Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court

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Abstract

With the entry into force of the Rome Statute of the International Criminal Court, many issues which were once theoretical will soon have significant practical ramifications. Prominent among these is whether and when the ICC might defer to national reconciliation programmes that involve amnesties. This article discusses the provisions of the Statute that might allow deference and suggests propositions for the ICC. First, given the mandate of the ICC and the imperative of removing expectations of impunity for serious international crimes, prosecution is of the highest importance. Second, in situations of transition from mass violence, involving large numbers of perpetrators, the ICC could nevertheless defer to a national programme whereby only those most responsible are prosecuted and low‐level offenders are dealt with by non‐prosecutorial alternatives (truth commissions). Third, national programmes whereby amnesties may be sought even by those persons most responsible for international crimes are most unlikely to garner deference, but it is at least conceivable that the ICC could conclude that it would not be in the ‘interests of justice’ to interfere with a democratically adopted, good faith alternative programme that creatively advanced accountability objectives. Finally, blanket amnesties could never warrant deference, as they are the antithesis of the ICC; even in situations of extreme political necessity, to accept a blanket amnesty would be for the ICC to succumb to blackmail.

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