The U.S. intervention in Venezuela violated the ius cogens prohibition of the use of force and the principle of non-intervention of the UN Charter (see here and here). At the same time, it created room for political change. The recently adopted Venezuelan Amnesty Law (AL) appears to go in that direction. With limited exceptions — most notably crimes against humanity (Art. 9) — the law grants a “general and full amnesty for … crimes and misdemeanours (delitos y faltas)” (Art. 1) committed over a broad period (Art. 5) and in connection with specific events (Art. 8). It also declares noble objectives such as the “promotion of social peace, democratic coexistence, and national reconciliation.”

However, a law should not be judged only by what it proclaims, but also — and above all — by its real effects. From this perspective, fundamental doubts arise as to whether the AL will contribute to a true democratic renewal in Venezuela.

Genuine Object, Genuine Need? When the Devil hides in the Foundations …

Traditionally, an amnesty is understood as the State’s waiver of criminal prosecution (see here, pp. 543-4, in particular distinguishing it from a pardon): its starting point is always an object to be amnestied, i.e., a legally relevant (punishable) conduct that, in light of the specific context, the State decides to waive or cancel. In the case at hand, however, it is highly questionable whether any genuine conduct worth amnestying or in need of an amnesty exists.

The AL links the relevant conduct to events largely associated with acts of protest (Art. 8 refers to “demonstrations and politically motivated violent acts”). Given this linkage and the government’s control over the criminal justice apparatus, it is very likely that many cases do not involve genuinely criminal behaviour, but rather fabricated charges arising from the criminalization of protest and persecution of opponents of the Chavista regime. Thus, there may be no real object worth of an amnesty at all. In fact, many — if not all — individuals who could benefit from the AL should never have been subject to criminal prosecution or detention in the first place.

Further, the question arises whether the Venezuelan legal system genuinely lacks mechanisms to release individuals charged or detained for the relevant acts. In other words, would it not have been more appropriate to use existing domestic remedies to protect fundamental rights from government abuse? One might argue that a general solution like amnesty avoids fragmented criteria in release decisions. Yet the AL does not eliminate that risk, because courts retain discretion in verifying amnesty requirements (Art. 11). Worse, as currently designed, filing an amnesty application implies — at least indirectly — acceptance of the charges. Thus, even if the charges are artificial, applying for amnesty confirms their premise (i.e., the existence of an act worth being amnestied) and produces an undesirable legitimizing effect: it frames the State as lenient toward wrongdoing allegedly committed by citizens and therefore legitimately prosecuted. In this way, the AL obscures the structural problem of fabricated accusations, manipulation of the criminal justice system, criminalization of protest, and the resulting erosion of democracy.

… and also in the Details: Risks of the Amnesty Law

The AL also presents serious practical problems.

First, its temporal scope is more limited than Article 6 initially suggests. While that article implies coverage of more than 25 years (since 1999, the first government of Hugo Chávez), Article 8 reduces that period to specific events covering only about 20 months, leaving out many incidents from other periods. Moreover, excluding acts that occur after the law’s entry into force (Art. 6), combined with continued government control over the criminal justice apparatus, preserves the risk of new fabricated accusations and renewed judicial harassment of political opponents.

Second, the broad material scope of the AL (Art. 1) does not offer a reliable guarantee of freedom. Against the backdrop of a prosecutorial apparatus controlled by the government, a charge under any offense not eligible for amnesty (for example, drug trafficking under Art. 9) could suffice to neutralize the effect of the amnesty and return matters to square one.

Third, the law leaves unresolved a further – and potentially far-reaching – problem: the requirement that applicants appear in person before prosecutorial authorities (Art. 7) is not fully mitigated by the prohibition on detention (a kind of free passage rule) provided in the same article. According to that prohibition, after filing an application “the person may not be deprived of liberty for the acts [to be amnestied]”. But is this sufficient? Imagine a citizen residing abroad who returns to apply for amnesty. While s/he could not be detained for acts eligible for an amnesty while the process is pending, what happens if their application is denied at first instance? Under Article 12, the applicant would have the right to appeal the denial, but only with “non-suspensive effect.” This means that, while the appeal is pending, the individual remains under investigation or prosecution for the act that motivated the criminal proceedings (in that context, Article 10 — which orders the cessation of coercive measures — would not apply, because it refers to “persons benefiting from amnesty,” i.e., those whose application has already been approved). Even if not imprisoned, restrictive measures like travel bans could be imposed. In a context of potentially arbitrary decisions, this risk is far from minor. If the denial is upheld, the path toward conviction based on questionable accusations would be open.

Finally, the Special Commission to be set up by the National Assembly (controlled by the regime) to ensure compliance with the AL (Article 15) lacks meaningful oversight capacity. Its membership is not yet publicly known, and its authority is limited to individual cases, not systemic problems — meaning it can correct isolated disruptions, but not structural issues.

Conclusion

While the release of victims of State abuse should always be welcomed, the AL suffers from fundamental and functional problems. Although it declares a desire to restore peace and democracy in Venezuela, these objectives cannot be achieved on fragile legal foundations.

It would have been preferable to acknowledge the abusive use of the State–judicial apparatus in prior years and adopt a tool consistent with that diagnosis. In this vein, a general provision – by decree or statute – renouncing prosecution of protest-related conduct and recognizing the abusive nature of the accusations, or at least refraining from treating them as genuine crimes, would have been more coherent (see on that here).

It is therefore contradictory that the AL also aims to “prevent the recurrence of acts subject to amnesty” (Art. 2). This implies a dangerous intention to persist in criminalizing conduct that embodies the legitimate exercise of the right to protest. True democratic reinstitutionalization should, by contrast, protect and foster that exercise. Only on that basis can social peace, democratic coexistence, and national reconciliation truly be built.

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