The proposed amnesty has sparked controversy among victims of the Maduro regime. Legal experts, meanwhile, have concerns that this move could be in violation of international law and the country’s constitution. And there’s another factor: Maduro and his military have been implicated in human rights abuses that may amount to crimes against humanity.
Here’s how negotiated pacts have worked in other countries
Negotiated transitions between outgoing authoritarians and ascendant democrats have fostered many peaceful transitions, reducing the specter of violence and instability. The case of Poland exemplifies this. But negotiated transitions can have a dark side when it comes to transitional justice — chiefly, a pact may thwart accountability for the crimes of the authoritarian past. The case of Poland also illustrates this dynamic.
Many human rights advocates argue that pursuing justice is warranted for moral reasons, as well as pragmatic ones, such as instilling the rule of law and ensuring long-term stability. Some negotiated transitions include a limited or blanket amnesty for those implicated in corruption, human rights abuses and war crimes.
Restorative justice mechanisms such as truth commissions can be a compromise between those who seek courtroom justice and those who argue for no accountability at all for criminal activities. The decision by Nelson Mandela’s African National Congress to forgo prosecutions helped facilitate an end to the apartheid government. South Africa’s post-apartheid government proceeded to establish a Truth and Reconciliation Commission, which ensured the country confronted decades of state-sponsored violence.
Why amnesty can lead to demands for justice — later
Negotiated settlements that lack any accountability provisions can’t make feelings of injustice for past crimes disappear, however. And the temptation to forgo accountability altogether can come back to haunt the new regime. In some countries that underwent negotiated transitions and instituted amnesties, demands for justice resurfaced years later, leading to belated trials.
Here’s an example. In Chile’s democratic transition in the late 1980s, the new leaders did not attempt to nullify the military’s self-amnesty, which granted immunity for its role in the torturing and killing of thousands. It took a failed attempt by Spain to put former Chilean leader Augusto Pinochet on trial under the doctrine of universal jurisdiction to push the Chilean courts to prosecute many accused of Pinochet-era crimes.
The failure to confront a nation’s dark past can eventually undermine the legitimacy of the state and polarize society. The absence of transitional justice can then become fertile ground for illiberal appeals by populist politicians.
Is there a lesson to be learned from Poland’s experience?
Francisco Rodriguez and Jeffrey D. Sachs suggest that Poland’s experience is a potential model for a negotiated transition in Venezuela. But in Poland, a country once considered a consolidated democracy, the transition is a cautionary tale of how a new regime can exploit unrequited justice to rationalize illiberalism.
The Polish transition was based on a 1989 pact between the former ruling communist elite and the opposition, who sat down at a “Round Table” and decided to share power in an interim government. However, victims of the former regime came to deeply resent the resulting de facto amnesty for the former communists.
This de facto amnesty was facilitated by the forgiving sentiments expressed on Aug. 24, 1989, by Tadeusz Mazowiecki, the first noncommunist prime minister in the democratic era. In his opening speech to the Polish Parliament, Mazowiecki called on the nation to draw a thick line (gruba linia) between the present and past, adding that “we will only answer for what we have done to get Poland out of its current state of despair.”
Over time, this lack of accountability sparked resentments. Poland’s current nationalist government, in turn, had politicized this resentment. Supporters of the government, led by the Law and Justice (PiS) party, accuse the democratic opposition that sat at the Round Table of betraying the cause of justice. PiS further stoked populist anger by alleging that the impunity enjoyed by the former communists has enabled them to profit from shady privatization deals under the guise of democracy and capitalism. According to the ruling party’s narrative, the 1989 transition is to blame for Poland’s current political and economic challenges.
Liberal supporters of transitional justice often criticize amnesties for providing cover to those responsible for grave crimes. But in the Polish case, it is the right wing that has co-opted the pro-justice argument to advance a nationalist agenda. The current Polish government exploits the narrative of unfulfilled justice to legitimize its attacks on the judiciary and the independent media. The European Union has severely criticized the government’s efforts to remove judges.
Poland’s descent into illiberalism is complex and cannot be blamed solely on the negotiations that brought an end to communist rule. But it’s difficult to ignore that Poland’s negotiated transition failed to address the painful memories of communist rule — just as the post-communist state’s failure to confront the legacy of German occupation and instances of Polish collaboration helped create the political conditions for last year’s controversial “Holocaust Law.” Indirectly, the decision of the Round Table negotiators to let bygones be bygones has now provided fertile ground for populists to stoke the polarizing politics of grievance and exploit feelings of injustice.
Venezuela is not Poland
A negotiated settlement in Caracas may be the way to avert violence and ensure a smooth transition. But Poland’s recent history also suggests that amnesties can have unintended consequences for the long-term stability and legitimacy of liberal democracy.
That the proposed amnesty bill has already sparked dissent is a sign that not confronting the crimes of the Maduro regime may undermine the consensus necessary for a durable democracy. And there may be pushback in any case from the International Criminal Court, which for the past year has been conducting a preliminary investigation of state-sponsored violence in Venezuela.
Victor Peskin is an associate professor in the School of Politics and Global Studies at Arizona State University and a senior research fellow at the Human Rights Center at the University of California at Berkeley.