future. After all, can early release still be considered an irrisory punishment leading to impunity when the individual in question suffers from serious illness or infirmity? And if so, how sick must he or she be before a pardon can be granted? This is not an easy question to answer. Humanitarianism is just as much a part of international criminal law as retribution, and it will likely constitute another crossroads for the Court in the near future.

In 2012, the United Nations High Commissioner for Human Rights (E/2012/51) explored “whether the continued incarceration of older persons is a disproportionately severe punishment”, stating that “[c]onsidering the purposes of punishment –retribution, incapacitation, deterrence, and rehabilitation- there may be little justification for many older persons’ continued incarceration in the prison system in certain instances” and that “alternative forms of punishment may be preferable based on the financial, practical, and human rights considerations involved” (¶61). That same year, Human Rights Watch arrived at similar conclusions, claiming that “while a prison term may have been proportionate at the time imposed, increasing age and infirmity may change the calculus against continued incarceration and in favor of some form of conditional release”, even in cases of acceptable conditions of confinement. These arguments indicate that health may very well be another “clearly identifiable objective compatible with the American Convention” that may warrant a softening of proportionality. The Court, however, has never said so.

In any case, it will be very difficult for the Court to maintain its silence for much longer. Fujimori is not the only aging human rights violator in the region and discussions of this sort will only increase with media attention. The Court will need a standard that allows it to keep its reputation as both an enemy of impunity and a custodian of human rights, while at the same time keeping a consistent and fair-minded jurisprudence. The Court is, after all, not the only one analyzing the Colombian Peace Agreement. Some very respectable sources have criticized it, expressing, as Human Rights Watch does, “very serious concerns that the justice provisions of the accord could result in confessed war criminals not receiving meaningful punishment for the grave crimes for which they were responsible”.

If, as available evidence seems to suggest, the Court wishes to side with the agreement, it will need to address the legitimate complaints of Fujimori’s supporters who raise the question of why should a FARC war criminal receive an 8-year limited mobility sentence, while their cancer-prone leader is already serving his 11^th year of jail-time. Moreover, since Peru never needed a peace agreement, but rather defeated the Shining Path through military means, there are genuine concerns that the Court’s findings may end up producing a system where it is more convenient to settle wars than to actually win them. In other words, if the Court is willing to balance peace and justice, it should take a concrete stance on whether health and justice can be balanced in a similar fashion. And at least from the Court’s own jurisprudence, it seems the question is not so much if health can soften proportionality, but rather when.

One good place to seek guidance for the formulation of a standard is the experience of international tribunals with early release of prisoners. This, of course, does not mean that the Inter-American Court would have to follow the same rules as the ICTY or the ICC (especially considering some of their limitations), but it does offer a good starting point for the Court to build upon its own standard.

The ICTY Rules of Procedure and Evidence include provisions stating that “in determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor” (Rule 125). Article 110 of the Rome Statute, in turn, incorporates a 2/3 of time served trigger for initiation of early release proceedings, which require the ICC to review similar factors, related to collaboration with justice, disassociation with the crimes, reparations, and lack of health or advanced age.

The ICC tested this standard in 2015, denying early release to Thomas Lubanga. The Panel concluded that Lubanga only satisfied the requirement of possible resocialization (¶53) and considered that there was no justification for his release (¶77), particularly given the fact that Lubanga showed no indication of any remorse for his crimes and had provided no significant assistance to the Court (¶64).

Upon these findings, a humanitarian pardon could potentially be consistent with the American Convention on Human Rights, so long as some specific requirements are met. For one, infirmity due to old age or illness needs to have rendered the purposes of punishment impossible, as seen above. As per La Rochela, some general rehabilitative or even transitional purpose needs to be advanced as well. For example, the inmate must have disassociated from his crime and accepted his culpability. The pardon could also be tied to a requirement of collaboration with justice and an offering of full truth. In this sense, if reclusion in a prison can no longer serve any purpose given the individual’s health problems and he or she is no longer defending his crimes, a humanitarian pardon could be consistent with Inter-American human rights law.

These considerations would also need to be evaluated taking into account time served and domestic law. Indeed, a pardon for an individual that has served 2/3 of his or her sentence is more likely to be accepted than one for someone who has only served 1/3. Likewise, even if all of these requirements are present, domestic law would still need to regulate such pardoning, since it is by definition a discretionary prerogative of the Government.

Now, while this change in its approach to proportionality is born out of the Court’s own findings, it may nevertheless be poorly received by the Latin American human rights community, very much used to working from an expanded understanding of Barrios Altos, that leaves little chance for the early release of jailed international criminals. It will be important for human rights advocates to understand that the process started by La Rochela is a direct response to the human rights challenges of the 21^st century, just as much as Barrios Altos was a response to the challenges of the 20^th. A strong proportionality principle will still be the rule, but once one exception is allowed, it is to be expected that others will follow. One cannot give a blessing to lenient punishment in some exceptional circumstances, while at the same time barring any lenity in punishment in other equally exceptional circumstances.

Moreover, it is still unlikely that this new approach would benefit Alberto Fujimori, who not only remains un-repented of his crimes, but does not seem to be in any form of terminal or extremely ill state that could render his sentence useless. Not to mention the many domestic legal hurdles his proposed pardon would need to face. If anything, other less media sensitive inmates may be benefited, in more justifiable circumstances. After all, one very significant risk Peru’s human rights community needs to avoid in these difficult transitional times is that of the black swan approach to justice, where rules are designed inductively, from a very specific case, and then applied generally. It is justice and humanitarian values -not keeping a specific autocrat in jail- that should inform progressive development of human rights.