Amnesty, human rights and political transitions : bridging the peace and justice divide
著者
書誌事項
Amnesty, human rights and political transitions : bridging the peace and justice divide
（Studies in international law, v. 21）
Hart, 2008
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注記
Bibliography: p. [433]-567
Includes index
内容説明・目次
内容説明
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."
目次
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
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