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

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. MFK-Mendip Job ID: 9616BK--0045-4 5 482 Rev: 07-07-2003 PAGE: 1 TIME: 11:39 SIZE: 61,11 Area: JNLS OP: RB EJIL 14/3 chg305 482 EJIL 14 (2003), 481–505 1 Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9*, as corrected, reprinted in 37 ILM (1998) 999. The 60th instrument of ratification was deposited on 11 April 2002, such that, in accordance with Article 126 of the Statute, the Statute entered into force on 1 July 2002. 2 See Article 17 of the ICC Statute. 3 Villa-Vicencio, ‘Why Perpetrators Should Not Always be Prosecuted: Where the International Criminal Court and Truth Commissions Meet’, 49 Emory Law Journal (2000) 205, at 205. 4 A. Boraine, A Country Unmasked: South Africa’s Truth and Reconciliation Commission (2000). 5 See, e.g., Arsanjani, ‘The International Criminal Court and National Amnesty Laws’, ASIL Proceedings (1999), 65; and Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’, 32 Cornell International Law Journal (1999) 507. UN Secretary-General Kofi Annan has suggested that it would be ‘inconceivable’ for the ICC to set aside an approach like that adopted in the South African situation: Kofi Annan, Speech at the Witwatersrand University Graduation Ceremony (1 September 1998), quoted in Villa-Vicencio, supra note 3, at 222.