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Amnesty, Human Rights and Political Transitions

Bridging the Peace and Justice Divide

By: Louise Mallinder
Media of Amnesty, Human Rights and Political Transitions
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Published: 10-09-2008
Format: Hardback
Edition: 1st
Extent: 598
ISBN: 9781841137711
Imprint: Hart Publishing
Series: Studies in International Law
Dimensions: 234 x 156 mm
RRP : £90.00
 

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About Amnesty, Human Rights and Political Transitions

Amnesty laws are political tools used since ancient times by states wishing to quell dissent, introduce reforms, or achieve peaceful relationships with their enemies. In recent years, they have become contentious due to a perception that they violate international law, particularly the rights of victims, and contribute to further violence. This view is disputed by political negotiators who often argue that amnesty is a necessary price to pay in order to achieve a stable, peaceful, and equitable system of government. This book aims to investigate whether an amnesty necessarily entails a violation of a state's international obligations, or whether an amnesty, accompanied by alternative justice mechanisms, can in fact contribute positively to both peace and justice.
This study began by constructing an extensive Amnesty Law Database that contains information on 506 amnesty processes in 130 countries introduced since the Second World War. The database and chapter structure were designed to correspond with the key aspects of an amnesty: why it was introduced, who benefited from its protection, which crimes it covered, and whether it was conditional. In assessing conditional amnesties, related transitional justice processes such as selective prosecutions, truth commissions, community-based justice mechanisms, lustration, and reparations programmes were considered. Subsequently, the jurisprudence relating to amnesty from national courts, international tribunals, and courts in third states was addressed.
The information gathered revealed considerable disparity in state practice relating to amnesties, with some aiming to provide victims with a remedy, and others seeking to create complete impunity for perpetrators. To date, few legal trends relating to amnesty laws are emerging, although it appears that amnesties offering blanket, unconditional immunity for state agents have declined. Overall, amnesties have increased in popularity since the 1990s and consequently, rather than trying to dissuade states from using this tool of transitional justice, this book argues that international actors should instead work to limit the more negative forms of amnesty by encouraging states to make them conditional and to introduce complementary programmes to repair the harm and prevent a repetition of the crimes.

David Dyzenhaus
"This is one of the best accounts in the truth and reconciliation literature I've read and certainly the best piece of work on amnesty I've seen."

Diane Orentlicher
"Ms Mallinder's ambitious project provides the kind of empirical treatment that those of us who have worked on the issue of amnesties in international law have long awaited. I have no doubt that her book will be a much-valued and widely-cited resource."

Table Of Contents

Introduction
Defining 'Amnesty'
Controversial Nature of Amnesty Laws
Amnesties, International Law and Legal Claims-making
Amnesties and the Views of Victims
Amnesties and Pragmatic Peacemaking
Amnesties and Dealing with the Past
Amnesty and Reconciliation
Trends in the Introduction of Amnesty Laws
Creating the Amnesty Law Database
Structure and Purpose of the Book
Part I Amnesties and Peacemaking: Context and Content
1 Enacting Amnesties
Introduction
How are Amnesty Laws Introduced?
Exercises of Executive Discretion
Negotiated Peace Agreements
Statutes
Public Consultation
Why Do States Introduce Amnesty?
Amnesty as a Reaction to Internal Unrest and Domestic Pressure
Amnesty as a Tool for Peace and Reconciliation
Amnesty as a Response to International Pressure
Amnesty as a Cultural or Religious Tradition
Amnesty as Reparation
Amnesty as a Shield for State Agents
Repeated and 'Rolling' Amnesties
Conclusion
2 Whom do Amnesties Protect? The Personal Jurisdiction of Amnesty Laws
Introduction
Amnesties, Equality and the 'Myth of Equivalency'
How have States Distinguished between Offenders with Different Allegiances?
State Agents
Opponents of the State
Non-Violent Political Prisoners
Exiles and Refugees
Foreign Nationals
Can an Offender's Reasons for Committing a Crime Justify an Amnesty?
Ideology and Political Offenders
Duress
Self Protection and Personal Gain
Victim–Perpetrator Axis
Importance of Rank: Should States distinguish different Levels of Responsibility
Amnesty for Subordinates?
Amnesty for Superiors?
Individual v Blanket Amnesties
Can Amnesties Prevent Individuals from Proving their Innocence?
Conclusion
3 Granting Immunity? The Material Scope of Amnesty Laws
Introduction
Which Crimes Are Granted Amnesty?
Amnestying Atrocities? Can States Amnesty Crimes under International Law?
Should Amnesties Treat Political Crimes Differently?
Impinging on Individual Rights: Amnesties for Crimes Against Civilians and Combatants who are Hors de Combat
Do States Amnesty Economic Crimes?
Restricting Amnesties and the Scope of the Duty to Prosecute
Conclusion
4 Towards Greater Accountability: The Role of Conditional Amnesties
Introduction
Which Conditions are Attached to Amnesties?
Amnesty for Surrender and Disarmament
Application Deadlines for Amnesties
Amnesty and Repentance
Amnesty and the Search for Truth
Amnesty and Repairing the Harm
Amnesty and Restorative Approaches to Justice
Lustration and Vetting Procedures and Amnesty
Enforcing Conditions and the Potential of Temporary Amnesties
Conclusion
Part II Approach of Courts to Amnesties
5 Implementing the Amnesty: The Approach of National Courts
Introduction
Trends in the Responses of National Courts to Amnesty Laws
How have National Courts explained their Approach to Amnesty Laws?
Legality of Amnesty Processes Under Municipal Law
Legality of Amnesty Processes Under International Law
Adhering to the Separation of Powers Doctrine
Learning from Experiences Elsewhere
Promoting Peace and Reconciliation
Disclosing or Concealing the Truth
Conclusion
6 International Courts and National Amnesty Laws
Introduction
Whom do International Courts Hold Accountable?
Who has Standing?
When do International Courts have Jurisdiction to Rule on National Amnesties?
Potential to Create Change: How the Rulings of International Courts Can Affect National Amnesties?
Amnesties and Victims' Rights: The Verdicts of the International Courts
Right to a Remedy
Duty to Investigate
Duty to Prosecute and Punish
Right to Reparations
Potential Approach of the International Criminal Court
Security Council Deferral (Article 16)
Complementarity (Article 17)
Non bis in idem (Article 20)
Prosecutorial Discretion (Article 53)
Conclusion
7 Beyond Territoriality: Transnational Prosecutions and Amnesties
Introduction
Jurisdiction of Courts in Third States to Rule on Amnesties Introduced Elsewhere
Treaty Law
Customary International Law
Domestic Law
Scope of Universal Jurisdiction within Third States
Role of Subsidiarity
Executive Discretion
'Nexus Requirement' and In Absentia Prosecutions
Selectivity
'Ripple Effect': The Impact of Investigations in Third States on National Amnesties
Conclusion
Part III Views of Stakeholder Groups
8 Legal Obligations v Self-interest: The Contradictory Approach of International Actors to Amnesty
Introduction
What Motivates International Actors' Decisions on Involvement in Domestic Amnesty Processes?
Attitudes of International Actors towards Amnesties
Diplomatic Pressure
Economic Pressure
Legal Pressure
Military Pressure
Conclusion
9 Prioritising Needs: Amnesties and the Views of Victims
Introduction
Research on Victims
Identifying Victims and their Needs
How do Amnesty Laws Affect Victims?
How can Amnesty Laws Be Made More Responsiv

Reviews

“[Mallinder]..supplies a tour de force of the international law, national law, local and customary law of amnesty. Doctrinal scholars will find much of value in the footnotes, just as empirical researchers of peacebuilding will learn much, as I did, from the juxtaposition of implications from strategic cases of a great variety of nations interwoven with the empirics of the Amnesty Law Database. I found particularly helpful the legal analysis of amnesty exclusions for those 'most responsible' for war crimes, a doctrine emerging as increasingly important internationally and nationally...The book and the database are both pathbreaking contributions that I will rely on in my future research on peacebuilding. This is sophisticated scholarship that others will also find an invaluable resource.” –  John Braithwaite, Punishment and Society, Vol 11 (2)

“Why is it worth spending our time in reading this extraordinary essay? Mallinder has written an excellent handbook on the issue of amnesty. Indeed, she presents a comprehensive and original view of transitional justice and amnesty...We must be grateful for the excellent bibliography and for the information in the three appendices: one presents a remarkable list of anmensty processes, a second one contains much information in relation to the international court system, and the last one concerns a guide of provisions for a universal jurisdiction legislation.” –  Juan Jesus Mora Molina, The Law & Politics Book Review, Vol 19 No 4

“The sheer volume of Mallinder's research onto 506 amnesty processes has to be admired. Most useful are the extensive footnotes giving literature searches and multi-lingual case studies and legislations of countries… This means that the book can be adopted on a number of different levels, such as criminology and victimology, international law or war and peace studies… This magnificent book is not just a tour de force in the study of international law but can be useful for the training of negotiators. The book provides a wealth of factual background for those who may wish to work for international voluntary organizations such as VSO, the UN or UNICEF.” –  Ursula Smartt, Criminal Law & Justice Weekly, Volume 173

“This book is an invaluable contribution to this area of research as it analyzes the trends that can be discerned from the multitude of amnesty processes. Such examination is a critical and useful study and can provide lessons for scholars but also for states that may wish to adopt an amnesty…While studies in the past have examined amnesties from a thematic or country context the value of this research is its breadth in its examination of amnesties all around the world…This book is original. It is a substantial piece of work. It brings together a lot of information from disparate sources and clearly and systematically interprets that material. The work gives understanding to processes of law and amnesty in a multitude of settings. The breadth of materials consulted outside of the laws and cases are impressive. The bibliography stretches to 134 pages. It is a must read for everyone interested in the issues relating to transitional justice, human rights and humanitarian law as well as international and domestic criminal justice.” –  Jeremy Sarkin, Criminal Law Forum, 20:389–394

“an excellent and long-awaited contribution to the study of national amnesty laws and practices... The book is an essential read for those concerned with transitional justice and international criminal law.” –  Sarah Williams, British Institute of International and Comparative Law, The Edinburgh Law Review, Vol 13

“[Mallinder] illluminates a hitherto little understood area of law, relying upon a volume of international source material and using a level of empirical research seldom found in legal writing.” –  Colin Murray, International Criminal Law Review, Volume 9

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