The Legal Framework of Transitional Justice
BUILDING A FUTURE ON PEACE AND JUSTICE: STUDIES ON TRANSITIONAL JUSTICE, CONFLICT RESOLUTION AND DEVELOPMENT, pp. 19-103, K. Ambos, J. Large, M. Wierda, eds., Berlin, 2009
85 Pages Posted: 15 Dec 2011
Date Written: 2009
Transitional Justice (hereafter: 'TJ') has been the object of great attention in conflict and post-conflict societies. The concept deals with justice in societies in transition, either post-conflict or during an ongoing conflict; it entails a series of measures which could be judicial and/or non-judicial in nature. Its success depends on to what extent it contributes to true reconciliation and the consolidation of democracy and the domestic judicial system (para. 1). Experience shows that the quest for justice often conflicts with the mostly official efforts towards peace. Indeed, TJ aims at ensuring justice and peace at the same time but refraining from criminal prosecution and/or punishment seems sometimes necessary to facilitate a peaceful transition (para. 3), the issuing of an amnesty being the most important technique of exemption from criminal prosecution (para. 5). In any case, whether the absence of criminal prosecution contributes to reconciliation depends on the framing of this concept and the circumstances of each case (para. 4). 2. To develop the legal framework of TJ and, ultimately, to establish some more or less precise guidelines for peace negotiations within the framework of transition, necessary to 'judicialize' the politics of TJ (para. 6), one must first determine the contents of the justice element in TJ. Justice in this sense is to be understood broadly, going beyond mere criminal justice and including certain key elements such as accountability, fairness in the protection and vindication of rights and the prevention and punishment of wrongs (para. 2). 3. The legal substance of the justice element or interest has as a starting point the duty to prosecute the international core crimes as defined in Art. 6–8 of the ICC Statute (para. 8). While this duty would almost logically lead to a prohibition of amnesties or other exemption measures regarding these crimes (para. 9) the broad concept of justice applicable in TJ calls for a more sophisticated approach. On the one hand, the justice interest is to be complemented by the rights of victims of 20 K. Ambos international core crimes (para. 10-11); these rights go well beyond criminal prosecution and include, besides a right to justice, the rights to truth and reparation in a broad sense (para. 11). On the other hand, as another consequence of a broad concept of justice, alternatives to criminal prosecution must be developed and applied (para. 12 et seq.), in particular (effective) Truth Commissions (para. 13 et seq.). In general, though, alternative measures can only complement, not substitute criminal justice (para. 10). To do so, they must offer a serious alternative way of dealing with the past and as such effectively take into account the interest of victims (para. 12). Ultimately, the admissibility of limitations of the justice interest depends on the result of a complex process of balancing of the conflicting interests which is carried out by a threefold proportionality test (para. 19 et seq.). This test leads, on the third stage of the proportionality stricto sensu, to some important limitations (ratione materiae and personae) and requirements (esp. some form of accountability) to be taken into account to assess the admissibility of exemption measures (para. 21). From the above analysis follows a bifurcated approach as to the admissibility of amnesties (para. 23 et seq.): On the one hand, blanket amnesties are generally inadmissible (strict approach) since their primary goal is to completely conceal past crimes by prohibiting any investigation (para. 24 et seq.); on the other, conditional ('accountable') amnesties are, in principle, admissible (flexible approach) since they do not – unlike blanket amnesties – automatically exempt perpetrators from punishment but make the exemption conditional on certain acts or concessions by the benefiting person(s), e.g., unreserved promise to lay down arms, satisfaction of the victim’s legitimate demands, in particular by a full disclosure of the facts, acknowledgment of responsibility and repentance (para. 30 et seq.). 4. With the ICC a permanent accountability mechanism has been established (para. 34). It is part of the TJ project in that it may interfere in processes of transition and thus come into conflict with the parties on the ground. The Ugandan situation where the ICC has issued arrest warrants against leading members of the LRA is a vivid example of such a possible conflict. Yet, it must not be overlooked that the Prosecutor’s strategy only to prosecute the most responsible perpetrators and the most serious crimes (para. 36) limits the ICC’s 'interventionist' or 'monitoring' role considerably and leaves the bulk of the prosecutions to the domestic judicial systems which therefore still have an important role to play in bringing less important perpetrators and/or crimes to justice (para. 34). In any case, as to the most important cases, the question arises whether and, if so, to what extent national peace deals, including amnesties or other exemptions, may bar the ICC from exercising its jurisdiction. While this issue was not explicitly dealt with in the ICC Statute, the Statute is a flexible instrument which enables the Prosecutor and the Court to take transitional situations on the ground into account (para. 35). This follows from the broad discretion of the Prosecutor during the preliminary investigation (para. 35), the ICC’s judicial autonomy (para. 34, 36) and in particular three provisions of the ICC Statute, namely Art. 17 on complementarity, Art. 16 on the intervention by the Security Council and Art. 53 (1) (c), (2) (c) on the interest of justice. 5. Art. 17 tries to strike an adequate balance between the states’ sovereign exercise of (criminal) jurisdiction and the international community’s interest in preventing impunity for international core crimes by according prevalence to the State Parties if they are willing and able to investigate and prosecute the international core crimes (para. 37). The detailed analysis of the provision (para. 37 et seq.) shows that a national exemption measure (esp. an amnesty) as such does not make a case inadmissible; rather, the admissibility depends on the specific content and conditions of the measure (para. 44). If one applies this conclusion to certain scenarios (para. 44 et seq.) it follows that, as to full exemptions, only a conditional amnesty with a TRC may render a case inadmissible if an effective TRC grants an amnesty on an individual basis under certain strict conditions (para. 46); other full exemptions (blanket self-amnesty, conditional amnesty without a TRC) will not pass the complementarity test (para. 45, 47). In the case of partial exemptions, e.g., a considerable mitigation of punishment in exchange of demobilization and full cooperation, the admissibility in the sense of Art. 17 depends on the extent to which the respective process satisfies the justice interest, e.g., by employing alternative mechanisms of justice, in particular an effective TRC and/or non-punitive sanctions (para. 48). In the case of ex post exemptions, the admissibility depends exclusively on the criterion of 'genuine' willingness to prosecute in the sense of Art. 17 (1) (a), (b) or/and (2) (para. 49). Art. 16 gives the Security Council the faculty to suspend proceedings but leaves ICC’s competence to indirectly review the Council’s decision unaffected (para. 50). The interests of justice clause of Art. 53 (para. 51 et seq.) gives the Prosecutor an additional instrument to exercise his discretion going beyond the rather 'technical' Art. 17 (para. 51). Yet, this discretion does not convert the clause to a mere policy instrument irrespective of the legal criteria provided by it (gravity of the crime, interests of victims, age or infirmity of the alleged offender and the role of the perpetrator in the alleged crime); rather the Prosecutor has to take a legally substantiated decision in each individual case (para. 52). 1 Introduction 1. In recent years the issue of Transitional Justice (hereinafter 'TJ') has received increased attention in conflict and post-conflict societies. TJ, as understood in this study, 'comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation'. While regime change is not at all a new phenomenon the concept of TJ is recent and innovative in that it recognizes the importance of 'justice' in processes of transition; in short, TJ deals with justice in transition. However, TJ is not limited to situations of post-conflict and/or regime change, in particular transition from dictatorship to 1 See.
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