Beyond Legalism: Amnesties, Transition and Conflict Transformation

Lead Research Organisation: Queen's University of Belfast
Department Name: Sch of Law

Abstract

This project aims to develop a 'thicker' understanding of the relationship between amnesty and conflict transformation under a number of overlapping themes.
1. Amnesty and Public Power
The shape and content of amnesties are directly related to prevailing political conditions. Thus amnesties can be used by military juntas to prevent investigations or transitional regimes to avert coups. In democracies, amnesties may result from the practical problems of prosecutions; or from desires to undermine political opponents, deflect criticism, or encourage insurgents to disarm. Legal understandings of amnesty must therefore be enhanced by more rounded theoretical understandings of political power and the construction of legitimacy.
2. Amnesty, Truth Recovery and Public Memory
Amnesties have traditionally denoted efforts to erase crimes from the public memory, and were justified by asserting that reconciliation requires forgetting past pain and suffering. However, recent amnesties have been combined with truth-recovery mechanisms to promote memorialisation, encourage perpetrators' responsibilisation, and create an impartial historical record. Thus the intersection between truth, memory and amnesia is a crucial element in a thicker understanding of the phenomenon.
3. Amnesty and Accountability
Amnesty is traditionally seen as undermining accountability and creating impunity for perpetrators. However, we wish to explore further the notion of amnesty as a means for achieving accountability by developing an argument that in dictatorial regimes previously characterised by lawlessness, attempts to demonstrate respect for the law by enacting statutes to grant state agents immunity may actually symbolise a putative greater commitment to the rule of law.
4. Amnesty and the Construction of Victim and Perpetrator
Amnesties have traditionally been used to consolidate peace by providing incentives for combatants to disarm. They can be the most painful aspect of transition for victims; proof positive of perpetrators' impunity, the privileging of the pragmatic need to demobilise such individuals, and suggestive of the victims' 'worthlessness'. Thus, amnesties have historically helped to develop a unidimensional victim/offender dichotomy. However, recent amnesties, such as the Ugandan amnesty's targeting of child soldiers, challenge such monochromatic views. This research would therefore seek to explore more expansively the role that amnesties play in developing these simplistic dichotomies
5. Amnesty, Forgiveness and Reconciliation
In amnesty processes, victims are often urged to forgo the desire to punish in favour of 'letting go' of the past or 'building a better future'. For example, the South African TRC's amnesty has been criticised for the pressure applied to victims to forgive perpetrators in the interest of broader national reconciliation. In effect, in many locations, religious ideas have been incorporated into secular processes of transition. Thus amnesties become a useful practical and symbolic site to explore further what is meant by the highly contested notions of forgiveness and reconciliation and their relationship to conflict transformation
6. Amnesty and the Limitations of Legalism
Much contemporary literature on transitional justice is dominated by legal discourses. The creation of major institutions such as the ICC and the ad hoc and hybrid tribunals have all given institutional impetus to law's well-established seductive qualities. Law's dominance inhibits interdisciplinary understandings of conflict. It encourages a state-centred approach lacking regard for ground-level developments in wartorn communities, it privileges 'western' norms over indigenous traditions, and limits the ownership of transition to societal elites who understand legal complexities and language. Existing literature on amnesties provides an excellentcase study for this broader critique of the domination of legalism in the understanding of transition
 
Description In the Beyond Legalism: Amnesties, Transition and Conflict Transformation, McEvoy and Mallinder (with Prof Brice Dickson) conducted a comparative examination of amnesties in Argentina, South Africa, Uganda, Uruguay, and Bosnia-Herzegovina. In all these places, the use of amnesties was controversial in different ways and there was intense debate about the utility, viability and desirability of past-related prosecutions. Broadly, in each jurisdiction 'dealing with the past' required developing bespoke methods of managing the intersection between amnesties, prosecutions, truth recovery and other means of addressing historical human rights violations.
Exploitation Route We were awarded Follow-on Funding by the AHRC to take forward our project findings in Northern Ireland. This subsequent project entitled Amnesties, Prosecutions and the Public Interest in the Northern Ireland Transition has played an influential role in building the capacity of politicians, policy makers and civil society actors in the region, particular in the context of the recent political negotiations on dealing with the legacy of Northern Ireland's conflict.
Sectors Government, Democracy and Justice,Security and Diplomacy

 
Description Despite their prevalence, the academic and policy understanding of amnesties as a tool of conflict transformation have long tended to be legalistic, atheoretical and jurisdiction specific. At an academic level, the publications arising from this project have developed and enhanced understandings of amnesties beyond a purely legal focus. In addition, the Amnesty Law Database is designed to assist other scholars, policy makers and practitioners in deepening their understanding of the phenomenon. In addition to the usage of the research in the international context, it has also featured prominently in local debates on dealing with the past in Northern Ireland
First Year Of Impact 2009
Sector Government, Democracy and Justice,Security and Diplomacy
Impact Types Societal

 
Description Advocats Sans Frontieres in Uganda
Geographic Reach Africa 
Policy Influence Type Citation in other policy documents
Impact Mallinder was asked to contribute to the research and drafting of Advocats Sans Frontieres, 'Amnesty: An Olive Branch in Justice' (2012). The testimonial from ASF notes that Mallinder's contribution enabled ASF to identify loopholes in Uganda's amnesty legal framework and to come up with practical recommendations to ensure that amnesty can contribute to peace and justice. This document was widely used by policymakers and civil society actors within Uganda.
URL http://www.asf.be/wp-content/publications/ASF_AmnestyAdvocacyTool_2012_DEF.pdf
 
Description Consultative Group on the Past, Northern Ireland
Geographic Reach Local/Municipal/Regional 
Policy Influence Type Participation in a national consultation
Impact During the life of the project, changes in the local political context in Northern Ireland significantly increased the relevance and utility of the research. In June 2007 the then Prime Minister Tony Blair established a major initiative entitled 'The Consultative Group on the Past' (CGP) to oversee a public consultation on how to deal with Northern Ireland's past and to make recommendations to the government. The project team met with CGP on several occasions and in our subsequent written submission we discussed how a truth recovery process in Northern Ireland could encourage offenders to disclose information about their violent actions. Many of our suggestions were incorporated into the CGP's final report and we have email correspondence from their Executive Secretary discussing the impact of our contribution on the group's work. This impact was highlighted by the AHRC as an example of academic research that improves public policy (see AHRC, AHRC Economic Impact Baseline, available at http://www.ahrc.ac.uk/About/Policy/Documents/baseline07-08.pdf; see also AHRC, AHRC Economic Impact Reporting Framework http://www.ahrc.ac.uk/About/Policy/Documents/eirf2009.pdf).
URL http://cain.ulst.ac.uk/victims/docs/consultative_group/cgp_230109_report.pdf
 
Description Contributing to JLOS Policies in Uganda
Geographic Reach Africa 
Policy Influence Type Citation in other policy documents
Impact In 2012, Mallinder engaged in a consultation led by the Ugandan Coalition of the ICC (UCICC) and HURINET-U. This required Mallinder to take the findings from her research on how amnesties can link to other forms of transitional justice and adapt them into a series of country-specific briefs for non-academic audiences. One brief entitled 'Implications of the Expiry of the Amnesty Law' that was published in the UCICC's magazine, The Forum (2012). These engagements fostered discussion among stakeholders in Uganda on the future form that the amnesty could take and recommendations proposed by Mallinder were incorporated into a report for the Government of Uganda, produced by the Justice Law and Order Sector's Transitional Justice Working Group, which is composed of representatives of key government departments. Responding to requests from the US State Dept, Mallinder shared the brief on the expiry of the amnesty with American policymakers.
URL http://www.jlos.go.ug/index.php/document-centre/document-centre/cat_view/10-transitional-justice/100...
 
Description Judicial training in Uganda
Geographic Reach Africa 
Policy Influence Type Influenced training of practitioners or researchers
Impact Mallinder was invited to facilitate a training programme for judges from the Ugandan International Crimes Division and Constitutional Court on the legal status of amnesties. Her presentation explored the status of amnesties under international criminal law and the case law of national and international courts, and it questioned the emergence of a prohibition on amnesties for international crimes The Constitutional Court does not generally cite academic research but the approach advocated by Mallinder is reflected in the judgment.
 
Description DFID
Amount £4,800,000 (GBP)
Organisation Government of the UK 
Department Department for International Development (DfID)
Sector Public
Country United Kingdom
Start 06/2015 
End 06/2018
 
Title The Amnesty Law Database contains information on 518 amnesty processes in 138 countries 
Description Unique database constructed by Mallinder on amnesties around the world since 1945 
Type Of Material Database/Collection of data 
Year Produced 2010 
Provided To Others? Yes  
Impact Key reference point in international debates on amnesties around the world 
 
Description McEvoy Appointed to the Presidential High Commission for the Reintegration of Ex-Combatants Colombia 
Organisation Government of Colombia
Department Office of the President, Colombia
Country Colombia 
Sector Public 
PI Contribution Provided expert advice to Colombian government on the reintegration of ex-combatants
Collaborator Contribution Provided access to data re the reintegration of ex-combatants in Colombia
Impact None
Start Year 2008
 
Description Partnership with five international legal / research consultants 
Organisation Institute for Legal and Social Studies of Uruguay
Country Uruguay 
Sector Charity/Non Profit 
PI Contribution The Beyond Legalism team recruited five international consultants to collaborate in our international field research. We have worked closely with them to contribute to the bespoke background research paper for each jurisdiction authored by Mallinder, to create research materials relevant to the fieldwork, and to manage the fieldwork logistics.
Collaborator Contribution Each international partner provided comments on the detailed background research paper, liaised with a host of national and international stakeholders relevant to the research in their jurisdiction, set up and co-ordinated a series of semi-structured interviews in the field, and liaised closely with us on all related logistical, ethical and research considerations.
Impact In recruiting and developing relations with participants in our research programme our international consultants liaised with a wide range of governmental, professional and voluntary organisations (local national and international legal firms, legal collectives, NGOs, senior politicians and advisors, academics and others).
Start Year 2007
 
Description Partnership with five international legal / research consultants 
Organisation South African Historical Archive
Country South Africa 
Sector Charity/Non Profit 
PI Contribution The Beyond Legalism team recruited five international consultants to collaborate in our international field research. We have worked closely with them to contribute to the bespoke background research paper for each jurisdiction authored by Mallinder, to create research materials relevant to the fieldwork, and to manage the fieldwork logistics.
Collaborator Contribution Each international partner provided comments on the detailed background research paper, liaised with a host of national and international stakeholders relevant to the research in their jurisdiction, set up and co-ordinated a series of semi-structured interviews in the field, and liaised closely with us on all related logistical, ethical and research considerations.
Impact In recruiting and developing relations with participants in our research programme our international consultants liaised with a wide range of governmental, professional and voluntary organisations (local national and international legal firms, legal collectives, NGOs, senior politicians and advisors, academics and others).
Start Year 2007
 
Description "Closing Guantanamo - Lessons from Abroad", Invited Keynote, 35th Annual Wolfgang Friedmann Conference, Human Rights Program, University of Columbia NY. 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact Talked sparked questions and discussion afterwards

Invited back to speak at several conferences in Columbia, New York
Year(s) Of Engagement Activity 2009
 
Description 'Amnesties, Immunities and Truth-Seeking', CAJ Just News, August 2010 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Professional Practitioners
Results and Impact Mallinder wrote an article entitled 'Amnesties, Immunities and Truth-Seeking' for the JustNews Magazine of the Committee on the Administration of Justice, Northern Ireland's leading human rights NGO.

Mallinder was asked to write further articles for the magazine
Year(s) Of Engagement Activity 2010
URL http://www.caj.org.uk/files/2010/10/06/Septemberfinalversion_Layout_1.pdf
 
Description 'Amnesty and Dealing with the Past', CAJ Just News, January 2009 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Professional Practitioners
Results and Impact Mallinder wrote an article entitled 'Amnesty and Dealing with the Past', for the JustNews Magazine of the Committee on the Administration of Justice, Northern Ireland's leading human rights NGO.

Mallinder was asked to contribute again to the magazine.
Year(s) Of Engagement Activity 2009
URL http://www.caj.org.uk/files/2009/01/01/2009January.pdf
 
Description 'Amnesty as a Tool for Seeking the Truth about Northern Ireland's Past?', CAJ Just News, February 2008 (with Kieran McEvoy) 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Professional Practitioners
Results and Impact Mallinder and McEvoy wrote an article entitled 'Amnesty as a Tool for Seeking the Truth about Northern Ireland's Past?' for the JustNews Magazine of the Committee on the Administration of Justice, Northern Ireland's leading human rights NGO.

Both authors were asked to contribute again to the magazine.
Year(s) Of Engagement Activity 2008
URL http://www.caj.org.uk/files/2008/01/01/2008February.pdf
 
Description Countering Violent Extremism: Community Engagement Programmes in Europe, Plenary Address, Qatar International Academy For Security Studies 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Talk led to invite to address another conference of security experts on the potential positive role of former combatants in countering violent extremism.

Production of a report with a former Assistant Chief Constable on the issue.
Year(s) Of Engagement Activity 2012
 
Description Expert evidence to Irish Parliament 'Legacy Issues and Victims/Survivors of Violence: Benchmarks for Legitimacy in the SHA Legislation. 
Form Of Engagement Activity A broadcast e.g. TV/radio/film/podcast (other than news/press)
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Expert legal analysis on legacy issues related to pending legislation on dealing with the past. Presentation and report also referred to role of lawyers in same.
Year(s) Of Engagement Activity 2018
 
Description FCO workshop on transitional justice in Syria 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Mallinder was invited to participate in a Foreign and Commonwealth Office workshop on transitional Justice in Syria, London, 8 May 2012. The workshop was designed to bring together leaders of the Syrian opposition with experts on transitional justice and to help these leaders begin to prepare documentation work while the conflict is ongoing and to plan for transitional justice following the end of the conflict. The FCO were familiar with Mallinder's publications on amnesty and she was invited to present on the role of 'amnesties, vengeance and reconciliation'.

This initiative did not lead to concrete progress due to the ongoing war in Syria.
Year(s) Of Engagement Activity 2012
 
Description Feature Article in Belfast Telegraph 'Is the price of an amnesty for the security forces just too high to contemplate?' June 19th 2017 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Policymakers/politicians
Results and Impact This was a feature article on the legality of amnesties in dealing with the past and implications of same for the peace process
Year(s) Of Engagement Activity 2018
 
Description Feature Article in the Guardian 'Investigations into the Troubles are vital - and that includes ex-soldiers.' 11th May 2018 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact This was a feature article in the guardian newspaper addressing key issues related to dealing with the past in Northern Ireland concerning viability of an amnesty for soldiers and its relationship to truth recovery.
Year(s) Of Engagement Activity 2018
 
Description Feature article in Belfast Telegraph 'Stormont legacy issues impasse can be overcome with legal imagination.' 5th April 2017 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Policymakers/politicians
Results and Impact This was a feature article in the main Unionist paper in Northern Ireland proposed some legally imaginative solutions to the political impass on dealing with the past
Year(s) Of Engagement Activity 2017
 
Description Feature newspaper article in the Irish Times The Legacy of the Troubles and the Law March 30th 2018 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact This was a feature article in the Irish Times, the most respected broadsheet newspaper in Ireland on the role of lawyers and law in dealing with the past in Northern Ireland
Year(s) Of Engagement Activity 2018
 
Description Human Rights, Legacy and Cultures of Violence in Northern Ireland. Plenary address at Conference, Hebrew University Law School 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Postgraduate students
Results and Impact This was an invited plenary address on the role of lawyers in engaging in research and activism on dealing with the past.
Year(s) Of Engagement Activity 2018
 
Description Interview with French newspaper, Journal du Pays Basque 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Public/other audiences
Results and Impact In light of her expertise on South Africa gained in the Beyond Legalism project, Mallinder was interviewed by the French newspaper, Journal du Pays Basque (9 November 2012). The article compared the experience of prison release schemes in Northern Ireland and South Africa.

We are unaware of any notable impacts.
Year(s) Of Engagement Activity 2012
URL http://www.lejpb.com/paperezkoa/20121109/371478/fr/"Les-collectifs-prisonniers-ont-joue-role-prepond...
 
Description Mallinder presentation at Law and Society Association conference 2012 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Postgraduate students
Results and Impact Louise, Mallinder 'Amnesties, Punishment and the Calibration of Mercy in Transition' Law and Society Association Annual Conference, Honolulu, June 2012
Year(s) Of Engagement Activity 2012
 
Description Mallinder presentation at Law and Society conference 2013 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Postgraduate students
Results and Impact Mallinder presented 'Transition, Democracy and the Erosion of South America's Amnesties', Law and Society Association Annual Conference, Boston, 29 May 2013
Year(s) Of Engagement Activity 2013
 
Description Op-ed for The Conversation 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Public/other audiences
Results and Impact In light of her expertise on Argentina gathered in the Beyond Legalism project, Mallinder was invited to author an op-ed entitled 'Grandmother's Reunion Highlights Argentina's Long Road to Recovery from its "Dirty War"' for The Conversation (11 August 2014). The article was shared on social media.

The editors of The Conversation have asked Mallinder to contribute further articles.
Year(s) Of Engagement Activity 2014
URL http://theconversation.com/grandmothers-reunion-highlights-argentinas-long-road-to-recovery-from-its...
 
Description Political Imprisonment, Human Rights and Transition Confinement and Human Rights in An Age of 'War On' Discourses Invited Keynote, Rehabilitation and Research Centre for Torture Victims, Copenhagen, Denmark 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact talk sparked questions and discussion afterwards

None
Year(s) Of Engagement Activity 2009
 
Description The UCICC Forum Magazine 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact Mallinder was invited to author the following article: 'Implications of the Expiry of Uganda's Amnesty Act' in The Forum, Issue No 2 (Ugandan Coalition of the International Criminal Court, Kampala, July 2012) pp. 27-30.

As described under impact on public policy, this engagement was part of a series of activities that impact on policymaking in Uganda on the amnesty.
Year(s) Of Engagement Activity 2012