Amnesty, Human Rights and Political Transitions

1. Auflage 2008
ISBN: 978-1-84113-771-1
Verlag: Bloomsbury Publishing PLC

Buch, Englisch, 598 Seiten, Format (B × H): 156 mm x 234 mm, Gewicht: 1043 g

Reihe: Studies in International Law

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."

Autoren/Hrsg.

Mallinder, Louise

Fachgebiete

• Sozialwissenschaften Politikwissenschaft Politische Kultur Menschenrechte, Bürgerrechte
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Öffentliches Recht, Völkerrecht, Internationale Organisationen
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationale Menschen- und Minderheitenrechte, Kinderrechte

Inhaltsverzeichnis

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

Über Autor(innen)

Louise Mallinder is a Lecturer in Human Rights and International Law at the Transitional Justice Institute of the University of Ulster. She was previously a Research Fellow in Law at Queen's University Belfast.