After Sierra Leone’s civil war, President Kabbah oversaw creation of a Truth and Reconciliation Commission despite his government’s previously strong preference for amnesty, seen as a precondition to rebels’ non-relapse into violence, just before the intervention of the Special Court for Sierra Leone. An unexpected candidate for concealing – one would expect it to recruit, as it normally does – the country successfully concealed a de facto, targeted amnesty for most combatants. Confusion and rumours surrounding the TRC and its relationship to the SCSL limited the amount of truth that would be told, thereby also limiting the information available to the SCSL, leaving it less able to indict. The British, who set the tone for other European donors, had strong incentives to overlook whatever evidence of this amnesty did rise to the surface. If they challenged the Kabbah government on this point, the result could be state collapse and the British might be called upon to intervene in addition to gaining a reputation as a global bully. Because Sierra Leone’s dissembling and its success in doing so both derive from the country’s extreme fragility, the case draws particular attention to the problems of framing its “invitation” of the SCSL as truly consensual.

In Chapter 4, the second vantage point of the book is introduced, that of the German citizen. It describes a record of how average men and women, from different backgrounds and living in different occupied territories, experienced the campaign to eradicate Nazism; how it impacted their daily lives and what they felt about it. Journal entries, private letters, newspapers, memoirs, and interviews chronicle much of the everyday denazification experience. An examination of on-the-ground activities reveals that the ideological cleanse was tethered to employment, and hence, political screening. If a shared denazification experience existed, it was the completion of Fragebögen. This chapter also shows that the consequences of denazification were more severe than what is often suggested. The form had the potential of permanently altering one’s material security, as well as professional and community status. Going through political screening was emotionally exhausting. This chapter includes a detailed case study of denazification experiences in Hersfeld (Hesse), a seemingly typical German district in the US occupation zone.

This chapter discusses the place of conflict in transitional justice. Building on a range of historical real-life examples, it argues that conflict is an important rather than incidental part of many, if not all, transitional justice processes. The chapter initially focuses on value conflicts and then turns to conflicts of interests (political power, offices, money, etc.). Drawing on recent realist work in political theory, the chapter argues that it is time to give politics its due and idealisation a rest in transitional justice. This is not an argument against ideals, but against an approach that is idealistic in the wrong sense, in such a way as to suppress, erase from view, real experiences of conflict. Towards the end, the chapter explores recent attempts in the transitional justice literature to take conflict more seriously, particularly Christine Bell’s account of transitional justice as bargaining.

This chapter claims that the operation and success of a leniency programme are premised on a carrot-and-stick approach that is expected to lead to a race for confession, as the highest and sometimes only reward – depending on the design of the leniency programme – is for the first cartel member to defect and cooperate with the authorities. The main pre-requisites to instigate this race for confession are the threat of severe sanctions if a cartel is caught, a high risk of detection of a cartel, and a high degree of transparency and predictability in relation to leniency. The chapter then argues that the early leniency programmes of the United States and the European Union have been revised with these pre-requisites in mind. To illustrate the importance of the theory, this chapter than evaluates the most recent version of the respective leniency programmes. The chapter finishes with some thoughts on the similarities and differences between the two leniency programmes.

National and international lawyers are ubiquitous in transitional political negotiations. However, their role in advancing or stalling negotiations, or in advocating or resisting progressive change, is generally carried out behind closed doors. This chapter explores when and how lawyers living and working within repressive, conflicted, and transitional states influence the content of transitional political agreements. It draws on twenty-five interviews with lawyers who participated directly in negotiations and other informed commentators in our case study sites. Combining this empirical data with literature on lawyers as negotiators, the sociology of the legal profession, and critical international legal theory, the chapter explores the factors that shape relationships between lawyers and the political leadership in negotiations. The chapter further critically analyses the extent to which lawyers’ negotiating styles and legal skills can advance or inhibit the reaching of an agreement. The final section explores the discretion and capacity of lawyer-negotiators for legal imagination in crafting transitional futures. We find that lawyer-negotiations often have to grapple with reconciling their role as legal technicians with the ethical and political challenges of advising on law’s content at times when the law itself is indeterminate or subject to negotiation.

This Chapter focuses on the situation where acts by the rebels or the government are committed in the context of the insurgent’s struggle for the establishment of a new government. When the rebels are successful, the new government remains responsible for the acts committed by the previous government while fighting the rebels. Also, the acts committed by the rebels during the insurgency are attributable to the State after their victory. When the rebels are not successful, the acts committed by them are not attributable to the State once the insurgency has failed. There are two ‘exceptions’ to this principle involving lawful ‘routine activities’ performed by the rebels and expropriation act committed by them which results in some benefits for the State. The rebels are always responsible for their own wrongful acts. A State is always responsible for its own failure to exercise its due diligence obligation to protect third States and foreigners during the insurgency. Responsibility arises as a result of a State’s failure to discharge its due diligence obligation of vigilance, prevention and punishment in relation to the conduct of rebels.

Human rights issues are touched on throughout Stoppard’s work and are at the centre of several plays from the 1970s addressing conditions in Eastern Europe. Stoppard’s concerns for human rights went beyond utilising these events as a backdrop for his plays. These plays were in themselves sometimes used as political weapons in the ambiguous battleground of the Cold War.

Between 1932 and 2018, there have been twelve successful – meaning the coup makers seized power – coups in Thailand. Each time, the coup makers have protected themselves by passing an amnesty, in the new constitution promulgated by the dictator or junta, in a stand-alone law, and sometimes both. Each amnesty article or law has retroactively legalized the coup in question and protected the coup-makers from possible prosecution or other sanction. In each instance, the amnesty has turned rebellion into an administrative action and legalized the extrajudicial seizure of power from the people. Over time, the repeated amnesties have institutionalized the dispossession of democracy and the people’s role in the Thai polity. This chapter traces the legal and political history of the repetition of the use of amnesty as a way to understand one aspect of the foreclosure of accountability and the production of impunity for the military. What legal and social political work does each amnesty perform individually, and how do they function as a history? What language and aspects of amnesty law have remained consistent over different iterations of the amnesties, and what new legal manoeuvres have been introduced? What legal and political challenges to amnesty have been made, and which remain unthinkable? Framed by comparison with legal amnesties for coups in other countries, this chapter reflects on what the history and repetition of coup amnesties means for the possibility of justice in Thailand. The chapter concludes with a reflection on the most recent coup, 22 May 2014 coup by the National Council for Peace and Order, the constitutional amnesty provisions passed, and the possibility of undoing them following a future democratic transition.

This chapter examines the Bangsamoro peace process to end civil conflict on the island of Mindanao in the Philippines. With the Philippines boasting a long history of granting amnesties for human rights violations in the context of separatist and other conflicts, and the United Nations excluded from the negotiations, this appears to be a straightforward case in which an amnesty is used to address an intractable separatist conflict. Yet, as this chapter argues, the post-settlement period reveals that the fight against impunity for human rights violations in the Philippines is far from over. Rather, the Transitional Justice and Reconciliation Commission has taken a strong, but pragmatic anti-impunity stance, argued that impunity for human rights violations is not a means of achieving peace but a cause of conflict in Mindanao, and proposed measures to institutionalise the eradication of amnesties for human rights violations in the Philippines. Directly influenced by United Nations’ policies, it has sought not only to promote accountability and anti-amnesty norms but to refute the most commonly used justification for the use of amnesties in the Philippines and, indeed, region.

This chapter examines the settlement of the separatist conflict fought in Aceh, Indonesia. It demonstrates that after the loss of East Timor, Indonesia toughened its approach to separatist claims and reaffirmed its acceptance of impunity and belief in the relative importance of state survival over human rights. The chapter argues that this and the UN’s absence from the peace process, meant that the inclusion of an unrestricted amnesty in the final peace agreement was unsurprising. However, the chapter also details the evolution of the separatists’ ideas about the relationship between peace and justice and the importance of ending impunity for human rights violations in Aceh. It demonstrates that although the protection of human rights and the pursuit of accountability for past violations was a key pillar of the separatists’ claim, as the conflict and negotiations wore on, the possibility of Acehnese independence faded, and a political future for its key protagonists became probable, they accepted the pragmatic view that amnesties may help end conflict, allow some measure of self-determination and, perhaps ironically, facilitate the protection of human rights.

This chapter examines the case of Timor-Leste, the first peace settlement negotiated after the United Nations launched its anti-amnesty policy. As a UN-led process, initial acceptance of the anti-amnesty position was guaranteed: none of the resolutions that provided for the settlement of East Timor’s independence struggle included amnesties, and soon after independence a hybrid tribunal was established to prosecute perpetrators of human rights violations. However, this anti-impunity/pro-accountability stance quickly eroded in the post-conflict period with persistent calls for amnesties being translated into practical impunity measures. As this chapter demonstrates, both Indonesian and East Timorese leaders have emphasised the importance of state security, stability, and survival in justifying the use of impunity measures. For Indonesian, in particular, acceptance of impunity for human rights violations came in the context of the threat to state disintegration posed by separatist claims in other parts of the country. For both, resistance to the anti-amnesty norm was the result of a norm hierarchy that prioritises the survival of the state over individual human rights claims.

This chapter examines the peace process undertaken by the Government of Nepal and the Community Party of Nepal-Maoist (CPN-M). Nepal’s Comprehensive Peace Agreement (CPA), negotiated in the presence of United Nations officials and signed in 2006, does not include an amnesty provision but a commitment to accountability for human rights violations and an agreement to end impunity for such crimes. Yet, as this chapter demonstrates, agreement to include anti-impunity measures in the CPA was driven, not by a commitment to end impunity for human rights violations, but by a desire to avoid criticism from the international actors present during the negotiations. This lack of intention to comply with the human rights terms of the CPA was evident in the negotiating process and has been born out in the post-conflict period, with several successive governments attempting to legislate in favour of introducing amnesty laws. At the same time, a lack of capacity within those local institutions committed to ending impunity for human rights violations, exacerbated by the withdrawal of UN support for their processes, has hampered efforts to combat these impunity measures.

The place of accountability for human rights violations in peace processes is hotly contested. Accountability measures are routinely conceived as both an essential component of peace and as an obstacle to its achievement. This chapter examines the role of accountability in the pursuit of peace in legal, theoretical, and empirical terms. It argues that in the absence of empirical consensus on the contribution made by accountability measures to the pursuit of peace, assessments of their role are largely normative and depend on precisely how peace and accountability are themselves conceived. That is, it argues that although broadly conceived accountability is an essential component of positive, consolidated peace, its imposition in the form of prosecutions and punishment during peace negotiations may be detrimental to the achievement of minimal, negative peace, marked by the cessation of hostilities.

This chapter examines settlement practice on detention in light of international humanitarian law and human rights law. Section 2 identifies the international legal frameworks that regulate detention, drawing the necessary distinctions between peacetime and armed conflict, and between international and non-international armed conflict, which frame questions on relevant applicable law. Section 3 then examines the specific legal norms relating to prisoners of war and civilian detainees within international armed conflict and their interaction with settlement practice; while Section 4 does the same in relation to legal norms regulating detention in non-international armed conflicts. In the context of peace agreements, the focus is on two interconnected issues which extend into a post bellum phase, as important subject matter for settlement practice: release and repatriation; and transitional justice. By way of conclusion, Section 5 considers whether settlement provisions on detainees reflect a common practice that develops international legal standards.

This chapter traces the practice of concluding peace treaties in Early Modern Europe, characterised by the increasing standardisation of clauses, as well as the influence of the concept of legal (or formal) war alongside that of just war. While just war retained an important role in the justification of war, treaty-making practice tended to rely on legal war, which produced a dualist logic in both war-waging and peace-making. Over time, the settlement of territorial conflicts moved from pre-existing claims and rights to conquest as a basis; dynastic legitimacy was subordinated to the raison d’etat. Increasingly standardised amnesty and restitution clauses, retractions of letters of reprisal, and provisions on prisoners of war likewise bore the influence of the legal war concept. Finally, to deal with the ever wider disruption caused by war, separate FCN treaties emerged alongside peace treaties. Later on, the 1919 Treaty of Versailles marked a brief return to a discriminatory concept of war, but its longer-lasting impact was on collective security and compensation of war damage for citizens.

With the founding of the two German states in 1949, the period of political transition in postwar Germany came to an end. Nazi trials, however, continued in both West and East Germany. The Epilogue examines how policy toward Nazi prosecutions changed with independence in both the Federal Republic and German Democratic Republic. West Germany pursued a policy of rehabilitation for most former Nazis, coupled with the further prosecution of small numbers of ‘intolerable” Nazi atrocities. This was part of a strategy of “democratization via integration.” Meanwhile, East German continued a more robust prosecution program, even if the number of trials was still substantially smaller than during the occupation period. The epilogue also recapitulates the argument of the book. Worse trials in the West helped inadvertently to democratize the emerging Federal Republic of Germany, while better trials in the East contributed to the consolidation of a new, Stalinist dictatorship. Transitional justice in Germany thus produced counter-intuitive results at odds with the prevailing wisdom among scholars and activists.