Description
This book is about amnesties for grave international crimes that states adopt in moments of transition or social unrest.
This book is about amnesties for grave international crimes that states adopt in moments of transition or social unrest. The goal of this book is to reframe and revitalise the global debate on the subject and to offer an original framework for resolving amnesty dilemmas when they arise.
This book is about amnesties for grave international crimes that states adopt in moments of transition or social unrest. The goal of this book is to reframe and revitalise the global debate on the subject and to offer an original framework for resolving amnesty dilemmas when they arise.
This book is about amnesties for grave international crimes that states adopt in moments of transition or social unrest. The subject is naturally controversial, especially in the age of the International Criminal Court. The goal of this book is to reframe and revitalise the global debate on the subject and to offer an original framework for resolving amnesty dilemmas when they arise. Most literature and jurisprudence on amnesties deal with only a small subset of state practice and sidestep the ambiguity of amnesty's position under international law. This book addresses the ambiguity head on and argues that amnesties of the broadest scope are sometimes defensible when adopted as a last recourse in contexts of mass violence. Drawing on an extensive amnesty database, the book offers detailed guidance on how to ensure that amnesties extend the minimum leniency possible, while imposing the maximum accountability on the beneficiaries.
Part I. The Debate on Amnesties: 1. Introduction; 2. Defining amnesty; 3. Amnesties and impunity; 4. Amnesties and international law; 5. Amnesties and the ICC; 6. The evolving UN position on amnesties; 7. Conclusions; Part II. The Design of Amnesties: 8. Introduction; 9. Last recourse threshold; 10. Overarching parameters for amnesty design; 11. Specific amnesty design choices; 12. Conclusions.
"The widespread myth that amnesty is contrary to international law is convincingly debunked by Mark Freeman in this fine study. An experienced practitioner of transitional justice, his analysis is compelling, constructive and, above all, practical.
--William A. Schabas, Director, Irish Centre for Human Rights, National University of Ireland, Galway
‘Necessary evils’ is an original, daring, deep and inventive account of what is currently seen as a devil’s choice in dealing with a painful past. The book makes a dramatic difference in our understanding of amnesty in the aftermath of civil war and brutal repression. It forces practitioners and academics alike to forge a new model of transitional justice in our times."
--Luc Huyse, Professor Emeritus of Leuven University (Belgium)
"To call publicly for amnesty in the aftermath of mass atrocity is anathema to international human rights NGOs, whose activists demand extensive criminal prosecutions. Freeman’s field experience in many countries enables him to build a compelling case for greater legal flexibility in accommodating a variety of post-conflict contingencies; these often display moral ambiguities, he shows, resistant to the simpler, earnest urgings of international treaties. A valuable read for anyone concerned with the moral, legal, and political complexities of transitional justice throughout the world..."
--Mark Osiel, Aliber Family Chair i
Chapter
3. AMNESTIES AND THE FIGHT AGAINST IMPUNITY
3.1 Transitional justice and amnesty
3.2. The lesser-evil argument and the limits of trial impact
3.3 Evaluating the legitimacy and impact of amnesties
4. AMNESTIES AND INTERNATIONAL LAW
4.1 Treaty sources explicitly related to amnesty
4.2 Treaty sources implicitly related to amnesty
4.3 Nontreaty sources explicitly related to amnesty
4.4 International jurisprudence explicitly related to amnesties
4.4.2 Regional human rights courts and commissions
4.4.3 International and hybrid criminal courts
4.5 Other legal rights and obligations
4.5.1 Whether the right to amnesty is untouched by explicit prosecution commitments
4.5.2 Whether there are countervailing obligations with respect to the same violations
4.5.3 Whether there are conflicting state obligations between different human rights
4.7 The question of limitations and derogations
4.8 Reconciling international legal norms
5. AMNESTIES AND THE INTERNATIONAL CRIMINAL COURT
5.1 Background on the ICC
5.2 General considerations about amnesties and the ICC
5.3 Specific Rome Statute provisions related to amnesty
6. THE EVOLVING UN POSITION ON AMNESTIES
6.1 Legal questions about the UN position
6.2 Policy questions about the UN position
6.2.1 The mediation influence argument
6.2.2 The burden-of-persuasion argument
6.2.3 The practical guidance argument
6.2.4 The counterweight argument
6.2.5 The rigid and principled stand argument
6.2.6 The deterrence of violence argument
6.2.7 The ethics and rule of law argument
6.3 Alternatives to the current UN position
PART II The Design of Amnesties
2. LAST RECOURSE THRESHOLD
2.1 Existence of an urgent and grave situation
2.2 Exhaustion of appropriate options to end the urgent and grave situation
2.3 Exhaustion of leniency options short of amnesty to end the blackmail
3. OVERARCHING PARAMETERS FOR AMNESTY DESIGN
3.2 Minimum legal entrenchment
3.6.1 Typology of context and amnesty beneficiaries
3.6.2 Transitional justice measures
3.6.3 Features of the broader settlement
4. SPECIFIC AMNESTY DESIGN CHOICES
4.1 Minimum legal entrenchment
4.1.1 Nature of legal instrument
4.1.2 Whether permanent or temporary in character
4.1.3 Relation between amnesty and other laws
4.2.1 Explicit objectives mentioned in the preamble
4.2.2 References to sources of international law
4.3.1 The crimes or acts that are expressly eligible or ineligible
4.3.1.1 Political versus ordinary offenses distinction
4.3.1.2 Express exclusion of human rights crimes
4.3.1.3 Express exclusion of crimes motivated by greed
4.3.1.4 Express exclusion of crimes motivated by malice
4.3.1.5 Express exclusion of selected context-specific crimes
4.3.2 The persons who are expressly eligible or ineligible
4.3.2.1 Distinctions according to affiliations and subaffiliations
4.3.2.2 Distinctions according to rank
4.3.2.3 Distinctions according to forms of criminal participation
4.3.2.4 Express exclusion of beneficiaries of prior amnesties
4.3.2.5 Express exclusion of foreign mercenaries
4.3.2.6 Express exclusion of specific individuals
4.3.3 Express legal consequences of grant of amnesty for the beneficiary
4.3.3.1 Immunity of individual from prospective forms of liability
4.3.3.2 Effect on ongoing investigations, subpoenas, warrants, and trials
4.3.3.3 Effect on prior judgments and sentences
4.3.3.4 Effect on personal records
4.3.3.5 Effect on third parties
4.3.3.6 Variation in legal consequences depending on crime or rank
4.3.4 Geographical scope of application
4.3.5 Temporal scope of application
4.4.1 Conditions for obtaining individual grants of amnesty
4.4.1.1 Requirement to submit an individual application
4.4.1.2 Requirement to meet application deadline
4.4.1.3 Requirement of full and accurate disclosure of crimes
4.4.1.4 Requirement of apology
4.4.1.5 Requirement of public hearing
4.4.1.6 Requirement to participate in tradition-based justice process
4.4.1.7 Requirement of restitution and community service
4.4.1.8 Requirement of relocation and supervision
4.4.1.9 Requirement of DDR participation
4.4.1.10 Requirement of renunciation of violence
4.4.1.11 Requirement of release of hostages and prisoners of war
4.4.1.12 Requirement of cooperation with law enforcement authorities
4.4.2 Conditions for retaining individual grants of amnesty
4.4.2.1 Requirement of nonbreach of amnesty's preconditions
4.4.2.2 Requirement of nonrecidivism
4.4.2.3 Requirement of compliance with prospective prohibitions
4.4.2.4 Parallel requirement of pledges by the larger group
4.5.1 The supervisory body and its mandate
4.5.2 Contestation of individual amnesties by victims
4.5.3 Contestation of individual amnesties by rejected applicants
Final Considerations: On the Perennial Contestation of Amnesties
APPENDIX 1 Summary Guidelines for Effective Amnesty Design
Overarching parameters for amnesty design
1. Minimum legal entrenchment
APPENDIX 2 Selected Excerpts from International Legal Instruments
1977 – Protocol II to the Geneva Conventions, Article 6.5
1989 – UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary, and Summary Executions, Article 19
1993 – UN Declaration on the Protection of All Persons from Enforced Disappearances, Article 18(1)
2004 – Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S2004616, Paragraphs 10, 32, and 64
Section IV. Basing assistance on international norms and standards
X. Filling a rule of law vacuum
XIX. Moving forward: conclusions and recommendations
2005 – Report of Diane Orentlicher, independent expert to update the Set of Principles to combat impunity, UN Doc. E/CN.4/2005/102/Add.1, Principles 19 and 28
APPENDIX 3 Selected Excerpts from Jurisprudence on Amnesties
Amnesty in respect of criminal liability
Amnesty in respect of the civil liability of individual wrongdoers
The effect of amnesty on any potential civil liability of the state
Opening Considerations: On the Perennial Relevance of Amnesties
Part I: The Debate on Amnesties
Part II: The Design of Amnesties
Final Considerations: On the Perennial Contestation of Amnesties
Necessary Evils
：Amnesties and the Search for Justice
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