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Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy

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Abstract:

Despite the much vaunted triumph of human rights, amnesties continue to be a frequently used technique of post‐conflict transitional justice. For many critics, they are synonymous with unaccountability and injustice. This article 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 theorized. 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. Rather than mere instruments of impunity, amnesties 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.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1467-6478.2012.00591.x

Affiliations: 1: School of Law, Queens University Belfast, Belfast BT7 INN, Northern Ireland 2: Transitional Justice Institute, University of Ulster, Jordanstown, Co. Antrim BT37 0QB, Northern Ireland

Publication date: September 1, 2012

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