Punishment and Ethics: New Perspectives


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2. Arguments for Moral Responsibility Skepticism

Approximately , persons have been assassinated for political reasons between and In order to be able to fully understand the peace negotiations, and contextualise the Colombian punishment in transition, it is necessary, if only briefly, to outline its extremely complex historical, socio-economic, political and institutional context. Various factors such as the political agenda of the farc of fighting for social justice; their reliance on and furtherance of illegal economies, such as drug trafficking; the corrupt political and justice system in Colombia or involvement of foreign States such as us and other actors, are often considered to have fuelled and prolonged the armed conflict.

The first negotiation with a faction of the farc - ep took place in and there was another failed attempt in From that time on, at least four relevant sets of peace talks have taken place with other guerrilla groups and a paramilitary group 95 leading to a partial cessation of hostilities and to granting of amnesties, pardons and reduced terms of imprisonment see, for instance, Law 77 of and Law of In , the government engaged in peace talks with the farc - ep again and a final agreement was reached in Colombian scholars have asserted that military considerations on both sides played a major role in initiating, continuing and bringing the recent set of peace negotiations to a successful end.

The State military forces were successfully implementing an effective new strategy consisting of attacking high-level guerrilla units and their funding sources. During those years, the farc - ep lost most of its leaders and saw the highest rate of individual demobilisations in its history. In response, the guerrilla group changed its war model to a more strategically defensive one, for instance by targeting the mining and energy sectors and putting more emphasis on their political and ideological aspirations. The farc - ep managed to recuperate militarily to an extent, but it did not continue growing before and during the negotiation process.

By , both the farc - ep and the government realised their inability to achieve a military victory. This, together with other considerations, influenced the decision to go back to the negotiating table. For instance, the farc - ep renewed leadership saw leftist politicians Bolivia, Ecuador, Venezuela , and even former combatants Uruguay and Brazil coming to power in neighbouring countries.

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On the other hand, the government saw the risk of facing a guerrilla group lacking a strong political leadership, without which it would not be possible to achieve any agreement. Moreover, the implementation of the governmental political agenda of modernisation and focus on issues such as rural development, political participation and drug trafficking was, to an extent, dependent on the cooperation of the farc - ep. Furthermore, the ethical issue of avoiding the loss of lives and suffering of members of both the military and of the guerrilla groups must not be underestimated.

In , the parties defined a negotiation agenda. It included six items, namely: i rural reform and agrarian development policy, ii political participation, iii illicit drugs policy, iv end of conflict, including demobilisation and disarmament, v rights of victims, including criminal accountability and punishment, and vi implementation and endorsement. The fifth point was arguably one of the most challenging and politically charged parts of the negotiations.

During the negotiations, two relevant external actors were included to personally present their views and suggestions. Firstly, a group of sixty victims affected by the farc - ep guerrilla, state agents and paramilitary groups, chosen by the United Nations, met face to face with the negotiators. In addition, the negotiation was opened, from beginning to end, to civil society members to submit their views.

According to the Colombian Government, approximately 3, victims participated in these meetings. A first peace agreement was reached in September Subsequently, the peace accord was submitted to popular approval through a plebiscite conducted on 2 October Some commentators claimed that the main reason for the popular rejection was the extraordinarily lenient sanctions envisaged for perpetrators of atrocities. Nevertheless, other items of the accord were equally unpopular. For example, provisions to open the door for the political participation of former members of the farc - ep for the legislative elections of and provide economic support for their reintegration process were controversial.

Irrespective of the reasons for the plebiscite results, the Government reacted swiftly and the talks on the most controversial issues were re-opened. The signing of a new document took place in November This time, however, no popular vote was scheduled. The provisions on punishment were further clarified yet not fundamentally changed.

For instance, conditions for the enforcement of sanctions were agreed upon and additional criteria to evaluate crimes that could be amnestied were included. The Government declared that the new renegotiated agreement would unite the deeply divided country.


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In any case, negotiated criminal punishment, described in the next section, can neither be decontextualised from the difficult conflict history and crimes it is meant to address nor from the equally complex and nuanced national political and societal circumstances driving the transition and the broader societal and political goals it pursues. The Comprehensive system comprises judicial and non-judicial mechanisms, such as Special Jurisdiction for Peace sjp , which is in charge of matters of criminal accountability for conflict-related crimes; a Truth Commission; a Unit for the Search of Disappeared Persons; and schemes for reparation and non-repetition.

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These bodies operate in a coordinated manner through novel institutional and procedural frameworks. The sjp is based upon five general principles. First, amnesties are granted for political crimes as defined under domestic criminal law, including the act of rebellion and the killing of combatants. These acts are therefore exempted from criminal accountability and sanctions. Second, those crimes that cannot legally be amnestied shall be investigated and punished.

These offenses comprise international crimes, namely genocide, crimes against humanity and war crimes.

Third, with respect to these crimes a special set of sanctions with a strong restorative dimension is available for perpetrators who acknowledge their responsibility. Fourth, the sjp prosecutes and sanctions state agents, guerrilla members and third parties that directly or indirectly participated in the commission of international crimes. The system specifically targets those considered to be the most responsible. Fifth, participation in this accountability scheme is conditional.

To receive reduced or restorative sanctions, defendants must comply with obligations related to truth, reparation and non-repetition. The sjp comprises of five new institutions: the Tribunal for Peace, in charge of delivering judgments and meting out punishments; three Chambers of Justice Chamber for Acknowledgement of Truth and Responsibility, Chamber for the Definition of Legal Status and Chamber for Amnesties and Pardons ; and one Investigative Unit.

The whole system is based on a logic of incentives and threats, which in turn, are mediated by conditions. The basic scheme is a combination of pull and push factors, aimed to compel perpetrators to behave in a certain way while at the same time to serve as a deterrent mechanism: If you do x cease violence and disclose and recognise truth , then the State will offer y restorative sanctions, amnesties and pardons unless you do z not telling the truth and not contributing to reparation , in which case the State will take away y and will apply w imprisonment instead.

The whole system was designed to operate in a way that a reasonably rational defendant, after weighing up the costs and benefits, will conclude that he or she has more to gain by cooperating with it rather than by avoiding it. In practice, those alleged to be the most responsible perpetrators of grave human rights violations and international crimes that confess, tell the truth and acknowledge responsibility in a prompt, complete and detailed manner will receive restorative sanctions.

These sanctions have two main characteristics. Second, sanctions are restorative by nature. For instance, in rural areas, they will require participation in or implementation of programs for: i reparation of displaced peasants, ii environmental protection, iii construction and reparation of infrastructure, iv rural development, waste disposal, electrification and improvement of communications, iv substitution of illegal crops, v development of infrastructure necessary for agricultural trade and vi removal and eradication of explosive remnants of war, unexploded weapons and landmines.

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Defendants who belatedly confess the truth and acknowledge their responsibility will be subjected to reduced terms of imprisonment from five to eight years. The level of participation of an offender in a crime may mitigate the severity of the sanction. Accordingly, those considered not to be the most responsible may receive prison terms from two to five years. Furthermore, individuals who do not confess the truth or admit their responsibility, but are nonetheless found guilty, will face imprisonment from fifteen to twenty years, in contrast to the maximum penalty of sixty years they would face in the ordinary system of justice, according to Article 31 of Law of The most controversial aspect of the Colombian punishment in transition turned out to be the substitution of potential lengthy imprisonment for perpetrators of international crimes with restorative sanctions.

Critics rely on traditional justifications of punishment, i. Against this background, punishment, based on non-retributive and non-traditional bases, for the most serious violence and for those considered to be the most responsible is clearly unorthodox. Nevertheless, to claim that the Colombian agreement amounts to full impunity appears to be incorrect. The new sanctioning regime includes restrictions on the rights to liberty and residence and makes participation in social service projects mandatory for convicted perpetrators.

Moreover, the sanctions depend on the ascertainment of criminal liability adjudicated by a special tribunal. In particular, there are three key contextual factors essential for understanding punishment in the Colombian transition. Firstly, as demonstrated in the statistics presented above, the crimes punished by the sjp are acts of mass atrocity violence perpetrated over a time span of 50 years, leaving behind mass destruction and multiplicity of victims.

The violence implicated a multiplicity of individuals and actors in various roles and bearing different degrees of responsibility. In order to address crimes committed on such a wide scale within an ordinary criminal justice system, employing conventional criminal trials and penalties, would clearly be impossible.

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Creative solutions were necessary to ascertain at least a certain level of accountability, for as many perpetrators as possible. By incentivising defendants to come forward and uncover the truth for exchange of restorative or reduced sanctions, the punishment designed for the sjp reflects pragmatic considerations of pursuing justice in a negotiated transition from war to peace.

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Secondly, punishment was designed within a peace negotiation with the largest guerrilla group of the country, which has proven capable of political destabilisation and of large-scale violence with lethal impact. The agreement is the product of bargaining of two opposing armed forces that fought each other for more than half a century without one being able to defeat the other. The negotiating parties stated that they pursued as much justice as possible within the political moment. Therefore, punishment cannot be isolated from all the other issues at the table and was arguably shaped and formed by the gains and losses of each party on the other items of the agenda.

Finally and relatedly, the punishment agreed upon by the Colombian government and the farc - ep seeks to achieve broader societal goals, such as the achievement of a stable and durable peace, the promotion of peaceful coexistence in the country, cessation of hostilities, the prevention of new violence, the reintegration of former combatants and reconciliation. Moreover, since the sjp is part of the new system of administration of transitional justice, the promotion of the rule of law is also one of its key objectives.

All these objectives were arguably considered and factored in by the negotiating parties when designing the sjp and its sanctioning regime. Given the past crimes, and the momentum of peace negotiations and the transitional context steered towards broader political and societal transformation, the Colombian punishment in transition needs to be viewed holistically and evaluated accordingly.

The following section, based on the Colombian experience, proposes a list of contextual factors to be taken into consideration for such a holistic evaluation of punishment in negotiated transitions. The Colombian case reveals how the particular circumstances of peace negotiations can shape and influence the design of penal measures even for the most serious crimes.

It shows that there are factors, beyond the crime and the perpetrator, that shape the design, type and modality of criminal punishment in such transitional contexts.

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This section briefly outlines general, theoretical considerations on possible contextual factors that impact upon how punishment is negotiated and designed in peace agreements. Each peace negotiation involves a conflict. In peace negotiations the resolution of armed confrontation is dependent on a compromise between adversaries, which would not have cooperated otherwise.

According to this conception of responsibility, someone is responsible for an action or attitude just in case it is connected to her capacity for evaluative judgment in a way that opens her up, in principle, to demands for justification from others Scanlon ; Bok ; Pereboom a. According to Derk Pereboom a , a leading moral responsibility skeptic, engaging in such interactions is reasonable in light of the right of those harmed or threatened to protect themselves from immoral behavior and its consequences. In addition, we might have a stake in reconciliation with the wrong doer, and calling her to account in this way can function as a step toward realizing this objective.

We also have an interest in her moral formation, and the address described functions as a stage in the process. On this forward-looking reading, answerability responsibility is grounded, not in basic desert, but in three non-desert invoking desiderata: future protection, future reconciliation, and future moral formation see Pereboom a. Basic desert moral responsibility has also been distinguished from take charge responsibility Waller , , , , Bruce Waller, for instance, has argued:.

Punishment and Ethics: New Perspectives Punishment and Ethics: New Perspectives
Punishment and Ethics: New Perspectives Punishment and Ethics: New Perspectives
Punishment and Ethics: New Perspectives Punishment and Ethics: New Perspectives
Punishment and Ethics: New Perspectives Punishment and Ethics: New Perspectives
Punishment and Ethics: New Perspectives Punishment and Ethics: New Perspectives
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