Does Justice Always Require Prosecution? the International Criminal Court and Transitional Justice Measures

Article excerpt

Abstract

Two provisions of the Rome Statute of the International Criminal Court (ICC), which address complementarity and discretion to decline "in the interests of justice," give the ICC Prosecutor the ability to defer to a State wishing to undertake its own transitional justice program. Given the global preference for the imposition of individual criminal lia- bility for serious international crimes-as evidenced by the creation of the ICC-it is highly likely that most such programs will involve prosecution.

This Article examines whether the ICC Prosecutor might defer prosecu- tion when a State that favors other mechanisms of accountability and reconciliation decides not to prosecute the individuals suspected of involvement in conflict atrocities. Before responding to such a proposal, the Prosecutor should evaluate the stability of the country emerging from conflict, the will of the people affected by the proposal, and the gravity of the crimes at issue. This Article offers a framework for a national plan for justice and peace that includes investigative, retributive, and repara- tive elements, and argues that such a plan is likely to pass muster with the ICC Prosecutor. It then contends that the ICC Prosecutor should decline to prosecute in these situations because the States are in the best position to assess and implement their post-conflict goals and can tailor any policy to their needs. An insistence on prosecution by the ICC Prose- cutor would be shortsighted and would fail to consider the complexities of each State's unique climate as it transitions from violence to peace.

I. Introduction

Ethnically infused post-election violence-unfortunately, not an isolated event in Kenyan politics-reared its head most recently in December 2007, when over one thousand people were killed fol- lowing a disputed presidential election.1 The government's response to the violence was a package of proposals that included criminal trials; a Truth, Justice, and Reconciliation Commission; constitutional reforms; and other measures, including economic assistance.2

In neighboring Uganda, a decades-long civil war has pitted the government against the rebel Lord's Resistance Army in a conflict characterized by mass killings, rape, torture, and forced recruit- ment of child soldiers.3 Proposals to end the violence there have included trials, a truth commission, amnesty, and a local reconcilia- tion process, called mato oput.4

The International Criminal Court (ICC) has become involved in both of these situations, indicating that the national efforts at peace and justice are insufficient.5 These packages of accountabil- ity and reconciliation measures contain the twentieth century's two major responses to mass violence and human rights abuses: trials and truth commissions.

The aftermath of World War II saw the birth of modern interna- tional criminal law with the establishment of the Nuremberg and Tokyo Tribunals.6 These tribunals, while imperfect, injected the concepts of trials and individual criminal liability into the narrative of post-conflict reconstruction and accountability.7

In the 1970s, South America, and particularly the Southern Cone, experienced a period characterized by repressive military dictatorships that caused widespread disappearances of dissidents and engaged in other human rights abuses.8 Before their officials left office, several of the governments passed sweeping amnesty laws preventing the people responsible for the violence and disap- pearances from being held accountable.9 Without prosecution as an option, truth commissions emerged as a method of restoring peace and order.10 This mechanism of accountability was particu- larly salient because truth commissions provided information to the victims and the world at large in the wake of regimes where clandestine torture centers were commonplace.11

The establishment of the ICC in 2002 could be seen as a victory of the first response, trials, over the second, truth commissions. …

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