Exile, Amnesty and International Law
Reprinted in part in Louis Henkin, Laurence Helfer, et al, Human Rights, 2nd Edition, 2008
82 Pages Posted: 28 Apr 2005 Last revised: 11 Sep 2020
Date Written: April 1, 2006
This article examines recent state and international practice regarding amnesties for jus cogens crimes, particularly cases from Latin America as well as from international courts and tribunals, and explores the transnational legal dialogue between courts, and to a lesser degree, legislatures, that has led to international norm creation in this area, strengthening the prohibition against amnesties considerably. At the same time, constraints upon the exercise of universal jurisdiction, whether imposed by legislatures, articulated in judicial opinions, or created by international treaty, have provided a political check to the otherwise unbounded exercise of universal jurisdiction by states and the exercise of universal international jurisdiction by the international community taken as a whole. Indeed, the article suggests that the question of amnesties for war crimes, crimes against humanity and genocide raises profound questions about the nature and form of international criminal law - its substantive content, temporal dimensions, and constitutional status. The article challenges the conventional wisdom that "swapping justice for peace," is morally and practically acceptable. Instead, what longitudinal studies we have suggest that amnesty deals typically foster a culture of impunity in which violence becomes the norm, rather than the exception. The article considers amnesties from a jurisdictional approach, in which domestic, transnational and international amnesties are considered in both horizontal and vertical perspective. Finally, while noting that international criminal justice is not a "one size fits all" proposition, and that carefully tailored and culturally sensitive approaches suitable to individual cases is required, the article underscores the importance of the emerging normative and legal structure apparent in international criminal law, as well as the need for imperial powers such as the United States to submit themselves to the rule of law in order to enhance the legitimacy and effectiveness of the rules.
Keywords: international criminal law, war crimes, crimes against humanity, genocide, amnesty, universal jurisdiction, international law, General Pinochet, Special Court for Sierra Leone, international court of justice, International Criminal Court, transnational legal process, imperialism; jus cogens
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