Amnesties, Transitional Justice and the Rule of Law

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.