Amnesty versus Impunity: Interview with Geoff Thale

David Smilde

Geoff Thale is Program Director at WOLA and has worked on human rights issues in Latin Americasince the mid-1980s. His original geographic specialization was on El Salvador, and he closely followed the post-civil war negotiations in El Salvador in the early 1990s. We recently communicated by email regarding the issue of political prisoners in Venezuela.

In the dialogues between the government and opposition in Venezuela the issue of political prisoners has surfaced as perhaps the main sticking point. The opposition has presented a proposal for blanket amnesty for all political prisoners jailed over the past fifteen years. Some leaders have presented this as a sin qua non for their side. The government, in contrast, has argued that this would amount to impunity and invited relatives of the victims of the 2002 coup to meet with the opposition during the course of their third meeting. So far the debate seems largely uninformed by regional discussions regarding amnesty laws.

Most of the debate around “amnesty” in Latin America (and elsewhere) has focused on whether or not state-connected actors (military officers and paramilitary/death squad leaders, and political figures who approved specific actions) can be protected from criminal prosecution for human rights abuses committed during armed internal conflicts. Sometimes amnesty laws cover guerrilla groups as well as state actors, depending on the situation.

That debate is about balancing the political realities needed to achieve peace with the demands of victims and of justice. Human rights groups have generally sided with the victims and the demands for justice, have opposed blanket amnesties, and have argued for limiting the scope of post-conflict amnesties overall.

That’s a very different debate than a debate about amnesty for “political prisoners.”  In general, of course, human rights groups oppose jailing people for political activity, and agree that political prisoners should be freed.  But who exactly is a political prisoner, and how that’s defined is a complicated question.

Amnesty International (AI) came out with a hard hitting report as well as a video statement regarding the Venezuelan crisis. Both statements mention unjustified detentions during the protests. But neither mentions the broader issue of political prisoners. That seems significant since political prisoners is AI’s original and still principal issue.

AI uses the term “prisoner of conscience,” meaning  “people who have been jailed because of their political, religious or other conscientiously-held beliefs, ethnic origin, sex, color, language, national or social origin, economic status, birth, sexual orientation or other status, provided that they have neither used nor advocated violence.”  AI is fairly strict about this; as a result, its lists of prisoners of conscience are restricted. In Cuba, for example, AI lists only two or three prisoners of conscience; the best known (but still illegal) human rights group in Cuba, the Cuban Commission for Human Rights and National Reconciliation, lists 90.

AI regards “prisoners of conscience” to be a subset of “political prisoners.” They define the latter as “any prisoner whose case has a significant political element: whether the motivation of the prisoner’s acts, the acts in themselves, or the motivation of the authorities.” They demand immediate release for prisoners of conscience but only a fair and prompt trail for political prisoners. That is a big and important difference because the implication is that all prisoners of conscience are unjustifiably detained while not all political prisoners are.  So how can we tell the difference?

It’s not hard, I think, to identify people who’ve been imprisoned only for their speech or political advocacy, or political organizing. They are clearly prisoners of conscience and the human rights community’s view is that they should be released. What is harder to sort out are the cases that combine political motivation with various kinds of unlawful activity.  This includes people who have employed or advocated violence, as well as people who were engaging in efforts to overthrow the government (whether violently or non-violently, or somewhere in between.) 

Among people who have “employed or advocated violence,” there are differences between people who plant bombs or shoot at police, at one end of the spectrum, and people who make inflammatory speeches at the other, and a big gray area in-between.

The category of people seeking to overthrow the government also has a lot of gray in it. Governments everywhere view this as a crime, and prosecute people for it.  Revolutionaries,  rejecting the legitimacy of the government, often proudly admit their actions, but reject the notion that they were “criminal.”  

There’s a broad range of behaviors that can lead to the charge that someone is trying to overthrow the government.  On the one end are people who sit down and map out an explicit strategy to work with dissident army officers to stage a coup, or who plan to foment politically destabilizing riots then seize the presidential palace. On the other end are people who think the government should go and stage confrontational demonstrations.  (In the late 1960 and early 1970s, the U.S. government prosecuted all sorts of leftists, anti-war activists, and Black militants for “conspiracy to overthrow the government.”)

So are there some more precise rules of thumb that the human rights community uses?

Since the human rights community generally opposes the idea of impunity – that people, especially powerful people, can commit crimes without fear of punishment – human rights groups may feel that violent acts should not go unpunished. I don’t think those lines can be drawn in the abstract, or that there is some single position that the “human rights community” takes about how and where those lines should be drawn.

And of course even when the lines get drawn — this type of behavior can be amnestied, and this not – there will be fights about the evidence to prove someone stepped over the line. (A big issue has to do with whether people who have been detained have been charged with a specific crime, and the quality of the evidence for the crime. Charges like “conspiracy to overthrow the government” or “social dangerousness” are a lot more suspect, and a lot more likely to indicate that someone is a political prisoner, than charges like “urged crowd to attack police” or “oversaw plan for provocateurs to throw rocks.” )

All this is to say that the human rights community probably agrees that non-violent prisoners of conscience should be amnestied, and that governments that detain people need to charge them with specific crimes for which they have convincing evidence.  And of course, for people charged with specific crimes, the human rights community would look at whether there was adequate due process, the right to defend one’s self in court, and whether the judicial system is free from undue political pressure.

Beyond that there is a complicated debate to be had, and no single position that could be called the human rights community position.

What particular challenges are there in the Venezuelan case?

It’s never easy to work out amnesties for political prisoners — it involves defining the universe of people detained and/or convicted for activities that were at least in part politically motivated (students or community activists involved in demonstrations, workers on strike, politicians, movement leaders, people involved in politically motivated robberies or killings, etc), then coming to agreement about what can be excused or overlooked for the sake of political reconciliation, and what has to be punished for the sake of justice. 

The levels of political polarization in Venezuela make that an especially challenging problem.  One side tends to view all those in detention as subversives implicated in violent efforts to overthrow the government.  The other side tends to view them all as dissenters who have been imprisoned by a repressive government.   And lack of faith in the judicial system among government opponents compounds the problem.