Book Review: J. Sarkin, The Global Impact and Legacy of Truth Commissions, Intersentia, Cambridge-Antwerp-Chicago, 2019
The paper focuses on the evolution of the scholarly debate and the case law concerning amnesty, also in light of the provisions of the German and Austrian legal systems, pointing out the peculiarities and the specific features of each experience and practice of general pardon. Starting from the different domestic legal frameworks and looking at the different measures from a comparative perspective, the paper analyses the nature and the limits of the lawful exercise of the pardon power
In the season of a maximum application of criminal law (Diritto penale massimo), this article seeks to meditate on collective clemency measures, the most neglected part of the 'punitive law' of the Italian Constitution. Faced with the need to contain criminal law, the author claims the "overwhelming urgency" of clemency measures, in particular amnesty. Retracing the justifications that the traditional scholarship associated with amnesty, the author proposes to use amnesty as a tool of criminal policy, also indicating specifically the characteristics that amnesty law should have.
This article addresses the controversy concerning amnesty in international law. Traditionally, amnesty was seen as the substance of peace and there was a presumption of the legitimacy of amnesty under international law. During the past two decades, some scholars and regional human rights courts have reached the opposite conclusion, claiming the existence of a prohibition against amnesty for gross human rights violations. In this view, amnesty would not be a legitimate option in order to allow a pacific post-war or post-dictatorship transition to democracy. The article describes such an evolution and analyses both the motivations of those who support such a prohibition and the consequences on the concept of punitive power, the relationships between individual rights and law in general, and criminal law and democracy.
In this essay, the Author investigates the relationship between the course of time and the different paradigms of punitive law. While he affirms that revenge and amnesty represent two - so to speak - temporally absolute paradigms, in which, respectively, memory and oblivion dominate, he highlights that reconciliation and punishment through the jurisdiction are instead two - so to speak - temporally relative paradigms, since not only memory and oblivion coexist, but also the need for a wise balance arises. While in the paradigm of reconciliation, cohabitation turns out to be more "peaceful" and the balance is easier to reach, in that of punishment through the jurisdiction a real tension is to be found: The very delicate balance is very difficult to obtain, especially in a historical phase like this, in which statute of limitation increasingly leaves space to the manifestation of punitive interest, thus going back to the idea of an "infinite justice", which pertains to the paradigm of revenge.
In recent years some measures have been adopted in order to try to alleviate the impunity of crimes committed during the Spanish Civil War and Francoism (in particular, the so-called "Historical Memory Act" of 2007). Nonetheless, in the field of criminal law, the only existing resolution was the amnesty law of 1977, which left, among others, more than 100,000 cases of forced disappearances without punishment. In recent years, there have been various attempts to initiate criminal proceedings in relation to some of them. This work exposes the numer- ous obstacles that these attempts have faced, addressing issues such as the controversial recourse to the category of crimes against humanity in the legal qualification of the facts, the issue of statute of limitation or the extension of the amnesty, as much in the cases of enforced disappearances as in those of the so-called "stolen babies".