Beyond Legalism: Amnesties, Transition and Conflict Transformation
Lead Research Organisation:
Queen's University 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.
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.
Publications
McEvoy K
(2012)
Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy
in Journal of Law and Society
McEvoy, K.
(2008)
Article Two Compliant Truth Recovery and Guarantees of Non-Prosecution
Mallinder, L.
(2012)
Building Peace in Post-Conflict Situations
Mallinder, L.
(2012)
Encyclopedia of Transitional Justice
Mallinder, L.
(2012)
Encyclopedia of Transitional Justice
Mallinder, L.
(2012)
Encyclopedia of Transitional Justice
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 | Contribution to a national consultation/review |
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 | 05/2015 |
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 |