Amnesties, Transitional Justice and the Rule of Law

IF 2.9 2区社会学 Q1 LAW

Hague Journal on the Rule of Law Pub Date : 2023-11-03 DOI:10.1007/s40803-023-00199-9

Patrick Lenta

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Abstract

Abstract The aim of this paper is to assess an objection to amnesties conferred in transitional justice contexts: that they violate the rule of law. The paper begins by setting out the objection and presenting three possible replies to it. Each is argued to be unsatisfactory. The central contention of the paper, namely that the success of the objection depends on amnesties’ terms and the reasons for which they are introduced, as well as on what conception of the rule of law is operative, is then presented. The argument that amnesties violate the rule of law on account of public international law, or national constitutions containing bills of rights, prohibiting their use without exception is then rebutted. Few amnesties violate the rule of law for this reason. Finally, the paper addresses a further rule of law-based objection to amnesties that is related to, yet distinct from, the objection that amnesties violate the rule of law. According to this second rule of law-based objection, amnesties prevent, or at least hinder, the restoration of the rule of law in post-conflict societies. This objection is countered by demonstrating that amnesties do not always promote the rule of law less effectively than trials and punishment and may even, in some cases, be essential for the restoration of the rule of law.

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大赦、过渡时期司法和法治

摘要本文的目的是评估对过渡时期司法背景下授予大赦的反对意见:它们违反了法治。论文首先提出了反对意见，并提出了三种可能的回答。每一个都被认为是不令人满意的。然后提出了本文的中心论点，即反对的成功取决于大赦的条款和引入大赦的原因，以及什么样的法治概念是有效的。大赦违反法治的论点是由于国际公法或载有权利法案的国家宪法，毫无例外地禁止大赦。由于这个原因，很少有大赦违反法治。最后，本文进一步阐述了一种基于法治的对大赦的反对意见，这种反对意见与大赦违反法治的反对意见有关，但又不同。根据第二种以法治为基础的反对意见，大赦阻止或至少阻碍在冲突后社会恢复法治。反驳这一反对意见的办法是，大赦在促进法治方面并不总是不如审判和惩罚有效，在某些情况下甚至可能是恢复法治所必需的。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Hague Journal on the Rule of Law LAW-

CiteScore

4.10

自引率

18.20%

发文量

期刊介绍： The Hague Journal on the Rule of Law (HJRL) is a multidisciplinary journal that aims to deepen and broaden our knowledge and understanding about the rule of law. Its main areas of interest are: current developments in rule of law in domestic, transnational and international contextstheoretical issues related to the conceptualization and implementation of the rule of law in domestic and international contexts;the relation between the rule of law and economic development, democratization and human rights protection;historical analysis of rule of law;significant trends and initiatives in rule of law promotion (practitioner notes).The HJRL is supported by HiiL Innovating Justice, The Hague, the Netherlands and the Paul Scholten Center for Jurisprudence at the Law School of the University of Amsterdam, the Netherlands.Editorial PolicyThe HJRL welcomes contributions from academics and practitioners with expertise in any relevant field, including law, anthropology, economics, history, philosophy, political science and sociology. It publishes two categories of articles: papers (appr. 6,000-10,000 words) and notes (appr. 2500 words). Papers are accepted on the basis of double blind peer-review. Notes are accepted on the basis of review by two or more editors of the journal. Manuscripts submitted to the HJRL must not be under consideration for publication elsewhere. Acceptance of the Editorial Board’s offer to publish, implies that the author agrees to an embargo on publication elsewhere for a period of two years following the date of publication in the HJRL.