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San Jose, Costa Rica – On a full day of witness and expert testimony in the Inter-American Court of Human Rights (IACtHR, Court), the case of Brewer-Carías v. Venezuela came to an end with closing arguments from the petitioners, the state, and the Inter-American Commission on Human Rights (IACHR, Commission).

The case, which involves the criminal trial in Venezuela of political dissident Allan R. Brewer-Carías, focuses on the alleged violation of his rights to judicial protection and an impartial and independent trial under Articles 8(1) and 25 of the American Convention on Human Rights (Convention). During Wednesday’s expert testimony, one expert noted that the Special Amnesty Law issued on December 31, 2007, by President Hugo Chávez should have extinguished the case against Brewer-Carías and that the discriminatory application of the law is contrary to international standards. The Venezuelan government, however, argues that due to Brewer- Carías’ absence from the country when the law was passed, and the ongoing nature of his criminal trial in Venezuela, the amnesty law does not cover his case. However, the amnesty law has been applied to other individuals whose case was in the same procedural posture as that of Brewer-Carías. The status of amnesty laws on an international level is unclear, and whether the Venezuelan amnesty law complies with international standards is a contentious matter. Under Article 29 of the Venezuelan Constitution, only amnesties for violations of human rights and crimes against humanity are prohibited.

When Hugo Chávez returned to power after the April 2002 coup d’etat that briefly unseated him, he established a Special Parliamentary Commission to investigate and prosecute the perpetrators of the coup. The investigations led to the arrest, trial, and imprisonment of coup leaders as well as those who claimed no involvement in the coup, including Brewer-Carías. In 2007, while there was a pending decision on Brewer-Carías’s appeal to nullify proceedings against him, Chávez announced the Special Amnesty Law Decree. The law effectively dismissed all charges against accused participants and those under investigation for crimes connected to the 2002 coup. Brewer-Carías, however, was prevented from enjoying the same benefits of the law. The state reasoned that, since he was not present in Venezuela to fight the charges against him, he was not covered under the amnesty law despite his presence in the state for the first several years of the investigation and his cooperation with prosecutors. Former Venezuelan judge and attorney Jésus Ollarves provided expert testimony in the IACtHR hearing on Wednesday and testified that the law is discriminatory in nature and therefore contradictory to international law. The Venezuelan government insists that the law does not discriminate on prohibited grounds. In response to Ollarves’ testimony, the state accused Brewer-Carías of being a fugitive from Venezuela and stated that the law cannot cover him because he is not present in the country.

Amnesty laws are generally controversial under international standards and are legitimate only if they apply to crimes that a state has no international requirement to prosecute or extradite for prosecution. Both the Commission and the Court have found that amnesty laws granting impunity for serious human rights violations—such as crimes against humanity, war crimes, and torture—are incompatible with obligations under the American Convention for Human Rights. However, a state, as the enforcer of its own laws, may provide amnesty to its political opponents. In response to questions posed by the UNROW Human Rights Impact Litigation Clinic, Professor Juan Méndez, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and one of the attorneys for Brewer-Carías in the IACtHR, notes that international law remains mostly silent on amnesties for political crimes. However, Additional Protocol II to the Four Geneva Conventions provides that states may grant “the broadest possible amnesty to persons who have participated in the armed conflict” at the conclusion of internal hostilities. Méndez explains that this provision has been interpreted to cover amnesty for armed uprisings against the state, such as sedition or rebellion, but does not cover war crimes or crimes against humanity.

Venezuela’s constitutional restriction on amnesty laws follows these international standards and does not grant amnesty to those accused of international crimes. The question remains, however, whether Venezuela’s amnesty law is per se discriminatory because it did not cover accused persons located outside of Venezuela when the law was passed. Conditional amnesties could be permissible under international law, although the standards are unclear and international tribunals and quasi-judicial mechanisms have not authoritatively ruled on permissible conditions. In South Africa, for example, amnesty from prosecution was provided for “acts, omissions, and offenses associated with political objectives and committed in the course of the conflicts of the past,” but only after the accused had made a full disclosure to the Truth and Reconciliation Commission. This conditional amnesty provision is generally compatible with international standards.

The type of conditionality found in South Africa, however, does not mirror the restrictions placed on the Venezuelan law that are based merely on location and procedural posture of the accused’s case. In a conversation with UNROW, Méndez noted that “a condition based on the procedural status of each criminal defendant would be discriminatory because the defendant is not in control of that status and because it does not make sense to decriminalize the behavior for some defendants and not others, solely on the basis of whether and how they are fighting charges.” The IACtHR is unlikely to adjudicate on Venezuela’s amnesty law—as it focuses on judicial protection and the issue of impartial trial—thus, the question of international standards for amnesty laws will remain up for debate; however, Brewer-Carías will likely learn the outcome of his hearing in the coming months.

* The writers are members of the UNROW Human Rights Impact Litigation Clinic observing the hearing of Allan R. Brewer Carías v. The Bolivarian Republic of Venezuela in the Inter-American Court of Human Rights. The staffs of the UNROW Human Rights Impact Litigation Clinic and the Human Rights Brief contributed additional research and editing in Washington, D.C.