National Amnesties and International Justice

Abstract:     
How should the ICC handle cases in which prosecution would threaten to derail peace negotiations? Are there alternative ways of imposing accountability that would allow the ICC to avoid a forced choice between peace without justice and justice without peace? These questions already confront the ICC in its first referral, concerning crimes against humanity committed during an on-going civil war in Uganda, where many victims and their families argue that ICC prosecution will deter the rebels from negotiations, and that their traditional restorative justice mechanisms will better serve the ends of justice and reconciliation.

This article proposes that in some circumstances the ICC would be warranted in deferring to states that choose to invoke certain non-penal approaches to condemning crimes and imposing accountability. The first section argues that the ICC's obligation is broader than, and does not always entail, a simple duty to prosecute and punish. Rather, its essential moral obligation is to assure the recognition and repudiation of criminal atrocities, and to stand in solidarity with their victims. Criminal punishment is commonly invoked as an effective means of achieving this, but sometimes other instruments have been successfully invoked as well. The second section considers one example, the South African Truth and Reconciliation Commission, and suggests that it should also be considered a morally acceptable response to extreme criminality.

Keywords: International Criminal Court, Truth and Reconciliation Commission, National Amnesty, International Justice

Accepted Paper Series