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

AuthorLouise Mallinder,Kieran McEvoy
DOIhttp://doi.org/10.1111/j.1467-6478.2012.00591.x
Publication Date01 Sep 2012
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 3, SEPTEMBER 2012
ISSN: 0263-323X, pp. 410±40
Amnesties in Transition: Punishment, Restoration, and the
Governance of Mercy
Kieran McEvoy* and Louise Mallinder**
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.
INTRODUCTION
On 21 January 1977 the first act of the newly elected United States President
Jimmy Carter was to introduce an amnesty for Americans who had evaded
the draft during the Vietnam War. In making this hugely controversial move,
Carter's stated intention was to `show mercy' rather than continue to punish
those who were still liable to be arrested and prosecuted if they returned to
410
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, Queens University Belfast, Belfast BT7 1NN, Northern
Ireland
k.mcevoy@qub.ac.uk
** Transitional Justice Institute, University of Ulster, Jordanstown, Co.
Antrim BT37 0QB, Northern Ireland
l.mallinder@ulster.ac.uk
The authors wish to thank Ron Dudai, Maeve McCusker, Jonathan Simon, Richard
Sparks, and the anonymous referees for comments on earlier versions of this article.
the United States and in so doing to seek to `heal the nation's wounds' as the
country attempted to move on from its bitter and divisive conflict.
1
As Carter
explained, `I think it's time to get the Vietnamese War over with. I don't
have any desire to punish anyone . . . Just come back home, the whole thing
is over.'
2
While this article is not an analysis of the ways presidential
pardons and the like are used in settled democracies,
3
it does explore the
same nexus of amnesties, punishment, restoration, and mercy in other
societies seeking to move on from violent conflict.
Amnesties are often framed as being necessary for `the greater good' in
such societies. In effect, victims of the most egregious crimes are effectively
asked to forego their individual desire for punishment ± often viewed as
synonymous with retributive justice ± in the interests of broader collective
objectives.
4
The article draws on over a decade of fieldwork and from a
major database of over 530 amnesty laws in 138 countries between 1945 and
2011 created by Mallinder.
5
In many of the countries studied, there is a
history of political or ethnic violence, a disregard for `the rule of law', and a
broad spectrum of differing levels of normative and practical attachment to
democratic values and practices. In such societies, law becomes an important
practical and symbolic break with the past, and rights discourses, in par-
ticular, are seen as key to publicly demonstrating a new found commitment
to legitimacy amongst the community of nations.
6
In such contexts, account-
ability often appears synonymous with retribution and amnesties a byword
for impunity.
We begin the article by exploring in a little more detail the notion of
transitional justice and the historic al and contemporary meanings of
amnesties in the field. We then examine the outworking of amnesties more
closely through three of the key themes in the punishment and society
411
1 D. Schichor and D. Ranish, `President Carter's Vietnam Amnesty; An Analysis of a
Public Policy Decision' (1980) 10 Presidential Studies Q. 251±71.
2 L. Baskir and W. Strauss, Chance and Circumstance: The Draft, the War, and the
Vietnam Generation (1978) 227.
3 J. Crouch, The Presidential Pardon Power (2000); C. Strange (ed.), Qualities of
Mercy: Justice, Punishment and Discretion (2001).
4 S. Cullinan, Torture Survivors' Perceptions of Reparation (2001), at
www .re dres s.or g/d ownl oad s/re par atio n/T SPR. pdf> ; T. Ma dlin goz i, `On
Transitional Justice Entrepreneurs and the Production of Victims' (2010) 2 J. of
Human Rights Practice 208±28.
5 Since 1995 the authors have conducted fieldwork in a range of transitional or
conflicted jurisdictions which have considered amnesty or amnesty-like measures.
These have included Argentina, South Africa, Uruguay, Uganda, Colombia,
Rwanda, Sierra Leone, Israel/Palestine, and Northern Ireland. This work was
variously funded by the Joseph Rowntree Charitable Trust, Atlantic Philanthropies
and, most recently, the AHRC (Grant No AHRC AH/E008984/1 Beyond Legalism:
Amnesties, Transition and Conflict Transformation).
6 K. McEvoy, `Beyond Legalism: Towards a Thicker Understanding of Transitional
Justice' (2007) 34 J. of Law and Society 411±40.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School

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