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From Oblivion to Memory: A Blueprint for the Amnesty

Mark Freeman: Necessary Evils: Amnesties and the Search for Justice, Cambridge University Press, New York, 2009, 352 pp, ISBN 978-0-521-89525-5 (hardback)

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This Review Essay examines Mark Freeman’s thoughtful book, Necessary Evils: Amnesties and the Search for Justice. One of the book’s core arguments is that amnesties from criminal prosecution, however unpalatable to liberal legalist sensibilities, should not be entirely purged from the toolbox of post-conflict transitions. Although advancing this argument, Freeman also struggles with it, and ultimately builds a very restrained and heavily technocratic defense of the amnesty. This Review Essay weighs this argument, among others, on its own terms and also within the context of recent events that post-date the book’s publication. The result is a vibrant exposition of the limits of law, and the limits of politics, in transcending episodes of massive human rights violations.

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  1. According to Freeman, “adherence to the current UN position would effectively prevent states from adopting the South African model or any comparable variant thereof. In other words, the model that rightly or wrongly inspired so many around the world—not least, as of 1998, the UN Secretary-General himself—is in direct violation of the UN position” (92).

  2. The question whether the ICC would respect amnesties issued by non-parties in situations other than those referred by the Security Council is more contested. Freeman touches on this aspect (79).

  3. This also reflects the position of the Special Court for Sierra Leone. That said, customary international law accords incumbent heads of state personal immunity from prosecution by foreign national courts asserting universal jurisdiction over extraordinary international crimes.

  4. Spanish judge Baltasar Garzón reportedly was disbarred on charges that he overstepped his jurisdiction when he began to investigate these alleged abuses; in a fascinating turn of events, human rights lawyers have filed process under universal jurisdiction in Argentina regarding Franco-era crimes (Valente 2012).

  5. Slye specifically notes: “Post-Franco Spain is the best illustration of the assertion that forced amnesia, whether through a formal amnesty or an informal system of impunity, provides a stable peace. Spain responded to the end of the Franco regime not by engaging in inquiries and prosecutions for clear violations that occurred under the dictator but by refusing to even acknowledge that violations occurred” (Slye 2000, p. 107).

  6. For example, Freeman describes his design requirements as helping to “limit the harm [amnesties] cause to the international rule of law and victims’ rights” (xv). This description falls well short of a forceful justification for the greater good that the necessary evil of the amnesty might yield. He begins his chapter on the design of amnesties with the following: “Accepting the regrettable fact that new amnesties will continue to arise and tend to remain in force years and decades later, this part of the book presents an original amnesty design methodology to help limit the damage that amnesties exact …” (110).

  7. See also Freeman at 184 (underscoring the importance of his methodology to “better contain” the “ill effects” of amnesties on the international rule of law and victims’ rights).

  8. At 112–122, Freeman provides further details regarding what “last recourse” would mean in practice. He particularizes five types of leniency options that are preferable to amnesty: omission of criminal accountability, reduced sentence schemes, alternative sentence schemes, use immunity schemes, and third-country asylum. I remain somewhat perplexed by his suggestion that third-country asylum is preferable to amnesty from a leniency avoidance perspective. To me, third-country asylum conjures up stereotypical images of ex-dictators, living in opulent villas strung along distant sun-kissed beaches, and comfortably ensconced beyond the reach of penal jurisdiction or the tensions—as hauntingly unfurled in Roman Polanski’s adaptation of Dorfman’s Death and the Maiden—in having to coexist with survivors back home.

  9. A second appendix contains selected excerpts from international legal instruments that are germane to amnesties. A third appendix presents sections of three judicial decisions that discuss amnesties (albeit in one case, Prosecutor v. Kondewa [Special Court for Sierra Leone Appeals Chamber], a separate opinion).

  10. Freeman lists the following as further guidelines to inform the understanding of this sub-criterion (so, in a sense, as sub-subcriteria): (1) the distinction between political and ordinary offenses; (2) express exclusion of human rights crimes; (3) express exclusion of crimes motivated by greed; (4) express exclusion of crimes motivated by malice; and (5) express exclusion of selected context-specific crimes.

  11. Sub-subcriteria here are: (1) distinctions according to affiliations and subaffiliations; (2) distinctions according to rank; (3) distinctions according to forms of criminal participation; (4) express exclusion of beneficiaries of prior amnesties; (5) express exclusion of foreign mercenaries; and (6) express exclusion of specific individuals.

  12. Sub-subcriteria here are: (1) immunity of individuals from prospective forms of liability; (2) effect on ongoing investigations, subpoenas, warrants, and trials; (3) effect on prior judgments and sentences; (4) effect on personal records; (5) effect on third parties; and (6) variation in legal consequences depending on crime or rank.

  13. “[W]e also should recall that an amnesty’s adoption does not represent the definitive end even of domestic prosecution possibilities. It may mark instead the beginning of a long period of amnesty contestation through national courts and legislatures” (182).

  14. The erosion may involve political action or judicial intervention or (as was the case in Chile) an admixture of both.

  15. Although Kwoyelo assumed senior status within the LRA, his family turns to the narrative of the helplessness of the child soldier to encourage his release. “His mother […] [said] “‘…God knows that Kwoyelo was also snatched from us like other child soldier[s], and deserves forgiveness from everyone, because he did not choose that life, he was forced into it and also it was the Uganda government that let him down.’” (Onoro 2011). A similar narrative has been spun by supporters of Dominic Ongwen, an LRA leader indicted by the ICC, who had initially been forcibly abducted into the LRA at the age of eight. The ICC Office of the Prosecutor is skeptical of the persuasiveness of such argumentation in the case of a person recruited as a child but who commits crimes as an adult. If Ongwen were to surrender and be granted an amnesty domestically in Uganda, this amnesty would have no effect upon the ICC’s indictment or ability to prosecute him.


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Correspondence to Mark A. Drumbl.

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Drumbl, M.A. From Oblivion to Memory: A Blueprint for the Amnesty. Criminal Law, Philosophy 6, 467–477 (2012).

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