On the Meaning of Justice and the Role of Amnesties in the ICC System

One of the questions raised in the ongoing debate in Pambazuka News on the International Criminal Court (ICC) is whether or not it is cogent to argue that ending impunity does not necessarily mean that prosecutions will have to be pursued in every case (Pambazuka News 144: Africa and the ICC: Is Africa ready and waiting?) It was suggested that there could be cases in Africa where it might genuinely be expedient or a requirement of justice that amnesties rather than prosecutions are pursued. The ensuing deliberations have turned the spotlight on the meaning of justice and the role of amnesties. According to the ICC statute, it looks like there is not only the possibility but also absolute necessity for the Prosecutor to consider other options besides prosecutions.

ICC was established to bring to justice perpetrators of the most serious crimes of concern to the international community. The ICC statute affirms that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. Toward that goal, the Prosecutor is empowered to receive information on crimes within the jurisdiction of the Court, examine them and conduct investigations and prosecutions. In deciding whether to initiate an investigation, the Prosecutor is enjoined to take into account ‘the gravity of the crime and the interests of victims’. Having done that, he or she is obligated to consider whether ‘there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’. There are two all-important points to note here. Firstly, the Prosecutor must consider whether an investigation may not serve the interests of justice, and secondly, a determination not to proceed may be based solely on this consideration. Even if the Prosecutor were to initiate an investigation, the ICC statute says that, upon investigation, he or she can conclude that there is not a sufficient basis for a prosecution because ‘prosecution is not in the interests of justice’. This suggests that although the general approach is that ICC crimes must not go unpunished, there might be exceptions.

The fact that the ICC statute may not envisage investigation, prosecution and punishment in every situation where it is apparent that ICC crimes have been committed could mean that other sorts of justice may be resorted to. And so justice forms that generally aim to move away from criminal verdicts and toward reconciliation come into play. Justice according to ICC is largely built around prosecution and retributive justice. But one can capture certain other nuances of ICC justice that transcend the traditional retributive understanding. The key factor in tackling the problem is to determine the circumstances under which an investigation or prosecution might not be in the interests of justice as conceived in the ICC statute.

Some are worried that alternative remedies would open the floodgates to many perpetrators. Such a possibility must be slight because the bottom-line is that decisions must be based on the interests of justice. Thus, whilst in principle some ICC crimes can go unpunished, in practice it would be extremely difficult to predict which circumstances would make an investigation or prosecution incompatible with the interests of justice. For that reason, it can be argued that one is not opening a Pandora’s box when one suggests that amnesties might be worth considering in certain special cases.

Whether or not it would be in the interests of justice not to pursue investigations or prosecutions in a given situation is largely a question of fact rather than law. It is for the Court to establish the justifiable facts of the matter. In this regard, the ICC statute guidelines say the Prosecutor should take into ‘account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime’. This appears to suggest that the views of the affected population are crucial in the determination of decisions relating to initiating investigations or prosecutions. There could be cases, for instance, where amnesty might be acceptable if it does not deny effective remedy to the victim. However, there is need to consider how the impunity gap can be reduced in light of the possibility that there could be situations where ICC investigations would not serve the interests of justice.