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National Reconciliation, Transnational Justice, and the International Criminal Court

Published online by Cambridge University Press:  28 September 2012

Juan E. Méndez
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Abstract

Universal jurisdiction and the existence of an International Criminal Court (ICC) under the Rome Statute provide a framework through which true reconciliation can be achieved simultaneously with truth and justice. The ICC and universal jurisdiction can be viewed as laying out objective limits on the power of domestic and international actors to seek peace at any cost.

This paper argues that those objective limits are not necessarily inimical to a just peace, nor are an undue burden on peacemakers. On the contrary, they can set parameters whereby a just and lasting peace can be differentiated from impunity achieved through blackmail.

The first step is to take a hard look at whether international standards of accountability for gross abuses have been met. At the same time, the examination of any specific scheme of domestic accountability cannot be done on a blanket basis. It will require a close look at conditions prevailing in the country, both at the time the scheme was adopted and later; at the policies adopted and how they were meant to advance the process of national reconciliation; at who adopted those measures and how; and at concrete applications of the scheme to individual cases.

Even applying this exacting standard, there will be cases in which the best course of action for the ICC and for third country courts will be to defer to the greater wisdom of local actors operating in good faith, and to decline to prosecute.

Type
Articles
Information
Ethics & International Affairs , Volume 15 , Issue 1 , March 2001 , pp. 25 - 44
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2001

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References

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4 The argument that the actions of Spanish and British courts were disturbing the delicate balance reached by Chileans was widely used by the Chilean government in its diplomatic offensive to bring Pinochet homeGoogle Scholar.

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7 Cited in Minow, Martha, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), p. 50Google Scholar.

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22 An interesting legal issue arises from this amnesty. Undoubtedly, Foday Sankoh and his accomplices will invoke it as a defense against future prosecutions, either in Sierra Leone or abroad. A strong case can be made that it is invalid both as a matter of domestic and of international law, not only because it is contrary to the emerging principles discussed in this essay, but also because it was conditional on the rebels' abiding by the obligations they assumed in the peace agreement and then promptly ignored. In October 2000, the UN settled this question with regard to the hybrid court that is being set up and will have jurisdiction both for international crimes and for some domestic law offenses. The amnesty will apply only to the latter. See Michael Scharf, “The Special Court for Sierra Leone,”ASIL Insight, October 2000; available on American Society of International Law Web page at http://www.asil.org/insigh53.htm.

23 In Sierra Leone the hybrid option is to set up a court of domestic jurisdiction with international support and some UN participation. Michael Scharf, “The Special Court for Sierra Leone.” It appears that something similar is being negotiated for CambodiaGoogle Scholar.

24 Although Spanish nationals were included as victims in the early stages of the Garzón prosecution, the Spanish jurisdictional statute is not a “passive personality” but a true “universal jurisdiction” statute, meaning that Garzón had jurisdiction whatever the nationality of the victims. In fact, the case was later expanded to include many non-Spanish victims, and the warrant of arrest against Pinochet came out of Garzón's evidence about Operation Condor, whose victims were not Spanish nationalsGoogle Scholar.

25 They were excluded under the “double criminality” rule of extradition law, as the Law Lords decided that extraterritorial torture (as opposed to torture itself) had not become a crime in British law until 1988, when the Convention against Torture was ratified and implementedGoogle Scholar.

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28 Not surprisingly, in countries like Chile, Argentina, and Uruguay, courts have begun to interpret these laws narrowly, so as to give effect to principles of international law. For example, judges will continue inquiries and investigations until the facts establish clearly whether the amnesty applies. Disappearances are considered “continuing crimes” whose effects outlive the amnesty, at least until the death of the victim and its circumstances are reliably established. Courts also institute procedures of investigation into the facts in order to give effect to the “right to truth” as one of those emerging obligations of the state, even if in the end no punishment is possible. See Felipe Michelini, “El largo camino de la verdad,”Revista IIDH 24 (July/December 1996), pp. 157–72; Martín Abregú, “La tutela judicial del derecho a la verdad en la Argentina,”Revista IIDH 24 (July/December 1996), pp. 11–47; Méndez, Juan, “Derecho a la verdad frente a las graves violaciones a los derechos humanos,” in Abregú, Martin and Courtis, C., eds., La aplicacion de los tratados sobre derechos humanos por los tribunates locales (Buenos Aires: Del Puerto-CELS, 1997Google Scholar); Méndez, “Accountability for Past Abuses.”

29 Rome Statute, Art. l. Complementarity does not apply to the ICTY and ICTR, since they enjoy primacy of jurisdiction. For the same reason, they are not bound by any domestic decision on clemencyGoogle Scholar.

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