Impunities

28 Pages Posted: 17 Nov 2017

See all articles by Mark Drumbl

Mark Drumbl

Washington and Lee University - School of Law

Date Written: November 2, 2017

Abstract

In a classic sense, ‘impunity’ means freedom from punishment for one’s harmful acts. Etymologically, the term springs from impunité in Middle French, which in turn derives from the Latin impune (in[not] poena [punishment, pain]) originally the ancient Greek poine [penalty]. Poena, the spirit of punishment in Roman mythology, attends to Nemesis, the goddess of retribution.

Impunity is a theme that has suffused literature, fables, and art throughout the ages; and in modern times impunity surfaces as among the concerns of the global human rights movement. Within this context, ‘fighting impunity’ for acts of atrocity arises as among the reasons driving the establishment of international criminal courts and tribunals.

Since impunity means freedom from punishment, any conversation about impunity must involve a discussion of poena. How to punish and what does punishment mean? This Chapter undertakes a rapid-fire discourse analysis of press releases from international criminal courts and tribunals, specifically the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), so as to impressionistically gauge how these institutions understand poena. While these press releases and other documents gesture towards a multiplicity of venues that can help fight impunity, they also underscore the central, and I would argue primary, place of courtrooms and jailhouses in the imposition of punishment and, therefore, in the fight against impunity. This fight, then, consolidates the courtroom, trial, and jailhouse as a synergized best practice and thereby markedly influences the institutional architecture of post-conflict justice.

This Chapter identifies a challenge to the quest of combating impunity through trials and imprisonment, namely, the reality that reducing impunity for one ‘side’ in a conflict may mean overlooking the abuses inflicted by the other ‘side’. On the other hand, and on a cautionary note, this Chapter questions what it actually would be like to live in a world without any impunity.

This Chapter is normative in that, as a matter of institutional politics, it seeks to further pluralize and diversify the range of actors and entities engaged in the fight against impunity. This Chapter argues that a starting point for this journey would be to re-imagine a broader understanding of poena as one that posits impunity as freedom from harmful consequences, recrimination, reparations, shame, or sanction. This Chapter then speculates how some post-conflict initiatives other than criminal trials might fit within this more capacious conceptualization of poena. These initiatives include informational transparency, forgetting, truth commissions, film, and reclaiming memory.

Keywords: Accountability, Civil Society, Complementarity, Complementary System of Criminal Justice, Courtrooms, Freedom From Punishment, Impunity Gap, Incarceration, International Criminal Courts, Jailhouses, Peace, Poena, Protection of Human Rights, Punishment, Reconciliation, Trials

JEL Classification: K00, K1, K14, K19

Suggested Citation

Drumbl, Mark, Impunities (November 2, 2017). Washington & Lee Legal Studies Paper No. 2017-17. Available at SSRN: https://ssrn.com/abstract=3070346 or http://dx.doi.org/10.2139/ssrn.3070346

Mark Drumbl (Contact Author)

Washington and Lee University - School of Law ( email )

Sydney Lewis Hall
Lexington, VA 24450
United States
540-458-8531 (Phone)
540-458-8488 (Fax)

HOME PAGE: http://law.wlu.edu/faculty/profiledetail.asp?id=11

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