Amnesties, Punishment and the Calibration of Mercy in Transition
Journal of Law and Society, 39(3), pp. 410-440, 2012
24 Pages Posted: 8 Sep 2012
Date Written: 2012
Abstract
Despite the much vaunted triumph of human rights, amnesties continue to be a much used technique of post conflict transitional justice. For many critics, they are a synonymous with unaccountability and injustice. Using a number of key frameworks in the punishment and society literature – retribution, deterrence and restoration – this article examines some of those assumptions. The paper argues that despite the rhetoric, there is no universal duty to prosecute under international law and that issues of selectivity and proportionality present serious challenges to the retributive rationale for punishment in international justice. It contends that many of the assumptions concerning the deterrent effect in the field are also oversold and poorly theorised. It also suggests that appropriately designed restorative amnesties can be both lawful and effective as routes to truth recovery, reconciliation and a range of other peacemaking goals. The paper concludes that rather than viewing amnesties as mere instruments of impunity, they should instead be seen as important institutions in the governance of mercy, the reassertion of state sovereignty and, if properly constituted, the return of law to a previously lawless domain.
Keywords: Amnesties, Transition
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