Thursday, February 4, 2010

"General Considerations about Amnesty": Efraín Moncada Silva

In an editorial published in Honduras' La Tribuna, Efraín Moncada Silva, Honduran law authority and former member of the Zelaya administration, takes the opportunity to add to a series of commentaries he has pursued since amnesty was first proposed as part of the San Jose Accord. While, as he mentions, until it is published in La Gaceta, we do not have a text to comment on directly, Moncada Silva notes there are broader general principles we can discuss.

Moncada Silva starts with two key points: the nature of amnesty, intended to ensure public peace, has to be broad and general. Then he proceeds to draw out the fact that when a national law conflicts with an international treaty or convention, according to Article 18 of the Honduran Constitution, the international treaty or convention must be upheld.

Why is this important?

Because, as Moncada Silva notes
from this it follows that when the opportunity presents itself the concrete case [of amnesty] will have to be examined in the light of the Law of Amnesty that has been approved and the American Convention on Human Rights (Convención Americana sobre Derechos Humanos) or Pact of San Jose of Costa Rica and the Statue of the International Court, since even when the adequacy of the latter is complementary, it treats of a subsidiary critique, since the Court could assume a case if it considers that there is not the dispostion or capacity to act on a state level, or that the justice realized has obeyed the intent to remove the accused from their penal responsibility, has not been instructed in an independent or impartial form, or this has been in a manner incompatible with the intention to submit the person to the action of justice.
Translation: just because the Honduran Congress has passed an amnesty doesn't mean a case cannot be brought in the international court. Especially if the Honduran justice system shows partiality or an intention to absolve people of their responsibilities.

Moncada goes on to argue that technically, any amnesty needs to include both political and connected common crimes. After enumerating the crimes that are considered "political" in Honduran law (treason, compromising the external peace and security or dignity of the Nation, crimes against the form of government, terrorism, rebellion, and sedition), Moncada makes another sharp argument:
Definitely, the amnesty cannot include the crime of ordering, executing, or consenting to the expatriation of a Honduran because that is not a political crime
Why? because it is defined in Article 333, number 5, of the Penal Code, included in Chapter IV, Title XII, Second Book, which includes "crimes committed by functionaries against the exercise of the rights guaranteed by the Constitution".

And these, Moncada Silva says, are not political crimes. So much for absolving the Armed Forces of their guilt for abducting former President Zelaya.

Nor, Moncada says, is abuse of authority a political crime, since it is included under the heading "crimes against public administration".

Who is the target of this one? Roberto Micheletti himself, among others.

So. We all await with great anticipation the publication of the actual Law of Amnesty, to see how it was written, and what we can infer from that about who it hopes to preserve from prosecution. But meanwhile, Moncada Silva gives us reason to pause in the judgment of what this hasty amnesty law might actually imply in practice.


Anonymous said...

RAJ says "Then he [EMS] proceeds to draw out the fact that when a national law conflicts with an international treaty or convention, according to Article 18 of the Honduran Constitution, the international treaty or convention must be upheld."

I cannot agree with this conclusion, since Honduras could always take the expedient of withdrawing from the human race, under which condition international laws and treaties are irrelevant.


RAJ said...

I appreciate black humor as much as the next person, so the image of the Honduran government following isolationism to its logical conclusion is of course worth a wry smile. Not that it is impossible for a government to take a nation of people off the international playing field: think Myanmar; think North Korea. At least Porfirio Lobo Sosa, unlike Roberto Micheletti, transparently wants to be accepted back into the community of nations.

But there is a serious point to be emphasized here. It may seem like there is little potential for the contradiction between an amnesty law and Honduran constitutional commitments to international law and treaties. But even during the worst oppression of the de facto regime, a powerful part of the resistance was the group Lawyers Against the Coup d'Etat (Frente de Abogados Contra el Golpe).

What Moncada Silva is pointing out is that there will remain these legal openings. By pushing these points, even in instances like the case against the military officers responsible for the abduction of former President Zelaya, where the court ultimately manufactured an argument to absolve them, the public exposure of the coziness of the system will support the campaign for reforms of the system.

Anonymous said...

Oh, I think that the point I was making is quite serious.

World War II made it clear that the consequences of a breakdown of international order are so serious that all humankind must join together to enforce at least the broad outlines of human rights. That is, while we recognize that there are wrongs in any society, we know that when wrong becomes the rule rather than the exception, the consequences will spill over national borders and endanger us all.

When nations sign international treaties, they contain provisions that require that the nation harmonize its own law with that of the treaty. Where there is a conflict, the language of the treaty governs. Granted, this principle is being tested, glacially, by such events as the prosecution of Pinochet, and is not firmly established. Most of the time, the world simply averts its eyes.

But rather than there being a small potential for conflict between an amnesty and international law, I would say there's almost a guarantee of a conflict. The UN and the OAS have already declared that a crime was committed in the removal of Zelaya by force. It's very hard to see how the UN and OAS human rights reports can be read as anything other than criminal complaints.

All that remains is for the world to decide that it is going to practice what it has been preaching.

In that regard, I might point out that the next area of focus should be the international human rights bodies. Navi Pillay at the UN seems to be serious about her job, though I am less certain about the organization around her. I don't know about the OAS... the human rights group did, in my opinion, an adequate but not stellar job, pulling punches. On the other hand, since most of Latin America is nervous about intervention, it's possible that some encouragement of the human rights investigation could lead to sustained application of pressure for a genuine Truth Commission, rather than the sham Lobo evidently plans.

Myanmar and North Korea are, if I understand it, members of the UN in bad standing. That is, the governments are recognized as legitimate though not democratic. But Honduras was expelled from the OAS, which (since the OAS is essentially the UN subcontractor for the Americas) should imply that Honduras also be expelled from the UN. That, as far as I know, hasn't happened... but I think the rules require that it should be. So, there may be a subtle difference between the situations of Honduras and North Korea and Burma.

(Yes, it was black humor).


RAJ said...

We agree that accountability for the events since June 28-- and in particular, human rights violations-- is critical. I leave it to others to decide whether Honduras currently enjoys a less legitimate status than Myanmar or North Korea. What your comments underline for me, though, is that Hondurans who want to insist on accountability may well want to use the legal commitments implicit in their constitution to seek redress in international venues. This may be especially urgent since the "Truth Commission" is being positioned to literally whitewash the coup, while apparently ignoring the very real human rights violations documented by so many diverse international and national groups.