[TimorLesteStudies] New article: Jacobs, Dov, Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals

Bu Wilson bu.wilson at anu.edu.au
Thu Mar 18 09:41:28 EST 2010

Jacobs, Dov, Puzzling Over Amnesties: Defragmenting the Debate for  International Criminal Tribunals (March 1, 2010). THE FRAGMENTATION OF  INTERNATIONAL CRIMINAL LAW, T.M.C Asser Press, Forthcoming. Available at  SSRN: http://ssrn.com/abstract=1562088


  Amnesties have been in debate for some time now in international  circles.From an international law perspective, it should be pointed out  something that is sometimes lost in the vast literature on the topic in  international legal discussions: there is virtually no mention of  amnesties in international documents. As we will see, in the dense web  of human rights and international humanitarian law treaties, there is an  explicit mention of amnesties in only one provision: an additional  protocol to the Geneva Conventions relating to non-international armed  conflict. This is mostly true of international criminal law. Even if  some international(ized) tribunals include provisions on amnesties,  justified by a particular local situation, the Statute of the  International Criminal Court makes no mention of them. This leads to the  somewhat peculiar situation that entire theories are constructed on the  place of a concept in a legal order that makes hardly any reference to  that concept in its constitutive documents. Despite this, or maybe  because of this, amnesties have come up in relation to various fields of  international law (human rights, international humanitarian law, and  international criminal law) and in relation to various concepts of  international law (most notably the duty to prosecute). This has created  a risk of fragmentation on the issue that might threaten the unity of  the concept. To take stock of this fragmented situation, we have chosen  not to embark on a general theory on amnesties. Rather, we will try to  answer a simple question: how must international criminal tribunals deal  with amnesties for international crimes? The advantage of such a  specific question is that it will focus the discussion, while still  allowing us to draw a picture of the fragmented debate on amnesties in  international. 
The paper aims at defragmenting the debate on  amnesties by decomposing the various levels at which it is discussed.  First of all it looks at amnesties as perceived in various areas of  international law, specifically human rights law and international  humanitarian law. It then looks at how different international criminal  tribunals have dealt with the question of amnesties. It then considers  vertical fragmentation (national courts Vs International courts) and  pluridisciplinary fragmentation (perceptions from law, sociology,  philosophy and political science). In a final section, the article  proposes to see what are the relevant aspects of the debate specifically  for international tribunals and suggests that we should move away from  issues of legality to consider issues of recognition, which make the  debate far more easy to solve.  
In conclusion is considered the  broader question of amnesties in the context of the illusory goal of  the unity of the international legal order.  

Bu V.E. Wilson
ARC Centre of Excellence in Policing and Security  CEPS  | Regulatory Institutions Network  RegNet  | The Australian National University | Canberra ACT 0200 | AUSTRALIA | Mob: 0407 087 086
http://ceps.anu.edu.au | http://regnet.anu.edu.au

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