Transitional Justice: General Argument Defended in McEvoy and Mallinder

Student’s Name：
Instructor:
Course:
Transitional Justice
Introduction
The world battles massive human rights violations, including genocide, and war crimes, among others. Recently, for example, apart from the displacement, the Russian invasion in Ukraine resulted in civilian deaths. More often, there are perpetrators, and the post-conflict justice system adopts various techniques, including amnesty and retribution, primarily to deter such cases. McEvoy and Mallinder’s “Amnesties in transition: Punishment, restoration, and the governance of mercy” discusses the prevalence of amnesties, especially in post-conflict transitional justice. However, amnesties are often criticized because of the injustice and lack of accountability that violators enjoy at the expense of the victims. Collectively, the primary claim in the article by McEvoy and Mallinder revolves around the reliance on amnesties as a post-conflict transitional justice technique that guarantees restoration, including peacemaking, reconciliation, and recovery, among other goals.
Part 1: General Argument Defended in McEvoy and Mallinder
According to McEvoy and Mallinder, amnesties will prevail in post-conflict transitional justice since the world lacks a universal prosecution duty in international law. In other words, international justice is less likely to challenge amnesties because of the lack of punishment rationale. The authors assert that amnesties should be considered influential post-conflict transitional justice rather than prioritize the argument that it champions impunity. The article defines amnesties “as the process by which states exercise their sovereign right to mercy by extinguishing criminal or civil liability for past crimes (McEvoy and Mallinder 413). The process includes avoiding prosecutions even though crimes were clearly committed. It should be adopted to ensure stability and peace. The authors introduce their article by citing the introduction of amnesty by the US president, Jimmy Carter. In 1977, Carter pardoned the US citizens who had unlawfully evaded drafting during the Vietnam War. He argued that it was important to show mercy, which would, in turn, facilitate the objectives of moving forward and ultimately overcoming the divisive conflict and the wounds it inflicted on the country.
The authors allude that violent conflict has adverse impacts, and the decisions the societies embrace in attempts to move on can be beneficial or detrimental. In the process, the prevalence of retributive justice decreases as the victims are encouraged to disregard punishment in favor of mercy. The goal is to achieve a wider collective objective or a greater good, which McEvoy and Mallinder indicate is primarily the argument behind amnesties (411). They indicate that in some instances, especially in ethnic and political violence, the desire to substitute amnesty as a form of impunity signals a lack of accountability with punishment or retributive justice. The authors discuss the primary themes, including restoration, retribution, and deterrence, that is the primary focus after a violent conflict. They are convinced that to achieve considerable peace; the system should embrace mercy, which is sublime for amnesty. Unlike retribution, which at times can invite vengeance because it thrives on the claim that perpetrators deserve the punishment, amnesties look into concerns such as proportionality, between the crime and the punishment, which at times barely match, hence the need for interventions such as amnesty, including activities such as truth telling and peace negotiations. In transitional justice, amnesty is encouraged over retribution because the latter barely retains its justificatory and explanatory power, especially with regards to case analysis. In other words, amnesties are lawful unlike retribution that lacks a clear framework, especially in international law.
The authors defend their choice by highlighting specific examples in countries such as South Africa with a history of violence and tensions that challenge pragmatism and principle. The desire to punish the offenders as outlined by law exists. However, the process is challenging, especially if there is a need to oversee a peaceful transition at the expense of justice. McEvoy and Mallinder express concern regarding the primary focus of most legal systems, which includes a retributive approach towards human rights abuses (413). This partly explains the establishment of legal bodies such as the International Criminal Court. However, the primary focus in transitional justice includes programs that target smooth and successful reintegration, victim reparations, and establishment of truth commissions, commemorations, and amnesties, which is the main focus of this article. The authors are convinced that amnesties, including the establishment of truth commissions as was the case in regions such as South Africa, helped overcome the atrocities. In other words, they reveal that amnesties are encouraged because of their truth-telling feature, which can establish transitional justice. In this case, some crimes raised the question of proportionality, which impeded the ability to adopt punishment that suits or matches them.
Transitional justice dates back to the 1980s and 90s when the international order prioritized how societies could overcome conflict or past violence. According to McEvoy and Mallinder, amnesties are rampant in internal cases rather than international conflicts (414). Additionally, the reliance on amnesties can be flawed because of the exploitation by the oppressors, including military dictators and corrupt leaders implicated in serious human rights v...