The adoption of the Statute of the International Criminal Court (1) at the Rome Conference was a landmark event in international law. It expressed states' intention to cede what was guardedly reserved as a sovereign power to prosecute in exchange for international justice and the prevention of impunity. To restrain the International Criminal Court (ICC), states adopted complementary jurisdiction; the ICC can only act where a state has not genuinely investigated or prosecuted perpetrators of serious crimes, or where it is unwilling or unable to do so. (2) The difficult question was how far should complementarity go?
It was not surprising, given divergent state practice and opinion, that a provision on amnesties was not agreed upon. (3) Some states argued that transitional justice mechanisms ought to be accommodated. (4) Domestic responses to mass atrocity or international crimes in previous years had involved a combination of complementary processes selected from what is becoming commonly referred to as the 'toolkit' of transitional justice. (5) These multi-faceted approaches combined limited prosecutions with truth commissions and blanket or conditional amnesties. Other states were nevertheless steadfast in their opposition. Consequently, the drafters of the ICC Statute left the provisions regulating jurisdiction "'creatively ambiguous.'" (6)
This paper asks whether the ICC can, and ought to, defer to domestic grants of amnesty. In doing so, this paper also questions more broadly whether the ICC ought to take the impact of prosecution on peace into account. Before this article goes on to outline the ways in which the ICC might do this, it is important to understand: (1) the position of amnesties in international law, and (2) the forms of amnesty that are granted and the justifications which aim to legitimize them.
In regard to the first issue, as a matter of international law, an express customary prohibition of amnesty has not yet crystallized. There is support for customary and treaty (7) based duties to prosecute pursuant to the Geneva Conventions (GCs), and jus cogens norms including torture, genocide. Various judicial and UN bodies confirm that amnesties are inconsistent with treaty based duties to prosecute. (8) Exceptions can nevertheless be made. The most notable of these is Article 6(5) of Additional Protocol II to the GCs, which states that authorities "shall endeav[o]r to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict." (9) The South African Constitutional Court in Azapo v. President of the Republic of South Africa (10) relied upon Article 6(5) to support an exception to the prohibition on amnesty. (11) The explicit or constructive duty to prosecute is nevertheless limited by subject matter and recipient, with the obvious gaps being crimes against humanity and war crimes, which do not give rise to grave breaches of the GCs. Customary international law established through state practice and opinio juris may fill these gaps. (12) There is an emerging state practice supporting an obligation to prosecute the most serious violations of international law, (13) with supportive opinio juris. (14) Nevertheless, courts have been reluctant to find amnesties "unlawful per se." (15) While much of the debate concerns the permissibility of conditional amnesties, (16) it is nonetheless difficult to avoid the conclusion that while customary law had not crystallized before the Rome Conference, international law is heading towards the prohibition of amnesties for international crimes. (17)
Looking to the second issue, amnesties can come in a variety of forms including blanket amnesties, self-amnesties, and conditional amnesties. However, only conditional have attracted any real support. It is therefore only in the context of conditional amnesties that we ought to consider whether customary international law permits grants of amnesty. Conditional amnesties are ordinarily granted following a determination by a quasi-judicial body, such as a truth commission, applying legislative criteria. (18) Criteria might include: whether a perpetrator acted in pursuit of a political objective and whether he or she disclosed the truth regarding their role and the role of others in the commission of a crime. (19) Truth commissions gain legitimacy when they provide victims with an opportunity to participate by confronting perpetrators, with some form of reparation, and when they have authority to make broad findings and recommendations regarding the causes of and events giving rise to violations. It is not amnesty itself that is justifiable, but the process by which it is granted. Advocates of truth commissions also argue that, not only do they have a broader mandate than domestic prosecution, they have a greater capacity to reconcile communities and engender peace. (20) The quintessential example is that of South Africa, where conditional amnesty was bartered for democratic rule, and where the South Africa Truth and Reconciliation Commission (SATRC) was hailed as a key contributor to a relatively peaceful transition to stable democracy. (21) Its supporters argue that without the availability of amnesty, South Africa might have lapsed into civil war. (22) States have subsequently used this model to argue that amnesty can be a vital ingredient of peace negotiations because they "stabilize and consolidate ... transition." (23)
Amnesty is therefore a policy and rule of law issue. As a policy matter, it is justified by its contribution to resolving conflict, attaining peace, and preventing further human rights violations. As a rule of law matter, it is justified on the basis that it is granted by a quasi-judicial body pursuant to legislation, even though brought about by an executive act. The disentangling of law and politics however is not so easy in the contexts in which amnesties are granted:
The construction of the transitional rule of law as independent of politics shares certain affinities with the understanding of the rule of law applicable in ordinary times. Yet, controversies over transitional justice in highly politicized contexts present hard cases for adherence to the rule of law. Despite radical political change, the aim is the rule of law not primarily motivated by politics. Transitional jurisprudence reveals a shining vision of the rule of law as antipolitics. (24) Policy and rule of law considerations are relevant for the ICC, particularly given it is not limited to post bellum justice and separating law from politics is more difficult during conflict. (25) How then does and should the ICC respond? Does the process by which conditional amnesties are granted satisfy due process under international law and the ICC's admissibility requirements? Are conditional amnesties a matter of both law and politics beyond the national realm? Or, if amnesty is a matter of mere politics, what is the impact on prosecutorial discretion to act?
The Rome Statute sets out the roles for the Prosecutor, the Security Council, and the Pre-Trial Chamber in determining whether the ICC can exercise jurisdiction over a matter. (26) The Prosecutor plays a lead role because he has discretion to determine whether to proceed with an investigation or prosecution. (27) The Prosecutor has two avenues to defer to conditional amnesty. First, he can determine that amnesties satisfy the admissibility requirements of Article 17. (28) Second, pursuant to Article 53, he can determine that it is not in the interests of justice to proceed with an investigation or prosecution where an amnesty has been or might be granted. (29)
ICC Prosecutor Luis Moreno-Ocampo has been patently clear about his approach to admissibility and the interests of justice. In regard to admissibility, he stated in a report to the Security Council that alternative justice mechanisms "are not criminal proceedings as such for the purpose of assessing the admissibility of cases before the [ICC], but they are an important part of the fabric of reconciliation for Darfur, as recognized in resolution 1593 (2005)." (30) Even where amnesty is granted by quasi-judicial bodies such as the SATRC, Prosecutor Moreno-Ocampo would not find that they are determinative of admissibility under Article 17 of the Rome Statute. While he seemed to leave open the question of whether amnesties might be in the interests of justice because of their reconciliatory capacity, he foreclosed this possibility in September 2007 when he released a policy paper on the interests of justice. (31) In that paper, he notes that justice and peace are not mutually exclusive, (32) and in dealing with the intersection of justice, peace, and security, he will work with other institutions such as the Security Council. (33) He further stated that while Security Council intervention would not presuppose the Prosecutor's position on the interests of justice, he will adopt "a presumption in [favor] of investigation or prosecution" and use his discretion only in exceptional circumstances. (34) In case of any doubt regarding his position on amnesties, the paper footnotes a quote from the Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, who said "[j]ustice should never be sacrificed by granting amnesty in ending conflicts." (35)
Should the Prosecutor exercise unfettered discretion to determine admissibility and the interests of justice, we might then end the discussion here. However, Prosecutor Luis Moreno-Ocampo's paper is a policy document and not binding for the purposes of judicial review, (36) and could be amended by the next appointees While the object of preventing serious crimes through ending impunity is likely to continue to play a decisive role, it is possible that time and progressive development of the law may lead the Prosecutor to favor peace and security in...