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In November 2023, Spanish Prime Minister Pedro Sánchez struck a deal with Catalan separatists involved in the 2017 illegal independence referendum. Sánchez agreed to grant them amnesty in exchange for their political support, allowing him to form a government and stay in power. The amnesty is given through a law which sparked widespread controversy – both because it is seen as a political move by Sánchez, but also because a large majority of public opinion is opposed to the idea of pardoning those involved in what has been considered Spain’s greatest constitutional crisis since a failed military coup in 1981. Even Catalan public opinion is divided. While some deem that the amnesty law does not go far enough – as reflected by some separatists’ preliminary rejection of the proposed amnesty law – others would rather focus on collaboration with Madrid, with the aim of eventually obtaining another independence referendum. A significant portion of Catalans are also simply opposed to independence: while 43.6% were against independence in October of 2017, 52% were opposed to it in summer 2022.

Aside from the domestic political issues this amnesty raises, the Spanish amnesty law raises the broader question of how to achieve national reconciliation in the wake of separatist movements – namely,  whether blanket amnesties or decisions handed down by courts are more efficient.

Background: The 2017 Referendum and its Aftermath 

Understanding the background of this Spanish law is crucial to understanding the efficiency of this amnesty. Spain is a decentralized state, organized into several regions, which each possess powers that the central government in Madrid has devolved over the years. Demands for independence of Spain’s region of Catalonia have been clearly heard since 2010. Tensions came to a high in October 2017 when then leader of Catalonia, Carles Puigdemont, staged a referendum to vote on his region’s independence, in defiance of the country’s constitutional court. 90% of the 2.26 million people who came out to vote opted for independence – around 42% of those living in Catalonia at the time. 26 days after the referendum, Catalan members of parliament voted in the regional parliament to become an independent republic, upon which the prime minister at the time, Mariano Rajoy, assumed direct control of Catalonia and called for new regional elections.

Puigdemont, faced with the risk of prosecution for illegally attempting to procure independence and other terrorism-related charges, fled the country to go to Belgium. He has been a member of the European Parliament since 2019, all the while fighting extradition demands from Spain. Nine other members of his government – such as former Vice President Oriol Junqueras – have faced trial and imprisonment in Spain for the same crimes. 

Since then, among the political parties active in Spain today, the virulent Junts (Puigdemont’s party), the less confrontational ERC (the Republican Left of Catalonia, led by current regional president Pere Aragonès), and the CUP (Popular Unity Candidacy) continue to advocate for Catalonia’s independence through means ranging from secession to negotiation, thus keeping the issue of separatism and tensions surrounding it alive. Prime minister since 2018, Pedro Sánchez has always been a proponent of a less confrontational approach to the Catalan issue. For instance, in 2019, he pardoned the nine former members of Puigdemont’s government mentioned above. After the national elections of July 2023, when Sánchez needed the support of Junts and ERC to form a government and keep his position as prime minister, the latter parties agreed to support him in exchange for the adoption of the amnesty law of interest. This amnesty law would release all those who had been convicted for promoting or procuring the secession or independence of Catalonia in connection with the 2017 referendum, lift all outstanding arrest warrants and the ban on holding public office for those involved in the referendum, and stop all ongoing judicial proceedings against those involved in any way in the 2017 referendum. Anyone from police officers involved in the harsh repression against the referendum, civil servants working for the Catalan government, to teachers who opened their schools to serve as polling stations are covered by this amnesty. The controversial nature of the Spanish amnesty law is thus primarily rooted in its all-encompassing nature.

Debates Surrounding Amnesty Laws

Amnesty laws are not just controversial in the Spanish context. One common objection to the very idea of amnesty laws is that they are a hindrance to domestic judicial processes. Indeed, amnesty could weaken the separation of powers as the executive and legislative branches take over the judicial branch’s processes. Concerns regarding the rule of law have also been raised, as amnesty would mean that the law does not apply equally to all – some are free from being held legally accountable while others in a different context would not. 

Moreover, amnesty laws seem to be best suited to a very specific situation. Amnesty processes are most commonly used during transitions from authoritarian regimes or from very repressive regimes to democracy. This is not to minimize the events Spain experienced, but is useful to better understand why amnesty might not be suited to this case of separatism. Indeed, aside from the police violence against those who went to the polls or protested in Catalonia in 2017, the same kind of mass violence, crimes and lack of a strong judiciary typical of cases in which amnesties have been used cannot be found in Spain today. Cases where such amnesties have been used include Spain itself in 1977 after the end of the Francoist dictatorship; but also Chile, where former authoritarian leader Pinochet granted himself and his government amnesty for the crimes they committed while in power – an amnesty that was revoked in the 1990s to allow the newly strengthened judiciary to step in. Similarly, Argentina passed a law granting amnesty to military leaders who were in power from 1976 to 1983 for the crimes they committed while in power – laws that the Argentine Supreme Court struck down in 2005 to allow prosecutions to occur.

Blanket amnesty laws can therefore be controversial. In fact, the use of amnesties has come to be increasingly scrutinized on the international scene. Recognizing amnesties’ potential to perpetuate impunity, international law has increasingly focused on setting guidelines for their use. An example of that would be the 2004 UN guidelines on restrictions for amnesties, which states that amnesties cannot be granted to those responsible for the most egregious human rights violations and when they conflict with that state’s duties under international law. A concrete application of this could be seen in the Inter-American Court of Human Rights 2001 decision Barrios Altos v. Peru, which stated that the amnesty laws passed by Peruvian authoritarian leader Alberto Fujimori covering all members of his government clashed with Peru’s obligations to respect the rights guaranteed by the American Convention on Human Rights and were thus inapplicable. In the case of Spain, examining whether this amnesty law clashes with obligations taken on by Spain through the European Union or the European Convention on Human Rights will therefore be crucial. In fact, the EU Justice Commissioner has raised concerns over this amnesty – and both the European Commission and a delegation from the Council of Europe’s Venice Commission on the rule of law will give their opinion on the validity of these amnesty laws.

The Case of Separatism

If amnesties most often appear during transitions to democracy, are they a “good” way to heal divisions in a country facing separatism?

Professor of politics Omar Encarnación argues that amnesty would avoid fueling further political divisions in Spain by showing that Madrid is willing to compromise – thus bolstering the less confrontational branch of separatists found in the ERC. Amnesty would simultaneously undercut far-right parties like Vox which are using the unresolved issue of Catalan separatism to rally disaffected voters opposed to such separatism. This would thus further contribute to healing divisions in Spanish society. More generally, since a significant part of the population in Catalonia participated in the referendum, a blanket amnesty is seen as needed to move forward. Another benefit Encarnación sees is that such amnesties would lift the “victim” narrative. Separatists would no longer be able to claim that they were mistreated by Madrid and the Spanish judicial system – therefore lessening resentment. The benefits of amnesties according to this side can therefore be summed up in the following way: amnesties efficiently foster “coexistence and harmony,” as Pedro Sánchez has often claimed he aims to do. In this way, amnesties appear as an efficient means to be used in processes of reconciliation – thus moving away from judicial processes to focus on politics.

The opposing side, however, argues that amnesty laws risk leaving some issues unaddressed and avoid holding perpetrators accountable through the judicial system. Amnesty laws do not allow societies to affirm that certain actions are unacceptable – in this case, that acting in contradiction to the country’s constitutional court is unacceptable. Impunity would then follow, possibly risking the use of similar methods in the future, especially because some separatist parties have maintained that they could decide to hold another illegal referendum. Doubts as to whether amnesties are best suited to deal with separatist movements thus remain. While an amnesty might allow Spain to move forward and heal its divisions, the risk that more confrontational parties like Junts will take advantage of this amnesty and stir more trouble cannot be neglected, especially given their continued antagonistic attitude today.

The Need to Strike a Balance

The discussion above demonstrates the difficulty of striking a balance between politics and judicial processes. An approach of limited or conditioned amnesties might, then, allow governments to better strike this balance.

Different examples help illustrate such limited amnesties. South Africa, after the end of the apartheid system in the early 1990s, established a Truth and Reconciliation Commission. On a case-by-case basis, amnesty could be granted to perpetrators in exchange for truthful testimony – allowing the judiciary to step in in some high-level cases. 

Northern Ireland’s case is also useful here. The Good Friday Agreement, which ended a violent and deeply divisive conflict between Protestant Unionists who wanted to remain part of the United Kingdom and Catholic Republicans who wanted to join the Republic of Ireland, gave more power to Northern Ireland by creating a Northern Ireland Assembly which included Republicans and facilitated cross-border relations. Only a temporary amnesty was included: all paramilitary groups involved in the conflict would have to go through a process of decommissioning their weapons. If they had not done so by a set date (around 2010), all weapons found could be used as evidence against them in a court. While prosecutions of those accused of crimes have been limited and sentences handed down have been short, the approach to healing divisions embodied by the Good Friday Agreement shows a willingness to strike a balance between avoiding reigniting tensions and ensuring victims get access to justice – a crucial balance because, as the Economist puts it, “a sense of injustice does not die with an individual.” Today, the perceived beneficial consequences of the balance struck by this limited amnesty are highlighted by Unionists and Republicans’ continued opposition to a general amnesty, such as the one recently passed by the British parliament. The case of Northern Ireland, then, shows how reconciliation in the wake of separatist movements can be achieved through a limited amnesty – something which Spain could learn from.

The Issue of Timing – Why It Matters

The debate about amnesties and whether politics or judicial processes are more efficient to achieve national reconciliation cannot be definitively settled. In the case of Spain, the timing of Sánchez’s decision more than anything else negatively taints the amnesty and impedes any true consideration of its merits in the context of Catalan separatism.

Now that the amnesty law has been passed by the lower chamber of the Spanish parliament, it remains to be seen whether Puigdemont returns to Spain and manages to win elections for Catalonia’s regional presidency and whether the EU or the Council of Europe decide to step in. The future of both Catalan separatism and the amnesty law itself thus remains unclear.

Delving deeper into the merits of amnesty laws is necessary not just in the case of Spain. Many states in conflict today could one day look to amnesty laws as part of their transitional justice processes. Settling on a more precise framework for when and how to use amnesty laws might ensure that the benefits of amnesty are secured while its downfalls are avoided.