The costs and benefits of prosecution: a contractualist justification of amnesty

ABSTRACT

After the cessation of conflict the majority of those involved in violations of international law will not be held criminally accountable. Rather, it is frequently the case that the bulk of perpetrators receive amnesty. Often, consequentialist considerations weigh heavily on the decision to grant amnesty. For instance, amnesties may be offered in order to generate aggregate security benefits in volatile post-conflict settings. My contention is that states cannot morally justify amnesties by appealing solely to the aggregate benefits they are expected to deliver. The moral objection concerns the distribution of associated costs, where such costs include the risk of re-offense that amnesty generates. Importantly, these costs may be unevenly imposed onto the society. This means that certain citizens will expect to bear individual losses greater than any gains the amnesty can deliver to them. Those placed at a net-disadvantage can object that amnesties are morally unjustifiable: they impose unreasonable burdens on them in order to secure benefits for others. However, as amnesties are often vital to achieve peace there remain strong pragmatic reasons to favour limited prosecutions. Given these concerns it is necessary to justify the differential imposition of cost associated with amnesties. I argue that ex ante contractualism, as a theory of moral justification, is well-suited to this task. According to this framework amnesties are justified only if no individual could reasonably reject the associated burdens. By developing a non-aggregative justification of amnesty this account offers a novel approach to the design and implementation of post-conflict prosecutorial strategies.

KEYWORDS:

• Amnesty
• ex ante contractualism
• international law
• pluralism
• recidivism

Acknowledgments

I wish to thank Max Pensky, Lisa Tessman, Tony Reeves, and Christopher Morgan-Knapp for helpful comments on earlier drafts of this paper. Additionally, I gained valuable feedback from Cyril Ghosh at the 2019 meeting of New York State Political Science Association and Jason Springs at the 2019 Notre Dame Student Peace Conference. Special thanks is also owed to Maureen Junker-Kenny for sparking my interest in this issue.

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes

1. Amnesty is a de jure measure that must be explicitly granted by the state. While I refer primarily to amnesties my argument naturally extends to instances in which no amnesty is granted and yet there is little, if any, attempt to hold past perpetrators accountable. In either case, failure to adopt more extensive accountability mechanisms may impose costs onto the society that some will disproportionately bear.

2. Describing this threat as one of ‘recidivism’ may seem conceptually problematic given that former perpetrators are not punished. I retain the term recidivism as a shorthand aptly describing the moral issue at hand. Namely, that offenders may return to criminal activity if they are not subject to stringent accountability measures.

3. This intuition is nicely expressed by John Rawls’ argument regarding the ‘separateness of persons’ (Rawls, 1971, pp. 26–29).

4. William Burke-White bucks this trend by arguing that the justification of amnesties cannot appeal solely to the benefits such a strategy will generate for the state (Burke-White, 2001). Claiming that only the ‘will of the people’ can bestow legitimacy on political acts, Burke-White argues that amnesties are legitimate only if they reflect citizens’ preferences. The ability for amnesties to secure a net-benefit for the state is therefore insufficient to render them morally permissible. Yet, by locating normative legitimacy in the democratic expression of popular will the endorsement of amnesties may reflect the aggregate of individual preferences. In this way Burke-White’s account is unable to adequately mitigate the problems associated with aggregative forms of justification.

5. Though my account rejects aggregative justifications it retains the impartiality characteristic of consequentialism that some have found objectionable. Yet, Rahul Kumar highlights the attractiveness of the impartial standpoint for contractualism (Kumar, 2015). Kumar argues that it cannot be required that the status of a principle is determined by referring to the specific claims that particular individuals hold. This would place excessive epistemic demands on any agent seeking to justify principles to others. Hence, it is acceptable to invoke the generic standpoint as a normative term, one that limits justifying reasons to those that individuals would proffer if they occupied a standpoint that would be affected by conduct licensed by a principle. Contractualism remains impartial in the sense that anyone could describe objections from these standpoints. For a contractualist account that rejects the deliberative standpoint of an impartial agent see Darwall (2006).

6. Incommensurability need not preclude rational comparison. Michael Stocker argues that comparability can proceed by appealing to ‘higher level synthesising categories’ such as a ‘good life’ which supply additional evaluative criteria allowing for the rational comparison of incommensurables (Stocker, 1990).

7. Failing to promote a distinct value is not, by itself, morally impermissible. The incapacity to promote certain values amounts to a moral wrong only if it constitutes a failure to fulfil a responsibility owed to others (Gowans, 1994).

8. The models are ‘communal sharing’, ‘authority ranking’, ‘equality matching’ and ‘market pricing.’

9. According to international humanitarian law the concept of reprisal refers to punishments strategically meted out between states (Darcy, 2007). As Boyle (2010) notes, the concept has not been applied to intra-state conflicts. Following Boyle, I use the term to describe strategic violence occurring within states after conflicts have formally ended.

10. Of course this figure could not have been used to motivate an ex ante objection. Though it does support the claim that in a conflict drawn along ethnic lines minorities may expect to face distinctive threats to their safety.

11. Beitz argues that it is a ‘fixed point’ in democratic societies that public procedures are to reflect a citizens’ equal worth (Beitz, 1989, p. 110). If the state’s prosecutorial strategies fail to vindicate citizens’ equal standing then this may constitute a wrong sufficient to reject these procedures on the grounds that they fail to fulfil their central role.

12. It is worth noting the overlap between the contractualist justification of limited selection and the values enshrined in the ‘human security’ approach to international relations. The principles of this paradigm are expressed in the ‘Responsibility to Protect’ (R2P) doctrine which holds that states must prioritize the well-being of all citizens in the design of domestic security strategies (MacFarlane & Khong, 2006; International Commission on Intervention and State Sovereignty [ICISS], 2001, United Nations General Assembly, World Summit Outcome, 2005 para. 138).

Additional information

Notes on contributors

Robert Patrick Whelan

Robert Patrick Whelan is a PhD student at Binghamton University, New York. He holds a B.A. and M. Phil. from Trinity College Dublin. His research interests centre on the moral and legal issues that arise during the design of transitional justice policies. Additionally, he is interested in political psychology, Irish-British relations, and the legitimacy of political violence broadly construed.