Alternative Forms of Justice

7/28/2019 Alternative Forms of Justice

1/26

Articles

Complementarity, Amnestiesand Alternative Forms of

Justice: Some InterpretativeGuidelines for theInternational Criminal

CourtCarsten Stahn*

Abstract

The question to what extent amnesties and pardons may bar criminal investigationsor prosecutions under the Statute of the International Criminal Court (the Statute)has been left unresolved by the Rome process. This essay seeks to develop somegeneral guidelines that may help the Court to address this problem, should itarise in a specific case. It suggests four basic principles to deal with the issue ofamnesties and pardons: (i) the Court has interpretative autonomy to decide whetheran amnesty or a pardon is permissible under the Statute; (ii) exemptions fromcriminal responsibility for the core crimes within the jurisdiction of the Court byamnesties or pardons should generally be considered incompatible with the Statute;

(iii) prosecution by states and by the Court may be limited to the most serious crimesand the most responsible perpetrators (targeted prosecution); (iv) amnesties orpardons should, if it all, only be permitted in exceptional cases, namely where theyare conditional and accompanied by alternative forms of justice.

* LL.M. (NYU), LL.M. (Cologne-Paris 1); Associate Legal Adviser, International Criminal Court.

The views expressed in this article are those of the author alone and do not necessarily reflect

the views of the ICC.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Journal of International Criminal Justice 3 (2005),695^720 doi:10.1093/jicj/mqi046 Oxford University Press, 2005, All rights reserved. For permissions please emai l journals.permiss [email protected]


2/26

1. Introduction

There are quite a number of academic contributions on the subject of

amnesties and the Statute of the International Criminal Court (ICC Statute).1

The purpose of this essay is to offer some thoughts on how the terms of thelegal debate could be translated into practical guidelines for the work of the

ICC.2 After having briefly identified the different situations in which

the Chambers of the Court may be called to deal with the problem

of amnesties and pardons, I will formulate some interpretative options for

the possible treatment of amnesties3 and pardons4 under the Statute, based

on international legal practice.

2. Situations in which the Chambers of theCourt Are Required to Rule on the

Issue of Amnesties and Pardons

There are three principal situations under the ICC Statute, in which the

Chambers of the Court may have to deal with the issues of amnesties

and pardons: in the case of a decision of the Prosecutor not to initiate an

investigation or prosecution under Article 53(3); in the context of a ruling on

admissibility under Articles 18 and 19; and in the case of a deferral of the

investigation or prosecution under Article 16 upon request by the Security

Council.

1 See generally D. Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions

and the International Criminal Court, 14 European Journal of International Law (2003) 481 ff.;M.P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court,

32 Cornell International Law Journal (1999) 507 ff.; M. Arsanjani, The International CriminalCourt and National Amnesty Laws, ASIL Proceedings (1999) 65 ff.; J. Gavron, Amnesties in t heLight of Developments in International Law and the Establishment of the International Criminal

Court, 51 International and Comparative Law Quarterly (2002) 91 ff.; A. Seibert-Fohr, TheRelevance of the Rome Statute of the International Criminal Court for Amnesties and Truth

Commissions, 7 Max Planck Yearbook of United Nations Law (2003) 553 ff.; M. El Zeidy,The Principle of Complementarity: A New Machinery to Implement International Criminal

Law, 23 Michigan Journal of International Law (2002) 869 ff., at 940^951. See also generallyB. Chigara, Amnesty in International Law: the Legality under International Law of NationalAmnesty Laws (Harlow: Longman, 2002).

2 See also more generally ICC, Office the Prosecutor, Informal Expert Paper: The Principle

of Complementarity in Practice (2003), available online at http://www.icc-cpi.int (homepage)

(visited 10 February 2005).

3 Blacks Law Dictionary defines amnesty as the act of a sovereign power officially forgivingcertain classes of persons who are subject to trial but have not yet been convicted. See BlacksLaw Dictionary, 7th edn (St Paul, MN: West Group, 1999), 83.

4 A pardon is usually an action that mitigates or sets aside punishment for a crime after a

conviction. Blacks Law Dictionary defines it as an act or an instance of officially nullifyingpunishment or other legal consequences of a crime (ibid., at 1137).

696 JICJ3 (2005), 695^720


3/26

A. Pre-Trial Chamber Review of a Decision of the Prosecutor Not To Initiate

an Investigation or Prosecution (Article 53(3) ICCSt.)

Article 53(3) of the Statute grants the Pre-Trial Chamber (PTC) the right

to review the decision of the Prosecutor not to initiate an investigation orprosecution. The issue of the permissibility of amnesties and pardons may,

in this situation, come up under two different headings: as an issue of

admissibility under Article 17, and as a question of the protection of the

interests of justice in the light of Article 53(1)(c) and (2)(c).

1. Decision Not To Act because of Inadmissibility

(Article 17 ICCSt.) Limited PTC Review

The Prosecutor may decide not to proceed with an investigation or a

prosecution in the case of the inadmissibility of a case under Article 17. One

likely scenario is the issuance of amnesties or pardons by the state where the

alleged crimes were committed, or by the state of nationality of the alleged

perpetrators. Article 17(1)(a) and (b) requires an investigation, but it does not

expressly state that it must be a criminal investigation. The Prosecutor

might therefore find that a conditional amnesty with a combined truth and

reconciliation procedure satisfies the requirement of an investigation by a state

under Article 17(1)(a), which would exclude the possibility of concomitant ICCproceedings. The PTC may, in this situation, review the admissibility standards

applied by the Prosecutor in its assessment of the permissibility of alternative

forms of justice. But the powers of the PTC are limited in a double sense.

The PTC may exercise its review only after a request by the State making a

referral under Article 14 or upon a request by the Security Council.5 Moreover,

a deviant decision by the PTC is not directly binding on the Prosecutor, but is

a request to the Prosecutor to reconsider that decision.

2. Decision Not To Investigate or Prosecute to Serve the

Interests of Justice Full PTC Review

The concept of the interests of justice provides broader room for the

assessment of amnesties and alternative forms of justice by a Chamber.

Article 53(1)(c) requires the Prosecutor to consider whether taking into

account the gravity of the crime and the interests of victims, there are

nonetheless substantial reasons to believe that an investigation would not

serve the interests of justice. Similar criteria (gravity of the crime, interestsof victims, age or infirmity of the alleged perpetrator) shall guide the

Prosecutor in his or her decision on whether it is in the interests of justice

5 See Art. 53(3)(a).

Complementarity, Amnesties and Alternative Forms of Justice 697


4/26

to proceed to prosecution after the investigation. The express distinction of

the Statute between specific criteria and the general notion of the interests

of justice (based on all the circumstances, including . . .) in Article 53(2)(c)suggests that the term interests of justice may embody a broader concept,

which is not only confined to considerations of criminal justice. TheProsecutor might invoke the concept of interests to justify departures from

classical prosecution based on both amnesties and alternative methods of

providing justice.6 The Statute subjects such a determination, however, to

substantial checks and balances. The PTC may review the decision of the

Prosecutor not to proceed on grounds of the interests of justice on its own

initiative, and it may even oblige the Prosecutor to pursue the investigation

or prosecution (Article 53(3)(b)).7

B. Articles 18 and 19 ICCSt.

The question of the permissibility of the use of alternative mechanisms of

justice may also be raised in the context of an admissibility dispute under

Articles 18 and 19. States may try to seek a deferral of the investigation to

national institutions under Article 18(2), arguing that certain truth and

reconciliation efforts constitute investigations with respect to criminal acts

which may constitute crimes referred to in Article 5. The PTC may, in this

situation, be required to rule on such a deferral if the Prosecutor seeks anauthorization of the investigation.8 A similar claim can be made under

Article 19, which grants the accused and the states listed in Article 19(2)

the opportunity to challenge the admissibility of a case before a Chamber.

It could be argued that alternative mechanisms of justice constitute a genuine

investigation within the meaning of Article 17(a) and (b), if they are employed

to meet the goal of accountability. The decision on whether the mechanism

in question meets the threshold of Article 17 PTC must, in this case, be decided

by the PTC or the Trial Chamber, and it is subject to appeal.9

C. Article 16 ICCSt.

Finally, the Security Council may use its Chapter VII powers to temporarily

bar investigations or prosecutions under Article 16 of the Statute, in order

to facilitate the negotiation of an amnesty-for-peace deal or a process of

national reconciliation. In some cases, such action may induce the Court

6 See also Robinson, supra note 1, at 488.7 See Art. 53(3)(b) and Rule 110(2) (When the Pre-Trial Chamber does not confirm the decision

by the Prosecutor . . ., he or she shall proceed with the investigation or prosecution).

8 See Art. 18(2).

9 See Art. 19(6).

698 JICJ3 (2005), 695^720


5/26

to interpret or review the request made by the Council. It is, in particular,

questionable whether Article 16 may serve as an instrument to ensure

permanent respect for an amnesty law.10 A request under Article 16 is a

temporary device, designed to delay proceedings for a period of 12 months

(with possibility of renewal).11 An amnesty law, on the contrary, is usuallydesigned to exempt a group or a class of persons permanently from criminal

responsibility. The Court might, in this situation, find that a deferral to a

national amnesty law endures only as long as the Council renews its request

for deferral. Furthermore, an amnesty stipulated in a peace deal promoted

by the Security Council may run contrary to international law. The Court

faces in this case a difficult choice as to whether it simply defers to the

request by the Council, or whether it should review the request in the light

of criteria such as the limits of Security Council action under Article 24(2) of

the Charter and/or standards of international law.12

3. Guidelines for the Treatment of Amnesties

and Pardons by the Court

Four different guidelines may be used to deal with the issue of amnesties,

pardons and alternative mechanisms in the context of the interpretation of

Articles 16, 17^19 and 53.

13

I will examine each guideline in turn.

10 See also Gavron, supra note 1, at 109.11 The exemption of US peacekeepers from the jurisdiction of the ICC by SC Res. 1422 and 1487

was at the borderline in this regard. But even this policy has now found a preliminary end due.

On 23 June 2004, the United States withdrew its request at the UN Security Council to renew

Res. 1487. Resolution 1487 expired on 30 June 2004. See, however, x6 of SC Res. 1593 (2005),

31 March 2005.

12 It should be emphasized that such a deferral would stand in contradiction to the general

principles of the UN in relation to amnesties concerning genocide, crimes against humanity

and war crimes. In 1999, the Secretary-General appended a disclaimer to the blanket amnesty

clause (absolute and free pardon) contained in the Lome Peace Agreement, stating that theamnesty shall not apply to the i nternational crimes of genocide, crimes against humanity, war

crimes and other serious violations of international humanitarian law. See Report of theSecretary-General on the Establishment of a Special Court for Sierra Leone, UN doc. S/2000/915,4 October 2000, x23. In his report on the establishment of the Special Court for Sierra Leone,

the Secretary-General added that amnesty is considered to be an accepted legal concept and

a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict,

but cannot be granted in respect of international crimes, such as genocide, crimes against

humanity or other serious violations of international humanitarian law. See Report of

4 October 2000, x22. A similar principle was later applied by the United Nations in East

Timor, where the UN Transitional Administration excluded immunity from prosecution for

serious crimes. See Sections 23.3 and 27.6 of UNTAET Regulation No. 10/2001 of 13 July 2001.

Earlier this year, the UN Secretary-General went even a step further, by recommending

a general non-recognition policy by the United Nations. See Report of the Secretary-General,

The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, UN doc. S/2004/616,3 August 2004, x64.

13 See also the suggestions made by Robinson, supra note 1, at 483^484.



6/26

A. Guideline No. 1: The Court Has Judicial Autonomy to Decide whether an

Amnesty, a Pardon or Other Alternative Forms of Justice Are Permissible

under the Statute

Articles 17 and 19 of the Statute empower the Court to determine thejurisdiction and the admissibility of a case. The principle that the Court is

the final arbiter over the interpretation of jurisdiction and admissibility under

the Statute is reflected in Article 19(1), which states that the Court shall satisfy

itself that it has jurisdiction in any case brought before it, before addingthat the Court may on its own motion, determine the admissibility of acase (emphasis added). This finding implies that the Court may use its ownautonomous criteria and standards to assess whether an amnesty or other

alternative forms of justice are compatible with the Statute, taking into

account the particular context of the Statute, international treaty law andgeneral principles of law derived from national legal systems (Article 21).

The Court may therefore declare national amnesties or pardons or resort to

truth and reconciliation mechanisms irrelevant for decision-making by the

ICC.14 In addition, the Court might argue that States Parties to the Statute

agreed to be held by stricter standards than non-States Parties by acceding to

the accountability system of the ICC system.

The scope of judicial autonomy is less clear in the case of a Security Council

request under Article 16 of the Statute. A request under Article 16 is made

in the form of a binding Chapter VII resolution. The determination whethera matter comes within the scope of application of Article 39, justifying

resort to the powers provided for in Chapter VII, comes, in principle,

within the political discretion of the Security Council.15 Yet, building on

the precedent of the jurisprudence of the International Criminal Tribunal for

the Former Yugoslavia (ICTY) Appeals Chamber in the Tadic case,16 the Courtcould exercise judicial review over a request under Article 16, its jurisdiction,

arguing that it has the incidental power to determine the scope of its own

14 See also the parallel reasoning by the Special Court for Sierra Leone, Prosecutor v. MorrisKallon, Brima Bazzy Kamara, Case No. SCSL-2004^15-PT and Case No. SCSL-2004^16-PT,Decision on Challenge to Jurisdiction: Lome Accord Amnesty, 13 March 2004, at x 82. For a

discussion, see A. Cassese, The Special Court and International Law: The Decision Concerning

the Lome Agreement Amnesty, 2 Journal of International Criminal Justice (JICJ) (2004) 1130 ff.15 See also J. Frowein and N. Krisch, On Article 39, in B. Simma (ed.), The Charter of the

United Nations (Oxford^New York: OUP, 2002), at 719, x4.16 The ICTY Appeals Chamber found in Tadic that the Tribunal was empowered to review

the resolution establishing the ICTY (SC Res. 827). See Decision on t he Defence Motion

for Interlocutory Appeal on Jurisdiction, Tadic (IT-94^1-AR71), Appeals Chamber,2 October 1995, x28.

700 JICJ3 (2005), 695^720


7/26

jurisdiction (Kompetenz-Kompetenz).17 The Court could even go so far as toargue that is not formally bound to comply with a request to defer to an

investigation or prosecution on the basis of an amnesty-for-peace deal or a

truth and reconciliation process,18 due to the independent legal personality of

the Court.19

B. Guideline No. 2: Exemptions from Criminal Responsibility for the

Crimes within the Jurisdiction of the Court by Amnesties or

Pardons Are Generally Incompatible with the Statute

Although international law does not prohibit amnesties per se, there isgrowing support for the position that amnesties for the core crimes of the

Court are generally incompatible with international law.20 This principlewas incorporated in several recent soft law documents. Principle 7 of thePrinceton Principles on Universal Jurisdiction provides:

Amnesties are generally inconsistent with the obligation of states to provide accountability

for serious crimes under international law, including war crimes, crimes against humanity

and genocide.21

The same approach is reflected in x 2 of UN Commission on Human Rights

Resolution 2002/79, whichrecognizes that amnesties should not be granted to

those who commit violations of international humanitarian and human rightslaw that constitute serious crimes.22 Further guidance in this direction may be

17 Concurring W.A. Schabas, An Introduction to the International Criminal Court (Cambridge:Cambridge University Press, 2004), 84; M. El Zeidy, The United States Dropped the Atomic

Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution

1422, 35 Vanderbilt Journal of Transnational Law (2002) 1503 ff., at 1515^1516. For a discussionof Res.1422 and 1497, see S. Zappala' , Are Some Peacekeepers Better Than Others? UN Security

Council Resolution 1497 (2003) and the ICC, 1 JICJ (2003), at 671^678; C. Stahn, TheAmbiguities of Security Council Resolution 1422 (2002), 14 European Journal of InternationalLaw (2003) 85 ff.

18 Concurring Scharf, supra note 1, at 524; K. van der Voort and M. Zwanenburg, Amnesty andthe Implementation of the ICC, in R. Haveman, O. Kavran and J. Nicholls (eds), SupranationalCriminal Law: A System Sui Generis (Antwerpen: Intersentia, 2003), 324.

19 See Art. 4(1) of the Rome Statute. Note that the duty to comply with Chapter VII decisions

of the Security Council under Arts 48(2) and 103 of the UN Charter is formally addressed only

to Members of the United Nations.

20 See most recently, D. Orentlicher, Amicus Curiae Brief Concerning the Amnesty Provided bythe Lome Accord in the case of the Prosecutor v. Morris Kallon, SCSL-2003^07 (To the extentthat the amnesty encompasses crimes against humanity, serious war crimes, torture and

other gross violations of human rights, its legal validity is highly doubtful and in any event

contravened the United Nationss commitment to combating impunity for atrocious crimes).

See also M.T. Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in

Respect of Gross Human Rights Offenses, 23 Human Rights Quarterly (2001) 940 ff., at 956.21 See Princeton Principles on Universal Jurisdiction (2001), available online at http://

www1.umn.edu/humanrts/instree/princeton.html (visited 10 February 2005).

22 See Commission on Human Rights, Res. 2002/79 on Impunity, x2.



8/26

derived from x 6 of the Preamble of the Rome Statute, which recalls that it

is the duty of every State to exercise its criminal jurisdiction over thoseresponsible for international crimes.23 In addition, more concrete international

obligations to punish some categories of international crimes falling under the

jurisdiction of the Court may be inferred from international treaty law24 and,perhaps, by state practice.25 It is, in particular, widely recognized that states

23 See x 6 of the Preamble of the Rome Statute.

24 The Genocide Convention provides an absolute obligation to prosecute persons responsible

for genocide, whether they are constitutionally responsible rulers, public officials or private

individuals (see Art. 4). Article 7 of the Torture Convention provides a duty to prosecute. The

treaty body created by the Convention, the Committee against Torture, emphasized that even

before the entry into force of the Convention against Torture, there was a general rule of

international obliging all states to take effective measures to prevent torture and to

punish acts of torture. See also, more recently, the Report of the Committee against Torture,UN doc. A/55/44 (2000), x61(d) ([a]mnesty laws should exclude torture from their reach).

Human rights treaties do not contain explicit duties to prosecute international crimes. But

some of the rights enshrined in human rights conventions have been interpreted so as to

require states to take affirmative action to prevent, investigate and punish serious human

violations. Both the case law under the American Convention on Human Rights and t he

International Covenant on Civil and Political Rights strengthen the argument that blanket

amnesties are incompatible with treaty-based human rights law. See Inter-American Court of

Human Rights, Velasquez v. Honduras, Judgment of 29 July 1988, Ser. C, No. 4 (1988), x174;Barrios Altos case, Judgment of 14 March 2001, Series C, No. 75, xx41^44 and 53. See alsoHuman Rights Committee, General Comment No. 20 (Article 7) of April 1992, UN doc. CCPR/C21/Rev.1/Add.3, x15; Concluding Observations of the Human Rights Committee: Chile, 65th

Sess. CCPR/C/79/Add.104, 30 March 1999, p. 7.

25 State practice reflects a growing trend towards the prohibition or non-recognition of amnesties

for international crimes. There is an increasing ban of amnesties under domestic law.

Article 23 of the Constitution of Ecuador provides that amnesty may not be granted for

genocide, torture, forced disappearance, hostage-taking and politically motivated murder. In

November 2001, the Argentinean Federal Court of Appeals declared the Due Obedience (ley deobdedienca debida) and Full Stop Laws (ley de punto final) unconstitutional and void, whichobstructed the investigation of serious crimes in Argentina. See Federal Court of Appeals of

the City of Buenos Aires, Case No. 17.889 (Simon Julio), Judgment of 9 November 2001.Similarly, the Supreme Court of Justice of Honduras found that granting amnesty to military

personnel charged with human rights violations is unconstitutional. See Honduran Supreme

Court, Amparo en Revision, Case 58^96 of 18 January 1996 and petition for declaration of

unconstitutionality, No. 20^99, decision of 27 June 2000. The same approach was taken in

Macedonia. The amnesty granted to Albanian fighters excluded war crimes, crimes against

humanity, torture and other serious violations of international humanitarian law. Secondly,

there is growing support for the claim that third states are not bound to respect amnesties or

pardons concerning the core crimes of the Statute. Several countries have enacted legislation

allowing them to try war crimes perpetrators under the principle of universality (e.g. Canada,

Germany, New Zealand, South Africa, Australia). See generally J.K. Kleffner, The Impact of

Complementarity on National Implementation of Substantive Criminal Law, 1 JICJ (2003) 86, at

107. Furthermore, some courts have held that amnesties clauses have no extraterritorial effect.

For example, Spanish Courts have ruled that Argentinas amnesty is not binding on Spain.

See, e.g. Fortunata Galtieri Case, Judgment of March 1997. See also the distinctionmade by A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003),315 (There is not yet any general obligation for States to refrain from enacting amnesty

702 JICJ3 (2005), 695^720


9/26

are under a duty to prosecute genocide26 and grave breaches of the Geneva

Conventions of 1949.27

It is therefore warranted to suggest four interpretative guidelines for the

evaluation of amnesties and pardons under the Statute.

1. The Court Should Generally Not Accept Amnesties in Cases where States

Have an Obligation to Prosecute a Particular Category of Crimes

Falling under the ICC Jurisdiction ( for instance Genocide,

or Grave Breaches of the Geneva Conventions)

The Court should refrain from recognizing amnesties and pardons concerning

crimes for which there is a treaty-based or a customary duty to prosecute. The

fact alone that states have an obligation to prosecute does not necessarilymean that the Court has formally the same obligation.28 But three arguments

may be used in this regard: the object and purpose of the Rome Statute, the

principle of complementarity, and the obligation to act in accordance with

customary law and human rights law.

The first argument is a systemic argument. The purpose of the ICC system is

to provide a forum for prosecutions. A strategy of the Court not to prosecute in

a situation where states have an obligation to do so would run counter to the

telos of the Statute, which is to put an end to impunity for the perpetrators

of [the most serious] crimes and thus to contribute to the prevention of suchcrimes.29 Secondly, the fact that a state acts in violation of its obligation to

prosecute under international law may be interpreted as an indication of its

genuine unwillingness to carry out the investigation or prosecution under

Article 17(1)(a) of the Statute, triggering the admissibility of the case before

laws for these crimes. Consequently, if a State passes any such law, it does not breach a

customary rule. Nonetheless, if the courts of another State having in custody persons

accused of international crimes decide to prosecute them although in their national State

they would benefit from an amnesty law, such courts would not thereby act contrary to

general international law, in particular to the principle of respect for the sovereignty of other

States). See also Special Court for Sierra Leone, Prosecutor v. Morris Kallon, Brima BazzyKamara, Decision of 13 March 2004, x82, supra note 14.

26 The ICJ found that the principles underlying the Genocide Convention are recognized by

civilized nations as binding on States, even without any conventional obligation. See ICJ,

Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion,28 May 1951, ICJ Rep.1951, 15, at 34. A case can therefore be made that customary law requires

all territorial states even those who are not parties to the Genocide Convention to punish

persons who commit genocide. See also the Restatement (Third) of the Foreign Relations

Law of the United States, which provides that [a] state violates customary law if it practices

or encourages genocide, fails to make genocide a crime or to punish persons guilty of it,

or otherwise condones genocide.

27 See Art. 50 of Geneva I, Art. 51 of Geneva II, Art. 130 of Geneva III and Art. 147 of Geneva IV.

See also Cassese, supra note 25, at 314.28 See also Seibert-Fohr, supra note 1, at 573.29 See x 5 of the Preamble of the Rome Statute.



10/26

the Court. Finally, the Court may be required to prosecute crimes for which

there is a duty to prosecute, in order to give effect to its own obligation to

respect international customary law and human rights standards under

Article 21(1) and (3). This is, in particular, the case with respect to blanket

amnesties. In fact, the duty of the Court to apply and interpret the Statute inconformity with internationally recognized human rights under Article 21(3)

may be interpreted so as to preclude this kind of amnesty, in the light of the

human rights case law under the American Convention of Human Rights and

the International Covenant on Civil and Political Rights.30

The Court could, however, consider whether resort to alternative forms of

justice, such as the examination of a particular case by a truth and reconcilia-

tion commission, might eventually serve as a mitigating factor. The ad hoc

Tribunals have developed a vast jurisprudence on factors which might be

relevant to mitigation of sentence.31 The public expression of remorse has, forexample, been recognized as a mitigating factor.32 Thus, a display of remorse

during a truth and reconciliation process might very well be taken into

account in the determination of the sentence.33 Furthermore, the fact that a

perpetrator voluntarily ended its criminal conduct and surrendered its arms in

the light of an amnesty^peace deal may constitute a mitigating

circumstance.34 Likewise, when considering the sentence, the Court should

give some weight to an undue delay in the proceedings, caused by the

negotiation of an amnesty^peace deal.

30 See Inter-American Court of Human Rights, Barrios Altos case, Judgment of 14 March 2001,x 53, supra note 24 ([s]tates parties to the Convention who adopt . . . self-amnesty laws, arein breach of Articles 8 and 25 of the Convention. Self-amnesty laws leave victims defenceless

and perpetuate impunity and are therefore clearly incompatible with the letter and spirit of

the American Convention); See also the comments of the Human Rights Committee on the

Report submitted by Peru of 25 July 1996, UN doc. CCPR/79/Add.67, x9 (The Committee is

deeply concerned that the amnesty granted by Decree Law 26.379 on 14 June 1995 absolved

from criminal responsibility and, as a consequence from all forms of accountability, all mili-

tary, police and civilian agents of the State who are accused, investigated, charged, processed

or convicted for common and military crimes for acts occasioned by the war against terror-

ism from May 1980 until June 1995). The ICTY concluded that the jus cogens nature of theprohibition of torture precludes international recognition of amnesties with respect to torture,

and consequently allowed prosecution by the ICTY. See Judgment, Furundzija (IT-95^17/1-T),Trial Chamber II, 10 December 1998, x155.

31 See W.A. Schabas, Penalties, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute

of the International Criminal Court, Vol. 2 (Oxford: Oxford University Press, 2002) 1497,at 1521^1528.

32 See ICTR, Sentence, Prosecutor v. Serushago (ICTR-98^39-S),Trial Chamber,5 February1999, x38.33 Note that Rule 145(2)(a) recognizes the convicted persons conduct after the actas a mitigating

circumstance.

34 Note that the list of mitigating factors enumerated in Rule 145(2) is not exhaustive (such as).

704 JICJ3 (2005), 695^720


11/26

2. The Court Is Entitled to Refuse to Recognize Amnesties or Pardons,

Even in Cases where States Have No Obligation to Prosecute

under Treaty Law or Customary Law

It is also plausible to argue that the Court may refuse to give effect toamnesties, even in situations where there is no clear-cut obligation of states

to prosecute. International criminal institutions have traditionally applied

strict standards with respect to the recognition of amnesties. Neither the UN

ad hoc Tribunals nor the Special Court for Sierra Leone recognized exemptions

from criminal responsibility for the core crimes of the Rome Statute.35

This argument applies with equal force to the ICC. The Court system may be

viewed as a treaty arrangement, by which states decided to cede part of

their criminal jurisdiction over the core crimes of the Statute to the Court by

way of ratification, thereby empowering the latter to investigate or prosecuteall serious crimes within the realm of complementarity, regardless of whether

the investigation or prosecution corresponds in the particular situation to the

interests of the state concerned or the government in power. This idea is

inherent in the concept of automatic jurisdiction embodied in Article 12(1)36

and in the general structure of the Statute.37 The decision to join the ICC

system marks a special commitment to accountability. By ratifying the

Statute, a state acknowledges that two types of crimes within the jurisdiction

of the Court shall be investigated or prosecuted: crimes committed by its

nationals and crimes committed on its territory. The state of the nationality ofthe accused accepts that crimes committed by its citizens may be subject to

investigation or prosecution by the Court, irrespective of where they have been

35 The Appeals Chamber of the Special Court for Sierra Leone adopted this principle expressly in

its decision in the case of Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decision of13 March 2004, supra note 14. The Chamber noted that [e]ven if the opinion is held thatSierra Leone may not have breached customary law in granting an amnesty, this court is

entitled in the exercise of its discretionary power, to attribute little or no weight to the grant

of such amnesty which is contrary to the direction in which customary international law is

developing and which is contrary to the obligations in certain treaties and conventions the

purpose of which is to protect humanity. See x 84 of the Decision.

36 See, on this concept, H.P. Kaul, Preconditions to the Exercise of Jurisdiction, in Cassese, Gaetaand Jones (eds), supra note 31, Vol. I, 583 ff., at 595.

37 See x 4 of the Preamble of the Statute: . . . affirming that the most serious crimes of concern

to the international community as a whole must not go unpunished and that their effective

prosecution must be ensured by taking measures at the national level and by enhancing

international cooperation. See also Art. 17(1)^(3) of the Statute and the proprio motu powersof the Prosecutor under Art. 15. This commitment cannot be simply revoked by a State for

reasons of political opportunity. This is reflected in Art. 127(2) which states that even a with-

drawal of the Statute shall not affect any cooperation with the Court in connection

with criminal investigations and prosecutions in relation to which the withdrawing State

had a duty to cooperate and which were commenced prior to the date on which the with-

drawal became effective, nor shall it prejudice in any way the continued consideration of any

matter which was already under consideration by the Court prior to the day on which the

withdrawal became effective.



12/26

committed.38 Moreover, victims of crimes situated in the territory of a State

Party may be said acquire a right to investigation or prosecution by the

accession of the territorial state into the ICC system, which becomes part of

an acquis of the people a concept known from the practice of succession

into human rights treaties39 and the law of the European Union.40

3. The Recognition of an Amnesty or a Pardon Clause Should Generally

Remain Limited to Specific Categories of Crimes

If an amnesty or a pardon is recognized, this recognition should, in principle,

be limited to specific categories of crimes for which it is not clearly established

that states are internationally obliged to prosecute. A further differentiation

may be made in relation to forced disappearances (Article 7(2)(i)). Enforceddisappearance is widely recognized as a continuing crime, which endures

as long as the perpetrators continue to conceal the fate and whereabouts

of persons who have disappeared and the facts remain unclarified.41 The

continuing nature of the crime may be invoked as an argument to disregard

amnesties granted for a specific period of time in the past.42 The same

line of interpretation may be taken with regard to other specific crimes of

a continuing nature.

4. In Recognizing Amnesties and Pardons, Further Attention Should Be Devoted

to the Author of the Amnesty or Pardon and/or the Category of State Giving

Effect to It

A last distinction may be made in relation to the author of the amnesty

or pardon, or the state giving effect to it. Two guidelines appear to be relevant

in this regard. First, exemptions of individual responsibility granted by the

territorial state or the state of the nationality of the accused should be

reviewed more critically than recognition of amnesties or pardons by states

which do not have a direct nexus to the crime. International practice indicates

38 See Art. 12(2)(b). Note that even non-States Parties may make a declaration of acceptance of

jurisdiction under Art. 12(3).

39 For a similar concept in the context of the automatic succession into human rights treaties, see

Human Rights Committee, General Comment No. 26, UN doc. A/53/40, Annex, x4.40 See Art. C of the Treaty on the European Union.

41 See Art. 17 of the UN Declaration on the Protection of all Persons from Enforced

Disappearance.

42 Art. 18 of the UN Declaration on the Protection of all Persons from Enforced Disappearance

goes even a step further. It states: Persons who have or are alleged to have committed [acts of

enforced disappearance] shall not benefit from any special amnesty law or similar measures

that might have the effect of exempting them from any criminal proceedings or sanction.

706 JICJ3 (2005), 695^720


13/26

that international law is generally hostile towards self-granted amnesties

or pardons.43

Furthermore, it may be argued that the territorial state and the state of

nationality of the accused are subject to stricter obligations to prosecute than

other states. This claim is, in particular, frequently made in the context ofcrimes against humanity.44 Secondly, it seems reasonable to argue that States

Parties to the Statute are held by higher standards than non-States Parties to

the Statute, due to the fact that they joined the ICC system.

C. Guideline No. 3: Prosecution By States and By the Court May Be

Limited to the Most Serious Crimes and the Most Responsible

Perpetrators (Targeted Prosecution)

If prosecution is undertaken in disregard of the issuance of an amnesty law or

a pardon or of the fact that the alleged perpetrator has been brought before

a truth and reconciliation commission, it is possible to draw a distinction

between the most serious crimes, the persons most responsible and lesser

offenders.

A compelling case may be made that under customary law, the duty of states

to bring perpetrators to justice extends only to the persons most responsible,

particularly in situations of transition.45 This limitation of the duty of states to

the prosecution of planners, leaders and persons who committed the mostserious crimes should be taken into account in the assessment of admissibility.

The fact that a state is complying with its obligations under international law

is a factor weighing in favour of deference.

Furthermore, the principle of targeted prosecution may be directly linked

to the wording of the Statute. Article 17 makes it clear that the gravity of

the conduct must be taken into account in the proceedings before the

Court. Article 17(1)(d) specifies that the case must be of sufficient gravity to

justify . . . action by the Court. This clarification allows the Court to make

a distinction between the most serious and less important perpetrators.

43 See also Cassese, supra note 25, at 316.44 Some authorities argue that there is a customary duty of the territorial state and the state of

nationality of the accused to prosecute crimes against humanity. See C. Kress, War Crimes

Committed in Non-International Armed Conflict and the Emerging System of International

Criminal Justice, 30 Israel Yearbook on Human Rights (2001) 103 ff., at 163; Robinson, supranote 1, at 491. See also more generally J. Dugard, Dealing with Crimes of a Past Regime:

Is Amnesty still an Option?, 12 Leiden Journal of International Law(1999) 1004.45 Customary law appears to indicate that governments may discharge their obligations

under international by prosecuting those who were most responsible for designing and

implementing a system of human rights atrocities or for especially notorious crimes that

were emblematic of past violations . . . provided the criteria used to select potential defendants

did not appear to condone or tolerate past abuses. See D. Orentlicher, Settling Accounts:

The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale Law Journal(1991) 2537 ff., at 2599.



14/26

Articles 17(1)46 and 53(1)(c) suggest that the gravity of the crime must beconsidered a guiding factor in both the admissibility test and the assessment

of the Prosecutor to initiate an investigation. These references leave room for

a differentiation of more serious and less serious crimes.

The principle of the limitation of the duty to prosecute receives evenfurther support from the practice in international criminal institutions. The

jurisdiction of the ad hoc Tribunals is limited to the prosecution of the most

serious crimes47 a principle reaffirmed by the preamble and Article 1 of the

Statute. The term most serious crimesdoes not necessarily limit prosecution to

the most responsible persons. But international practice has moved into this

direction.48 The ICTY has ultimately accepted the principle that prosecution

should focus on leaders.49 The focus on leadership figures was later expressly

emphasized in Article 1 of the Statute of the Special Court for Sierra Leone,

which limits the competence of the Court to persons who bear the greatestresponsibility for serious violations. Following this practice, the ICC may base

its assessment of the acceptability of amnesties and pardons on the premise

that only the inciters and leaders, i.e. those most responsible for the conflict,

must be held responsible and punished, while people not being primarily

responsible for the conflict may be exempted from criminal responsibility, be

it de facto or de jure. The border must be defined on a case-by-case basis, takinginto account, inter alia, the specific crimes committed in the conflict and the

resources and capabilities of the state concerned to conduct comprehensive

investigations and prosecution.

D. Guideline No. 4: Amnesties or Pardons Should, If At All, only Be

Permitted in Exceptional Cases, namely where They Are Conditional

and Accompanied by Alternative Forms of Justice

The drafting of the Statute itself left creative ambiguity as to what extent the

Court may defer to amnesties and pardons.50 An interpretation of the Statute

46 Article 17(1) contains a reference to Art. 1 of the Statute, which limits the jurisdiction of the

Court to the most serious crimes of international concern.

47 See Arts 1 and 7(1) ICTYSt. and Art. 1 ICTRSt.

48 See also J.R.W.D. Jones and S. Powles, International Criminal Practice (Oxford^New York: OUPand Transnational Publ., 2003), at 134^135; Robinson, supra note 1, at 494.

49 See SC Res. 1329 of 30 November 2000, in which the Council takes note of the position

expressed by the International Tribunals that civilian, military and paramilitary leaders

should be tried before them in preference to minor actors.

50 The travaux preparatoires of Part 2 of the Statute show that States Parties were reluctant torecognize amnesties and pardons. Both forms of exemption of responsibility were considered

by the PrepCom in the context of the principle of ne bis in idem, but rejected. Neither Art. 20(ne bis in idem) nor Part 9 (surrender) makes provision for an amnesty exception. Thisdeliberate silence of the Statute may be interpreted as an indication that the drafters of the

Statute intended not to recognize amnesties and pardons at all. See J. Dugard, Possible

Conflicts of Jurisdiction with Truth Commissions, in Cassese, Gaeta and Jones (eds), supranote 31, Vol. I, 693 ff., at 701.

708 JICJ3 (2005), 695^720


15/26

suggests that amnesties and pardons should, if at all, only be permitted by

the Court under exceptional circumstances. The Statute appears to be

based on the general principle than amnesties and pardons are rarely a bar

to admissibility (Article 17), but may exceptionally weigh as a factor for

non-prosecution before the Court in two situations, where specialcircumstances so require: Article 16 (Security Council request) and Article 53

(interests of justice).

1. Article 17

It is difficult to justify inaction by the Court under the heading of admissibility.

Two elements limit the possibility to declare a case inadmissible under

Article 17. One may argue that there is an initial presumption in favour theadmissibility of a case under Article 17; secondly, in cases in which the admis-

sibility is in doubt, Article 17 establishes a high threshold for inadmissibility,

which makes inadmissibility dependent on strict conditions.

Blanket and unconditional amnesties will hardly ever lead to the

inadmissibility of proceedings before the Court. This follows from the wording

and structure of Article 17. Article 17 must be interpreted narrowly, since

it is drafted in negative fashion. It regulates exceptions to the principle of

admissibility (the Court shall determine that a case is inadmissible where)51

and exceptions to the exception (unwillingness and inability to investigate orprosecute).52 This structure implies that a case is generally admissible before

the Court, unless the conditions of a ground of inadmissibility are fulfilled.53

An amnesty law which impedes prosecution or which does not provide for

an investigation54 cannot be invoked as a bar to ICC proceedings, because it

does not even meet the basic requirements for inadmissibility under Article

17(1)(a) or (b).55 The basic principle underlying Article 17 is that amnesties

51 See the chapeau of Art. 17.

52 See Art. 17(1)(a) and (b), and Art. 17(2).

53 The same conclusion may be derived from the wording of Art. 19, whose first sentence states

that the Court must determine its jurisdiction in any case, even on its own motion. ( . . . shallsatisfy itself that it has jurisdiction in any case brought before it). The determination of

admissibility, on the contrary, is generally subject to a challenge of admissibility under

Art. 19(2). The Court is entitled, but not expressly mandated to make findings on admissibility

on its own motion. See Art. 19, second sentence (The Court may, on its motion, determinethe admissibility of a case in accordance with Article 17 (emphasis added)).

54 This approach is fully in line with case law of the Inter-American Commission on Human

Rights, which stated that governmental recognition of responsibility and even investigations

carried out by truth commissions are not a substitute for a States obligation under

the American Convention on Human Rights to investigate, prosecute and sanction those

responsible for serious violations of Human Rights. See Inter-American Commission on

Human Rights, Garay Hermosilla et al., Case No. 10.843, 1996 Annual Report IACHR (1997),x 57; Ellacuria case, Report No. 136/99, xx119^230.

55 For a similar result on the basis of a slightly different reasoning, see El Zeidy, supra note 1, at 942.



16/26

must, at least, be accompanied by some forums of inquiry into the crimes,

in order to be able to bar proceedings by the Court. The only escape clause

for a perpetrator is the de minimiis clause in Article 17(1)(d), which allowsdeference by the Court where the case is not of sufficient gravity to justify

further action by the Court.The hard cases are those in which some form of investigation or prosecution

is undertaken by the state. Article 17 could provide room for inadmissibility of

cases, where the crimes are investigated by a domestic or internationalized

truth commission (the case is being investigated . . . by a State)56 or where

criminal proceedings are held but sanctioned by symbolic or minimal

punishment (the case has been investigated by a State . . . and the State has

decided not to prosecute the person concerned), such as in the case of pardons

or quasi-pardons.57

The issue of whether Article 17 is flexible enough to allow deference toalternative forms of justice or pardons in these situations is a question

of legal interpretation. Article 17(1)(a) appears to allow some flexibility for

deference in the case of parallel and ongoing investigations in a domestic

forum. But Article 17(1)(b) sets strict standards for the recognition of

non-judicial or unsanctioned forms of justice after the completion of a

procedure. It requires, first, that the matter must have been investigated by

a State, secondly, that the state concerned has adopted a decision not to

prosecute, and, thirdly, that this decision does not result from the

unwillingness or inability of the State genuinely to prosecute. This tripartitetest suggests that any exemption from criminal responsibility must, at least,

be accompanied by alternative forms of justice and be open to individualized

sanction, including the possibility of criminal punishment.

(a) Investigation

The first point of controversy is the interpretation of the notion of

investigation. This term excludes deference to alternative forms of justice

which do not encompass an individualized inquiry into the facts of thecrime, such as historically and fact-finding-oriented truth commissions.58

But it leaves room for different interpretations concerning the impact of

quasi-judicial proceedings on admissibility under Article 17.

56 See Art. 17(1)(a).

57 See Art. 17(1)(b).

58 This problem has recently arisen in the context of a Colombian peace proposal, which was

designed to encourage demobilization of paramilitary groups in return for reduced sentences.

The proposal was criticized by Human Rights Watch, which noted: There are no provisions in

the bill to ensure impartial investigations or serious prosecutions. There are no incentives that

would compel the accused to tell the truth about crimes, particularly if government official

or military officers still on active duty are implicated. There are also no mechanisms proposed

that would allow victims of atrocities to appeal the Presidents decision to designate who would

qualify for release from any sentence. See Human Rights Watch, Colombias CheckbookImpunity: A Briefing Paper, 22 September 2003, at 2.

710 JICJ3 (2005), 695^720


17/26

Taking a narrow line of interpretation, the Court could interpret the

notion of investigation as referring only to typical criminal investigations.

This solution would effectively reduce the possibility of the recognition of

truth and reconciliation procedures to cases where the Chamber controls the

exercise of prosecutorial discretion (interests of justice) under Article 53(3)(b),or to the special case of Article 16. This strict interpretation receives

some support from Article 17(2)(b), which provides that the standard for

determining whether an investigation is not genuine is whether the

proceedings are inconsistent with an intent to bring the person concerned

to justice.59 But it contrasts with the wording of Article 17(1)(a) and (b),

which distinguishes investigations from prosecution, without requiring

the former to be classically criminal in nature. An interpretation which

limits inadmissibility to criminal proceedings is problematic because it adds

a distinction, which the Statute does not make.It is more convincing to argue that Article 17(1)(a) and (b) allows not only

typical criminal investigations, but also applies to other forms of investiga-

tion.60 The term investigation under Article 17(1) could be interpreted so as

to include procedures which are designed to establish the evidence and facts

surrounding the commission of crimes and the role and conduct of the

accused.61 This flexibility is, in particular, appropriate in the context of

Article 17(1)(a), which is designed to give the acting state a first chance to

start investigations or prosecutions (is being investigated or prosecuted).62

Such an approach would leave room for individualized truth and reconciliationformulas following the example of South Africa63 and East Timor,64 where

exemption from criminal responsibility was made conditional upon persona-

lized testimony relating to the facts and the conduct of the alleged perpetrator.

At the same time, neither Article 17(1)(a) nor (b) can be read completely

isolated from Article 17(2)(b) and (c), which provides an additional restraint

by making deference dependent on the intent to bring the person concerned to

justice. The tension between Article 17(1) and (2) may be addressed by an

alternative interpretation, which allows deference in the case of investigations

only where these investigations may potentially lead to criminal prosecution.This requirement would be satisfied in cases where alternative forums of

59 See also Scharf, supra note 1, at 188.60 Concurring Seibert-Fohr, supra note 1, at 569; H. Olasolo, The Triggering Procedure of

the International Criminal Court: Procedural Treatment of the Principle of Complementarity

and the Role of the Office of the Prosecutor, 5 International Criminal Law Review (2004)121 ff., at 139.

61 See also Robinson, supra note 1, at 500.62 Article 17(1)(b) comes in at a later stage. It addresses the question of under which

circumstances a decision not to prosecute after investigation may be validated by the Court.

63 See generally J. Dugard, Reconciliation and Practice: The South African Experience,

8 Transnational Law and Contemporary Problems (1998) 277 ff.64 See C. Stahn, Accomodating Individual Criminal Responsibility and National

Reconciliation: The UN Truth Commission for East Timor, 95 American Journal ofInternational Law(2001) 952 ff.



18/26

justice have the power to recommend judicial prosecution after completion of

the procedure, such as truth and reconciliation mechanisms with authority to

deny amnesties after a full and effective investigation into the facts.65

(b) Decision to prosecute

This last approach receives additional support from the wording of Article

17(1)(b). The second substantial requirement to be met under Article 17(1)(b)

is the existence of a decision of a state not to prosecute. This condition

appears to imply that prosecution must, at least, be one of several options of

alternative or quasi-judicial forums of justice, in order to withstand scrutiny by

the Court.66 The term decision suggests, in particular, that the granting of

amnesties or pardons must be conditional upon the completion of a specific

procedure and the observance of certain criteria determining whether aperson is exempted from criminal responsibility.

(c) No unwillingness or inability to genuinely prosecute

Finally, the Court must determine whether the decision not to prosecute

resulted from the unwillingness or inability of the state genuinely to

prosecute. Article 17(2) provides some guidance in this regard. It establishes

that deviations from prosecution in the form of alternative mechanisms

of justice must be justified by necessity. One would need to examine, inparticular, whether an alternative procedure to prosecution reflects an attempt

to shield perpetrators from justice (Article 17(2)(a)), or whether it can be

said to be part of a system aimed at providing justice (Article 17(2)(b) and (c)).

This assessment to what extent deviations from the model of prosecution

are justified can be made on the basis of a number of substantive criteria.67

65 This has been the case in East Timor and South Africa, where proceedings before the

truth commission could lead to prosecution. In South Africa, only 10 per cent of the 7,000

persons who applied for amnesties in South Africa were relieved from criminal sanction.

A considerable number of applications for amnesties failed, either because applicants

did not make full disclosures or because their acts did not qualify as political crimes. The

TRC stressed in its Final Report that these cases should be prosecuted. It noted: Where an

amnesty has not been sought or has been denied, prosecution should be considered where

evidence exists that an individual has committed a gross human rights violation. In this

regard, the Commission will make available to the appropriate authorities information in

its possession concerning serious allegations against individuals . . .. In order to avoid a

culture of impunity and to entrench the rule of law, the granting of a general amnesty

should be resisted. See Truth and Reconciliation Commission of South Africa Report (1998),Vol. 2, 309. Section 27.6 of UNTAET Regulation No. 10/2001 of 13 July 2001 obliged the

East Timorese Community Reconciliation Panels to refer credible evidence concerning the

commission of serious offences directly to the Office of the Public Prosecutor.

66 See also Robinson, supra note 1, at 500.67 For a wider list of criteria, see Office of the Prosecutor, Informal Expert Paper: The Principle

of Complementarity, supra note 2, at 23; Robinson, supra note 1, at 501^502.

712 JICJ3 (2005), 695^720


19/26

Several factors must be taken into account, including principles of due process,

the nature of the proceedings before the alternative forum of justice and its

consequences for the alleged perpetrator.

(i) Due process

The chapeau of Article 17(2) clarifies that the criterion of unwillingness

shall be assessed with regard to the principles of due process recognized

by international law. This reference suggests that even alternative forms

of justice must guarantee basic fair trial rights to the accused in the

procedure, especially if the respective body investigates serious crimes in an

individualized procedure which identifies perpetrators and which may entail

exemptions from criminal responsibility. Several safeguards must be taken

into account.Quasi-judicial procedures should, first of all, guarantee rights of due

process, including the right of perpetrators to be informed about the content

of allegations made against them, an opportunity to defend themselves,

a possibility of legal representation and the right to call and question

witnesses.68 It is questionable whether procedures such as the gacaca trials inRwanda, where the defendant has no lawyer and no possibility to challenge

the possible categorization of a crime by way of an appeal,69 meet these

requirements.

Secondly, even quasi-judicial proceedings should be conducted by impartialand independent organs, in order to withstand scrutiny by the ICC.

This requirement follows from Article 17(2)(c), which makes it clear that

the unwillingness of a state must be determined in the light of whether

the proceedings were not or are not being conducted independently or

impartially. Quasi-judicial mechanisms should therefore be sufficiently

independent of the state and sufficiently impartial in their decision-making

process, in order to be recognized as forums of justice barring proceedings

before the Court. This requirement may be met by some, but not all, forms of

traditional justice.70

68 See also J.S. Abrams and P. Hayner, Documenting, Acknowledging and Publicizing the

Truth, in M.C. Bassiouni (ed.), Post-Conflict Justice (Ardsley, NY: Transnational, 2002) 283, at288. The mandate of the Commission for Reception, Truth and Reconciliation in East Timor

is exemplary in this regard. It recognizes protection against self-incrimination, a right to legal

representation and procedures for the protection of victims and witnesses.

69 See generally J. Strain and E. Keyes, Accountability in the Aftermath of Rwandas Genocide,

in E. Stromseth (ed.), Accountability For Atrocities: National and International Responses(Ardsley, NY: Transnational, 2003) 87 ff., at 119.

70 It is again questionable whether the gacaca trials would satisfy this requirement. Theindependence of the proceedings is compromised by the fact that the locally appointed

lay judges act as the same as prosecutors in the proceedings.



20/26

(ii) No shielding from criminal responsibility

Article 17(2)(a) sets an additional threshold. It provides that a case may be

admissible before the Court where domestic proceedings or the decision not

to prosecute were made for the purpose of shielding the person from criminalresponsibility. This clause is visibly designed to establish ICC scrutiny over

judicial proceedings which contain an element of devious intent or judicial

charade by the state (sham proceedings).71 The key idea behind the Statutes

ban of shielding is that perpetrators shall not grant themselves protection

from criminal responsibility which contravenes the Statute. But the wording

of the provision poses many problems of legal interpretation.

It is clear that Article 17(2)(a) seeks to ban practices where an amnesty

deal exempts certain groups of perpetrators or members of governmental

forces from prosecution, such as in the case of Peru, where the amnesty law

barred investigation and prosecution of members of the Peruvian military.72

Such a practice shows a manifest intent on behalf of the state to bar criminal

responsibility. A similar finding may be made in relation to self-protective

pardons accorded after completion of a judicial or quasi-judicial procedure.

A country might adopt a (quasi-) amnesty for peace deal, under which

punishment and sanction following trial are reduced to a nominal minimum

or suspended, so as to exclude actual imprisonment.73 Such an arrangement

would not necessarily screen the perpetrators from proceedings before

the Court. It may amount to a decision . . . made for the purpose of

shielding, where the circumstances surrounding the legislation indicate

that the absence or degree of sanction effectively protects the interests of

a specific holder of public power.74

71 See L. Arbour and M. Bergsmo, Conspicuous Absence of Jurisdictional Overreach, in

H. von Hebel (ed.), Reflections on the International Criminal Court: Essays in Honour of AdriaanBos (The Hague and Dordrecht: TMC Asser Press and Kluwer Law International, 1999) 129,at 131; S.A. Williams, On Article 17, in O. Triffterer (ed.), Commentary on the Rome Statute(Baden-Baden: Nomos, 1999), at 393.

72 The Inter-American Court of Human Rights condemned this approach in the Barrios Altoscase, after which the Peruvian Supreme Court ordered a re-opening of the investigation, supranote 24.

73 See the amnesty scheme initially proposed by President Uribe in Colombia, under which

members of armed groups would receive suspended sentences, with no or minimal terms of

imprisonment, provided that they would actively participate in the peace process, promise

not to commit further crimes and contribute to the reparation of victims. Alternative

sentences included a bar from public functions, geographical restrictions and acts of

contrition, such as the payment of fines or the return of land. For a critique, see M. Popkin,

Latin America: The Court and the Culture of Impunity, December 2003, available online

at http://www.crimesofwar.org/icc_magaz ine/icc-popkin.html (visited 10 February 2005).

74 The principle of ne bis in idem would not bar ICC proceedings in this case. The fact thata pardon is pronounced shortly after conviction may indicate that the proceedings as such

were not genuine and guided by a lack of bona fide on behalf of a state, as required by

Article 20(3). See also J.T. Holmes, The Principle of Complementarity, in R.S. Lee (ed.),

The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer LawInternational, 1999) 41 ff., at 77.

714 JICJ3 (2005), 695^720


21/26

The assessment is more difficult in situations in which multiple sides and

actors were involved in the conflict and where the proposed exemption from

criminal responsibility does not expressly privilege one or the other side of the

conflict specifically. The evaluation of such scenarios depends essentially on

the interpretation of the terms for the purpose of shielding. Origin-neutralexemptions or alleviations of individual criminal responsibility typically fall

below the threshold of unwillingness, if one adopts a subjective interpretation

of shielding in the sense of (direct) intent.75 It may be argued that truth

commissions and other alternative forms of justice for all sides of the conflict

fall below the threshold of Article 17(2)(a),76 because they are guided by the

(objective) aim to promote reconciliation, rather than by the (subjective) intent

to twist and bend the rules of criminal trials for the purpose of impunity.77

There may, however, be less flexibility towards the acceptance alternative

forms of justice, if the notion for the purpose of shielding is interpreted inthe light of both the aim and the effect of the institutional choice, including

its side effects. In this case, it may be discussed whether certain origin-neutral

mechanisms, such as truth and reconciliation mechanisms with full amnesty

powers or far-reaching pardons, may in fact be subject to review under Article

17(2)(a), particularly where they relieve the most responsible perpetrators or

a specific group of key suspects from all forms of criminal responsibility.78

(iii) Intent to bring a person to justice

Article 17(2)(c) is more closely geared towards the evaluation of the

admissibility of alternative forms of justice than Article 17(2)(a). It sets

objective limits for the acceptability of all types of proceedings, irrespective

of whether the state acted in good or in bad faith when adopting its

institutional choice.79 Article 17(2)(c) states, in particular, that the proceedings

75 See, in favour of a strict intent requirement, Arbour and Bergsmo, Conspicuous Absence of

Jurisdictional Overreach, supra note 71, at 131 (. . . the Prosecutor must prove a devious intenton the part of a State, contrary to its apparent actions).

76 Alternatively, it might be argued that Art. 17(2)(a) applies only to criminal proceedings in the

classical sense, but not to truth commissions and alternative forms of justice. This argument

might be made in the light of the strict reference to criminal responsibility for crimes. Such

a narrow understanding of the scope of application of the provision contrasts, however,

with the use of the notion of proceedings at the beginning of the sentence, which appears

to incorporate a broader range of proceedings than pure criminal trials. The term

proceedings must be read in contrast to the narrow notion of trials (a trial by the Court)

used in Art. 17(1)(c).

77 Such origin-neutral forms of exemption or alleviation of criminal responsibility might be

tolerated because they lack an element of bad faithon behalf of the State.

78 Bad faith of the State might be implied from the fact that a specific framework of justice or

a specific pardon policy protects one group of actors specifically in practice, although it is

formulated in origin-neutral terms (de facto discrimination).79 See also Williams, supra note 71, at 394: [I]t appeared in consultations that even where

the proceedings were not a sham that they were defective in the sense that even though the

State may be acting in good faith, there are persons whose conduct is geared to for example

cause a mistral or taint evidence.



22/26

must be conducted in a manner which is consistent with an intent to bring

the person concerned to justice. This claim will be most likely be successful

where the proceedings bear traces of a quasi-judicial process. Alternative

forms of justice may, inter alia, be said to present a credible alternative to

classical prosecution in cases where amnesty of pardon is granted after aneffective inquiry into the facts through testimony or written evidence before

an independent body, with full disclosure and a public identification of

the perpetrator and the crimes committed by him or her.

However, some additional attention should be devoted to the question

of whether any form of sanction is attached to the procedure. The example

of the East Timorese Truth and Reconciliation Commission would easily

pass this test. UNTEAT Regulation No. 2001/10 limited the reconciliation

procedure to acts which do not constitute a serious criminal offence80 and it

made the granting of immunity dependent on the performance of a visible actof remorse serving the interests of the people affected by the original offence,

such as community service, reparation, a public apology and/or other acts of

contrition.81 But it is questionable whether and under which circumstances

an isolated, quasi-judicial amnesty mechanism with full disclosure but

without mandatory sanction would meet the requirements of Article 17(2)(c).

The answer depends on the interpretation of the notion of justice.82 If the

notion of justice is assimilated to criminal justice, there is very little leeway

for the recognition of quasi-judicial proceedings which do not provide

for any form of punishment or criminal sanction. However, if the termjustice is interpreted so as to include alternative forms of justice, even

conditional amnesty regimes without automatic sanction, like the South

African truth and reconciliation mechanism, might bar the admissibility

of proceedings before the Court. It might, in particular, be argued that

quasi-judicial procedures may meet the requirements of Article 17(2)(c) in

cases in which such proceedings may lead to normal criminal trials,

e.g. because the perpetrator does not comply with certain procedural

conditions (e.g. full disclosure) or because the crime is serious, to be dealt

with in quasi-judicial proceedings. Such forms of proceedings might be saidto be in accordance with an intent to bring the person to justice because they

retain the possibility of criminal prosecution as an option of last resort.

2. Article 16

The possibility to take into account objectives of reconciliation is less disputed

in the context of Article 16 of the Statute. One of the principal objectives

80 See ss. 22.2 and 27.6 of UNTAET Regulation No. 2001/10.

81 See s. 27.7 of UNTAET Regulation No. 2001/10.

82 Note that Blacks Law Dictionary lists 11 different notions of justice, including commutativejustice, distributive justice, social justice and substantial justice. See Blacks Law Dictionary,supra note 3, at 869.

716 JICJ3 (2005), 695^720


23/26

of Article 16 is precisely to allow for a suspension of proceedings before

the Court, if such proceedings conflict with broader considerations of

international peace and security. But the window of opportunity, which

Article 16 offers to balance interests peace and security against criminal

accountability, is subject to limitations. There must, first of all, be a compellingreason for deference. The Security Council must implicitly find that

investigations or proceedings before the Court stand in contradiction to the

goals of peace and security, which is not easy to establish and not very

likely, given the United Nations own restrictive policy towards amnesties83

and the increasing recognition that justice and peace are not mutually

exclusive objectives, but rather mutually reinforcing imperatives.84

Secondly, the rationale behind Article 16 is to allow a temporary bar

to proceedings, but not to cause a permanent bar of investigations and

prosecutions. A request for deferral should therefore be temporarily limitedand linked to the immediate needs of the situation (e.g. the need of broker a

peace agreement). It can hardly serve to influence or validate the strategic

choice of a model transitional justice by a country as such, such as the decision

to place the benefits of alternative models of justice over the long-term goal

of accountability.

3. Article 53(3)(b)

Last, but not least, Article 53(3)(b) gives the Court some flexibility to

recognize a decision of the Prosecutor not to investigate or to prosecute in

order to maintain the interests of justice. The principle here is similar to

Article 16, namely that there must be a special reason to defer investigations

or prosecutions. The decision not to investigate or not to prosecute must be in

the interests of justice.

It has been contended in legal doctrine that Article 53(1)(c) and (2)(c) grant

the Prosecutor unlimited political discretion as to decide whether or not

amnesty laws constitute an exception to the jurisdiction of the Court.85

Butthis argument is not entirely convincing. It is questionable whether prosecu-

torial discretion is actually so wide. Article 53 grants the Prosecutor an oppor-

tunity to take in different criteria from factors of admissibility within the

meaning of Article 17 in its decision to investigate or prosecute.86

Nevertheless, the terms of Article 53 are quite precise in the sense that they

83 See supra note 12.84 See Report of the Secretary-General, supra note 12, Summary. See also xx 2 and 64(c) of

the Report, in which the Secretary-General requests the Council to reject any endorsement

of amnesty for genocide, war crimes, or crimes against humanity.

85 See H. Olasolo, The Prosecutor of the ICC Before the Initiation of Investigations:

A Quasi-Judicial or a Political Body?, 3 International Criminal Law Review(2003) 87 ff., at 141.86 This illustrated by the fact that the notion of interests of justice is conceived as an

independent concept from admissibility under the terms of Art. 53.



24/26

link the notion of interests of justice to specif ic parameters, such as the gravity

of the crime, the interests of victims, the age or infirmity of the alleged

perpetrator and the role of this perpetrator in the alleged crime.87 These

criteria make it clear that the notion of interests of justice is linked to justice

in a specific case (Einzelfallgerechtigkeit) rather than general policy considera-tions. It is therefore doubtful whether Article 53 offers a vast space to weigh

general interests of national reconciliation or objectives of peacemaking versus

interests of individual accountability. The concept of interests of justice

under Article 53(2)(c) and, in particular under Article 53(1)(c), appears to be

linked to individual and case-related considerations.

It is also clear that when exercising judicial review under Article 53,

judges are bound by Article 21 of the Statute. The validation of an automatic

amnesty or pardons for the most serious perpetrators and crimes might be

very well be judged contrary to the object and purpose of the Statute andemerging principles of law in this area. Moreover, it is difficult to argue that

interests of justice necessarily require the absence of ICC investigations or

prosecutions in the case of proceedings before domestic or internationalized

truth commissions. The international practice in the cases of Sierra Leone

and East Timor indicates that trials and truth commissions are increasingly

conceived as complementary mechanisms of justice.88 The fact that a

perpetrator has completed a truth and reconciliation procedure does not

necessarily absolve that person from criminal responsibility before the Court.

This idea is reflected in Articles 17(1)(c) and 20 of the Statute, which suggestthat only criminal trials bar ICC proceedings under the principle of ne bisin idem.89 It might very well be argued that the completion of a truth andreconciliation procedure should only be considered as a mitigating factor,

but not as a bar to proceedings before the Court.

4. Conclusion

This portrayal of the framework of the ICC shows that the issue of amnestiesand pardons requires a differentiated and norm-specific treatment by

interpreters. The Statute does not strictly proscribe a zero tolerance policy

towards amnesties for the core crimes. It leaves both the Prosecutor and

the Judges of the Court some leeway to strike a balance between the needs of

a society in transition and the requirements under universal and regional

treaty instruments and customary international law. But this assessment

must be made within the framework of specific statutory provisions, which

pursue different rationales.

87 See Art. 53(1)(c) and (2)(c).

88 See also the Report by the Secretary-General, supra note 12, xx25^26.89 Article 17(1)(c) refers to a person who has already been tried for conduct. Article 20(3) speaks

of a person who has been tried by another court.

718 JICJ3 (2005), 695^720


25/26

The most delicate provision is Article 17. Article 17 might be interpreted

so as to allow two kinds of deference to truth commission procedures and

alternative forms of justice: a temporary bar of ICC proceedings in the case

of ongoing judicial or quasi-judicial investigations (Article 17(1)(a)), or an

inadmissibility of ICC proceedings in cases where alternative procedures arecomplementary to domestic criminal proceedings and may subsequently

be followed by criminal sanction (Article 17(1)(b)). The final decision

of these interpretational options will depend on the future jurisprudence of

the Court.

Articles 16 and 53 are frequently overestimated in their practical

relevance for the recognition of amnesties ad alternative forms of justice.

Both provisions may potentially serve as a window to suspend (Article 16)

or forbear (Article 53) proceedings by the Court. But both options require

politically sensitive statements, which are increasingly hard to defend inthe light of the crystallization of an international rule of law at the

multilateral level, namely either a finding by the Security Council that

criminal proceedings may run counter to the objectives of peace and security,

or a statement by the Prosecutor that investigation or prosecution is contrary

to the interests of justice. Moreover, deference is, in both cases, tied to

substantive restrictions and subject to judicial interpretation two factors

which reduce the likelihood that these exceptions will gain ample room in

international practice.

The merit of the current architecture of Statute is that it leaves sufficientflexibility and discretion to the Court to adjust its interpretation to structural

changes within the international legal system. As it stands, the Statute

leaves some room to recognize amnesties and pardons, where they are

conditional and accompanied by alternative forms of justice which may lead

to prosecution. But the Court might as well develop a zero tolerance

policy towards amnesties for the core crimes over time in the light of the

evolution of international criminal law, more generally.90

This flexibility is a strength of the Statute. Nevertheless, it has at least

one disadvantage, namely legal uncertainty. Until the interpretational issuesunder the Statute are solved by legal jurisprudence and practice, societies

in transition face a wide degree of uncertainly as to which institutional designs

of transitional justice are permissible under the Statute. The safest way to

overcome this dilemma at the present stage might be a practical solution,

namely a decision to defer to the authority of the Court in a similar fashion

as the UN Regulation on the Commission of Reception, Truth and

Reconciliation in East Timor did in relation to the Special Panels for

Serious Crimes.91 Inconsistencies with the Statute may be avoided by way of

90 See also the approach taken by the Special Court for Sierra Leone, Prosecutor v. Morris Kallon,Brima Bazzy Kamara, Decision of 13 March 2004, x84, supra note 14.

91 See s. 22.2 of UNTAET Regulation No. 2001/10.



26/26

the adoption of a safeguard clause which stresses that nothing in

the domestic framework shall prejudice the prosecutorial authority of the

Prosecutor of the ICC or the jurisdiction of the ICC, as defined in the

Rome Statute. Such a solution would permit domestic authorities to

introduce alternative forms of justice for those perpetrators, which cannotbe prosecuted by the Court, while allowing states at the same time to

honour their legal obligations under the Statute and to reaffirm their

commitment to the Court.

720 JICJ3 (2005), 695^720

Alternative Forms of Justice

Documents

Transcript of Alternative Forms of Justice