by Louise Mallinder. Hart Publishing: Oxford and Portland, OR, 2008. 598pp. Hardback. $126.00/£60.00. ISBN: 9781841137711.Reviewed by Juan Jesus Mora Molina, School of Law, Universidad de Huelva, Spain. Email: juanjesus.mora [at] sc.uhu.es.
pp.228-230
Subtitles usually reveal the real matter that authors intend to develop. “Bridging the Peace and Justice Divide,” the subtitle to AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS, by Louise Mallinder, represents the real intention concerning serious research questions and deep convictions because of the consequencies observed in daily reality. How does one match “peace” and “justice? How is it possible to safeguard human rights when they are, in many cases, sacrificed in the interest of “pacification?” What happens to victims in political transitions? When can an amnesty law be considered fair and moral apart from legal? How far we can say “oblivion” is synonimous of “reconciliation?”
We can pose a huge number of questions such as the ones above, and the list will never end. Nevertheless, we can find a common point: that is, the focus is always related to re-establish a lost equilibrium, to restore the social peace and to recover the order. For all those reasons, theorizing without a solid foundation of information is not advisable. When exploring reality, we realise the true distance between the “ought-to be” and “to be,” and for that one can feel trapped by “ideal types.”
If an author hopes to remain coherent during all phases of research, he must identify a methodology suitable to assess the observations at hand and the theoretical framework he has chosen from the beginning. Mallinder has accomplished this quite well. What can be hidden “beyond legalism?” Through comparative empirical methods, Mallinder seeks a thicker understanding of the relationship between amnesties and transition from conflict. To do so, she constructs an extensive database of amnesty arrangements worldwide and explores the intersection between amnesties and international human rights law.
Now that we understand the primary theme of AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS, it is not hard to appreciate the centrality of amnesties to the process of conflict transformation. Nonetheless, Mallinder envisages the necessity of assessing the wider field of transitional justice – or studies which have been undertaken by means of legalistic, theoretical and jurisdiction-specific methods – and has created an extensive Amnesty Law Database containing information on 506 amnesty processes in 130 countries since the Second World War. [*229]
Why is it worth spending our time in reading this extraordinary essay? Mallinder has written an excellent handbook on the issue of amnesty. Indeed, she presents a comprehensive and original view of transitional justice and amnesty.
Page after page, chapter after chapter, variations in state practice are uncovered. One of the elementary questions this work tries to answer is why states, as a general rule, are keen on eschewing international justice. Although it is confirmed that generosity, at the time of adopting a legal measure, does not always work, there appears to be a trend against blanket amnesties. Mallinder’s thesis suggests that international actors should institute legal proceedings to erase the most abominable patterns of amnesties. The international community cannot look the other way while victims of crimes do not gain justice.
From the start, Mallinder makes her goals clear. The concept of “amnesty” does not mean a Faustian pact. There will not be amnesty if truth and justice are given up for political stability, till victims are not forced to forget for the sake of reconciliation, till all groups in conflict are not afraid to take risks in favor of healing political transitions. That is the approach AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS puts into practice. Furthermore, because amnesty laws are enected to respond to political crisis, we cannot accept that a political crisis is closed at the expense of weaker people. It is never satisfactory to support impunity. But, what happens with victims when full prosecution for all offenders is not possible? Can a blanket amnesty be tolerated?
Apart from that, Mallinder divides her book into three parts. Part I involves exploration of the motives and characteristics of amnesty laws, as well as bringing to light how amnesties can be tailored to suit diverse contexts, while exploring the theme of how amnesties can co-exist with other transitional justice mechanisms. Using a methodology based in case law from national and international courts, Part II deals with the implications of each adaptation on the amnisties’ validity at domestic and international levels; finally. Part III examines the responses of key stakeholder groups within political transitions in order to determine whether amnesties can be reconciled with the needs of each group.
Mallinder asserts five objectives: first, exploring “a realistic approach to the problems faced by status emerging from periods of mass violence involving large proportions of the population, where widespread prosecutions may be impractical or potentially dangerous;” second, analysing “the different facets of amnesty laws and their relationship to international human rights and humanitarian law in more detail than has been done previously;” third, considering “whether the needs of victims can be reconciled with amnesty laws;” fourth, making public “the behaviours of international actors in relation to amnesties” and researching “how international actors can coordinate their interventions with domestic efforts in order to complement and strengthen the domestic processes;” and fifth, “moving beyond a pure legal analysis of amnisties, by considering them within [*230] the wider political context in which they are introduced.”
According to the goals above, Mallinder’s approach acquires an interdisciplinary view, including literature and analysis that arise from disciplines such as criminology, political science, conflict resolution, international relations and psychology.
I would like to make reference again to one of the most original inputs that Mallinder has incorporated to her research activity – the Amnesty Law Database. Why was the creation of a law database needed to investigate the behaviours of states towards amnesty? According to Mallinder’s knowledge, there is no tool concerning amnesty as comprehensive as the Amnesty Law Database. Moreover, it is asserted to be the basis for the research. These two last affirmations are sustained by the fact that the scope of information and data included in this database cover amnesties all over the world after the Second World War – an extraordinary resource.
For this reason, Mallinder has produced a database that will be an essential device for anyone else in desire of studying the political, social and legal phenomenon of “amnesty.” To design the database, the Research Fellow in Law at Queen’s University Belfast has used two kinds of sources (primary and secondary) encompassing a vast multiplicity of documents, such as domestic legislation, academic writing, jurisprudence from national and international courts, international treaties, opinions given by very qualified people in monitoring treaties, statements by intergovernmental organisations, reports by states and NGOs, and articles from newspapers.
All Parts in AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS contain some chapters that develop the main issues. Part I is divided into four chapters dealing with such matters as enacting amnesties and granting immunity. Part II addresses such issues as implementation, prosecution, and court proceedings. Part III focuses upon legal obligations of various actors, rights of victims, and related issues. Together, they comprise a compelling story.
I do not want to finish this review without mentioning two factors. We must be grateful for the excellent bibliography and for the information in the three appendices: one presents a remarkable list of anmensty processes, a second one contains much informationa in relation to the international court system, and the last one concerns a guide of provisions for a universal jurisdiction legislation. Finally, using a case-study methodology Mallinder assesses thirteen very important state experiences (Uruguay, Uganda, Spain, Algerian, Chile, Bosnia-Herzagovina, Timor-Leste, Rwanda, South Africa, El Salvador, Colombia, Haiti and Sierra Leone).
For all the reasons, and for many others which the limitations of a review do not permit to set out, Mallider’s AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS should find a wide audience.
© Copyright 2009 by the author, Juan Jesus Mora Molina.
