The Prosecutor of The International Criminal Court Amnesties An

Washington University Global Studies Law Review
Volume 4 Issue 2
January 2005
The Prosecutor of the International Criminal Court, Amnesties,

and the “Interests of Justice”: Striking a Delicate Balance
Thomas Hethe Clark
Washington University School of Law
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THE PROSECUTOR OF THE INTERNATIONAL
CRIMINAL COURT, AMNESTIES, AND THE
“INTERESTS OF JUSTICE”:
STRIKING A DELICATE BALANCE
I. INTRODUCTION
The International Criminal Court (ICC) represents a “quantum-leap”1

in the enforcement of international criminal law and a monumental
response to the “the most serious crimes of concern to the international
community as a whole.”2 It stands as a determination that de facto
impunity should no longer be enjoyed by those perpetrating genocide, war
crimes and crimes against humanity by ensuring that cases are tried even
when states are unwilling or unable to do so themselves.3 The Court is one
of last resort and is not intended to replace domestic legal systems.4
Indeed, the aspirations of its drafters will be fulfilled just as surely if
national systems carry out legitimate investigations and prosecutions on
1. LEILA NADYA SADAT, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION
OF INTERNATIONAL LAW: JUSTICE FOR THE NEW MILLENNIUM 19 (2002) [hereinafter SADAT, THE
INTERNATIONAL CRIMINAL COURT]. “It is conceivable, perhaps, that we have reached a stage during
which a quantum leap in our thinking and behavior has become possible—enabling us to transform the
prohibitions on the commission of genocide, war crimes, crimes against humanity and aggression into
real tools to deter the cruel and powerful.” Id.
2. Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998, Annex II,
U.N. Doc. A/CONF.183/9 (1998) [hereinafter Rome Statute], pmbl. The Rome Statute was adopted by
a vote of 120 to 7 on July 17, 1998. Press Release, U.N. Diplomatic Conference Concludes in Rome
with Decision to Establish Permanent International Court (July 17, 1998), U.N. Doc. L/ROM/22
(1998), http://www.un.org/icc/pressrel/1rom22.htm (last visited Nov. 12, 2004). For a brief description
of the statute’s coming into force on July 1, 2002, see Leila Nadya Sadat, The International Criminal
Court Treaty Enters into Force, ASIL INSIGHT (April 2002), at http://www.asil.org/
insights/insigh86.htm (last visited Nov. 6, 2004).
3. Rome Statute, supra note 2, pmbl. The seriousness of this issue is brought into clear focus
when one considers that 170 million civilians have been killed in various conflicts around the world
since the end of World War II. M. Cherif Bassiouni, The Normative Framework of International
Humanitarian Law: Overlaps, Gaps and Ambiguities, 8 TRANSNAT’L L. & CONTEMP. PROBS. 199,
203 (1998). The “culture of impunity that has prevailed to date” must be addressed, and the ICC
represents a real advance in the international legal community’s effort to develop an institution and
institutional framework in which to combat and deter these international crimes. Leila Nadya Sadat,
Universal Jurisdiction, National Amnesties & Truth Commissions: Reconciling the Irreconcilable, in
UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER
INTERNATIONAL LAW 193, 194 (Stephen Macedo ed., 2003).
4. Jelena Pejic, Creating a Permanent International Criminal Court: The Obstacles to
Independence and Effectiveness, 29 COLUM. HUM. RTS. L. REV. 291, 308–09 (1998).
389
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their own.5 Thus, while a creation of historic import, the Rome Statute of
the International Criminal Court (Rome Statute) envisions a Court that
“may never be employed.”6 This perspective is reflected in two very
significant ICC salutes to state sovereignty: complementarity7 and
prosecutorial deferrals in “the interests of justice.”8
These “salutes” are the product of one of the most difficult negotiation
points of the Rome Conference: When should the ICC defer to national
proceedings?9 There was a battle of conflicting purposes at Rome. On the
one hand, there was the international obligation of states to prosecute
international crimes10 added to the practical impossibility of placing that
burden solely upon international tribunals (ad hoc or permanent).11
Opposing this view were those who advocated state sovereignty and the
need to retain flexibility with regard to truth and reconciliation efforts,
especially amnesty, in the context of difficult regime change. The result: a
system in which prosecutorial discretion will be exercised in the context of
purposefully vague provisions that recognize that “peace and justice are
sometimes incompatible goals.”12 Thus, amnesty-granting programs and
alternative justice schemes remain possible, even in situations where there
5. See, e.g., Mark S. Ellis, The International Criminal Court and its Implication for Domestic
Law and National Capacity Building, 15 FLA. J. INT’L L. 215, 221–25 (2002). The author states that
“. . . at the heart of this principle is the understanding that the most serious crimes of concern to the
international community must be prosecuted at a national level.” Id. at 221; Jerry Fowler, Not Fade
Away: The International Criminal Court and the State of Sovereignty, 2 SAN DIEGO INT’L L.J. 125,
130–35 (2001); Jeffrey L. Bleich, Report of the International Law Association; Published Jointly with
Association Internationale de Droit Penal, 13 NOUVELLES ETUDES PENALES 1997: Complementarity,
25 DENV. J. INT’L L. & POL’Y 281, 281–83 (1997); Lieutenant Colonel Michael A. Newton,
Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the
International Criminal Court, 167 MIL. L. REV. 20, 26–27 (2001).
6. John T. Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE
OF THE INTERNATIONAL CRIMINAL COURT 667 (Antonio Cassese et al. eds., 2002) [hereinafter
Holmes, Complementarity].
7. Rome Statute, supra note 2, art. 17.
8. Id. art. 53(1)(c).
9. David J. Scheffer, Fourteenth Waldemar A. Solf Lecture in International Law: A
Negotiator’s Perspective on the International Criminal Court, 167 MIL. L. REV. 1, 10–12 (2001).
10. For instance, there is a legal obligation of all signatories of the Geneva Conventions to
prosecute “grave breaches” of the Geneva Conventions and for signatories of the 1949 Genocide
Convention to criminally prosecute those who perpetrate genocide. To the extent that the Geneva
Conventions and the Genocide Convention represent the present state of customary international law,
an obligation exists for all states to criminally prosecute those who commit such serious international
crimes. M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 LAW &
CONTEMP. PROB. 63 (1996).
11. Holmes, Complementarity, supra note 6, at 670.
12. Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal
Court, 32 CORNELL INT’L L.J. 507, 507 (1999) [hereinafter Scharf, The Amnesty Exception].
2005] STRIKING A DELICATE BALANCE 391
would otherwise appear to be an obligation on the ICC to prosecute

criminally.
While the statute’s final draft created a compromise agreeable to the
120 countries that voted for it,13 observers are left with some significant
questions, including those that form the focus of this inquiry. First, when
would the Court likely defer to a national prosecution, truth and
reconciliation campaign, or amnesty? Second, what are the significant
predictive factors? As the ICC has begun its work with an investigation of
events in the Democratic Republic of Congo14 and has been referred a case
by Uganda, a state party to the Rome Statute,15 these points have taken on
greater significance and must be addressed in the near-term. Indeed, the
question of amnesty (and amnesty laws) has been specifically raised in the
Uganda referral16 and, as a result, an understanding of these mechanisms
must be developed.
Part I of this Note describes means by which the Court may defer to the
efforts of states party to the Rome Statute: complementarity and
prosecutorial deferrals “in the interests of justice.”17 Put briefly,
complementarity precludes ICC jurisdiction in scenarios in which a state
with jurisdiction is willing or able to prosecute. The deferral power allows
the ICC Prosecutor to defer to alternative justice mechanisms and
amnesty-granting programs when it will be in the interest of justice, thus
giving him broad discretion. Part II considers some of the factors the Court
will likely take into account in deciding whether to defer to a national
proceeding. These include, inter alia: whether the state is willing or able
13. Press Release, U.N. Diplomatic Conference Concludes in Rome with Decision to Establish
Permanent International Court (July 17, 1998), U.N. Doc. L/ROM/22 (1998), http://www.un.org/
icc/pressrel/1rom22.htm (last visited Nov. 12, 2004). For details of the Rome Conference, including a
list of the countries participating, see Final Act of the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc.
A/CONF.183/10 (1998). Notably, nearly 250 Non-governmental Organizations (NGOs) also
participated in the negotiations at Rome. M. Cherif Bassiouni, Historical Survey: 1919–1998, in
STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY 1, 26 n.135 (M.
Cherif Bassiouni ed., 1998).
14. Democratic Republic of Congo @ Int’l Criminal Court: 2nd Referral; International Criminal
Court Announces State Referral from the Democratic Republic of Congo, M2 PRESSWIRE, Apr. 19,
2004, 2004 WL 74987752 (on file with The Washington University Global Studies Law Reveiw).
15. A Catastrophe Ignored, ECONOMIST, July 24, 2004, at 46.
16. See Press Release, ICC, President of Uganda refers situaton concerning the Lords’
Republican Army (LRA) to the ICC (Jan. 29, 2004), available at http://www.icc-cpi.int/pressrelease_
details&id=16&1=en.html (last visited Mar. 18, 2005).
17. Rome Statute, supra note 2, art. 53(2)(c). There remains a further option by which the ICC
may delay proceedings: a Security Council request for deferral under article 16 of the Rome Statute.
While significant, this topic lies outside the scope of this paper as I intend to focus on those means of
deferral that rely on the actions of the ICC and the nation party to the Rome Statute exclusively, and
not those of third-party actors (the Security Council).

to prosecute; whether there is a legal obligation to prosecute; and whether

the alternative justice or amnesty-granting program is partial or blanket
and meets certain other criteria described herein. Part III presents four
hypothetical scenarios based loosely on real-life events that will describe
the significant predictive factors and discuss the likely treatment by the
Court.
II. BACKGROUND
A. Brief History of the ICC
The historical roots of the ICC can be traced to 1899,18 though no

significant progress toward the creation of the Court was made until after
the Second World War.19 The most significant moment of the Twentieth
18. SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 21–26. In Professor Sadat’s
words, the “adoption of the International Criminal Court Statute is the culmination of a Century of
hard work and false starts.” Id. at 4.
19. Id. at 24. Conferences were held in The Hague in 1899 and 1907 at the invitation of Czar
Nicholas II, out of which grew much of the international law of war and international humanitarian
law. Id. at 22–23. There were some encouraging moments at the end of World War I when, according
to article 228 of the Treaty of Versailles, Germany acknowledged the right of the Allies to try German
citizens for their role in the commission of war crimes. Treaty of Peace with Germany (Treaty of
Versailles), June 28, 1919, 2 Bevans 43. A similar provision was included in the Treaty of Sévres,
which ended the war with Turkey. Treaty of Peace Between the Allied Powers and Turkey (Treaty of
Sévres), Aug. 10, 1920, art. 230, reprinted in 15 AM. J. INT’L L. 179, 235 (Supp. 1921) (never entered
into force), cited in Paul D. Marquardt, Law Without Borders: The Constitutionality of an
International Criminal Court, 33 COLUM. J. TRANSNAT’L L. 73, 79 (1995).
However, little came of these treaty provisions and, indeed, the notions of justice and law arising
from The Hague conferences and World War I were hamstrung by the still-dominant notion of state
sovereignty. Indeed, the German War Crimes Trials were “merely symbolic,” the Dutch refused to
extradite the Kaiser after he took refuge in the Netherlands, and the war crimes and crimes against
humanity provisions in the Treaty of Sévres were left out of the Treaty of Lausanne. Id. See also M.
Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish an
International Criminal Court, 10 HARV. HUM. RTS. J. 11, 19 (1997).
It was not until after Europe twice lay in ruins that the notion of criminal liability for individuals
came to the fore. SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 24–25. Important
questions needed to be addressed before the idea of an international criminal court could be seriously
pursued. Jordan J. Paust, Conceptualizing Violence: Present and Future Developments in International
Law: Panel II: Adjudicating Violence: Problems Confronting International Law and Policy on War
Crimes and Crimes Against Humanity: It’s No Defense: Nullum Crimen, International Crime, and the
Gingerbread Man, 60 ALB. L. REV. 657, 658 (1997). First was the ever-present obstacle of states
religiously clinging to their particular notion of sovereignty. Second, the absence of positive law with
regard to international crimes, thus implicating the principle of nullum crimen sine et lege (no crime
without law). Id. Finally, questions remained with regard to whether an international criminal court
would actually be an effective deterrent to future wars. SADAT, THE INTERNATIONAL CRIMINAL
COURT, supra note 1, at 25.
These concerns were, in significant part, addressed by the Nuremburg Tribunals, which arguably
provided the “positive law thought to be lacking prior to [their] existence.” Id. at 30. They also notably
rejected arguments based on state sovereignty, providing instead that individuals—not “abstract
Century in the development of international law in general, and the

development of the ICC in particular, were the Nuremberg Trials20 at the
end of World War II.21 For it was at this time individuals began to take on
international legal personality22 and became subject to prosecution for
their individual roles in the perpetration of international crimes.23
Unfortunately, the legacy of Nuremberg was stunted by Cold War
political competition and politics until the 1990s,24 when the U.N. Security
Council, at last released from the straight-jacket placed upon it by
competition among its permanent members,25 made two significant
contributions to the legacy of Nuremberg with the creation of the ad hoc
entities”—can be found culpable for international crimes. Id. at 29. This outlook gave the international
community greater reason to believe in the deterrent power of international law. Id.
20. The Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis, Charter of the International Military Tribunal, August 8, 1945, 8 U.N.T.S. 279,
reprinted in 39 AM. J. INT’L L. 257 (Supp. 1945).
21. Leila Nadya Sadat & Richard S. Carden, The New International Criminal Court: An Uneasy
Revolution, 88 GEO. L.J. 381, 385 (2000). The Nuremburg Trials were accompanied by the
International Military Tribunal for the Far East (“Tokyo Tribunal”), which was established by General
MacArthur’s Special Proclamation. See Charter of an International Military Tribunal for the Far East,
Jan. 19, 1946, T.I.A.S. No. 1589, at 3, 4 Bevans 20.
Generally, the Tokyo Tribunals are not as well regarded, mostly as a result of the “perception”
that this tribunal was not administered fairly with regard to defendants. SADAT, THE INTERNATIONAL
CRIMINAL COURT, supra note 1, at 27. See also In re Yamashita, 327 U.S. 1, 28–29 (1946) (Murphy,
J., dissenting), cited in Fair Trials and the Role of International Criminal Defense, 114 HARV. L. REV.
1982 n.1; Marquardt, Law Without Borders, supra note 19, at 83; Bassiouni, From Versailles to
Rwanda, supra note 19, at 31–35 (stating “[f]or the Japanese, the trials were victors’ vengeance
couched in terms of victors’ justice.”).
Both tribunals are obviously open to the criticism that they were merely “‘victors’ justice.” Even
the Nuremburg Trials, while characteristic of greater rights to the accused, were “one-sided.” Id. at 29.
22. SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 29.
23. With regard to this issue, the Tribunals issued the following famous statement: “Crimes
against international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced.” Judgment of
October 1, 1946, International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AM. J.
INT’L L. 172, 221 (1947).
24. See, e.g., Bassiouni, From Versailles to Rwanda, supra note 19, at 39 (stating “[j]ustice was
the Cold War’s casualty.”). As the reader is aware, the permanent members of the Security Council
(France, China, Great Britain, the former Soviet Union and the United States) each individually hold a
veto over the actions of the Security Council. The Security Council was yet another forum in which
the United States and Soviet Union played out their Cold War competition—measures supported by
either party were often seen as either a capitalist or communist conspiracy and the opposing party
would automatically employ its veto. Id. at 49–57. See also W. Michael Reisman, The Constitutional
Crisis in the United Nations, 87 AM. J. INT’L L. 83, 85 (1993) (declaring “. . . the Cold War . . . ended
and, suddenly, the Council, by national or international governmental standards, seems remarkably
effective.”); David Bills, International Human Rights and Humanitarian Intervention: The
Ramifications of Reform of the United Nations’ Security Council, 31 TEX. INT’L L.J. 107, 110 (1996)
(remarking “[w]ith the end of the Cold War, however, the United Nations finds itself at the forefront of
international relations, and the political deadlocks within the Security Council have abated
substantially.”).
25. Bassiouni, From Versailles to Rwanda, supra note 19, at 49, 52.

tribunals for the former Yugoslavia and Rwanda.26 The successes and
shortcomings of these tribunals led many to believe that a permanent court
should be the next step in the evolution of international justice,27 and
provided an impetus for the Rome Conference at which the ICC finally
realized its creation.28
B. Limits on the ICC’s Jurisdiction
The ICC’s jurisdiction is limited to “the most serious crimes of concern

to the international community as a whole.”29 These crimes include
genocide, crimes against humanity, and war crimes.30 The Court’s
26. Statute of the International Tribunal for the Former Yugoslavia, U.N. SCOR, 48th Sess.,
3217th mtg., U.N. Doc. S/RES/827 (1993); Statute of the International Tribunal for Rwanda, U.N.
SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994). While laudable in their intent and
significant in their role in the evolution of international law, these tribunals have significant
shortcomings. They suffer from their political nature (they were created by the Security Council, a
political organ), and “tribunal fatigue,” which many supporters have experienced due to the necessity
of building each court from the ground up, a proposition with high costs administratively and, most
significantly, in terms of jurisprudence. Michael P. Scharf, The Politics of Establishing an
International Criminal Court, 6 DUKE J. COMP. & INT’L L. 167, 169–70 (1995); Michael P. Scharf,
Results of the Rome Conference for an International Criminal Court, ASIL INSIGHTS (Aug. 1998), at
http://www.asil.org/insights/insigh23.htm (last visited Nov. 6, 2004).
27. See Patricia M. Wald, Why I Support the International Criminal Court, 21 WIS. INT’L L.J.
513 (2003); M. Cherif Bassiouni, Foreword to SADAT, THE INTERNATIONAL CRIMINAL COURT, supra
note 1, at xiv. Indeed, various Security Council Members argued that a permanent international
criminal court would be the most appropriate response to the crimes committed in the former
Yugoslavia and Rwanda; however, the political advantages of courts created—and for the most part
controlled—by the Security Council carried the day. Bassiouni, From Versailles to Rwanda, supra
note 19, at 42, 52.
28. The development of the Rome Statute began anew in unexpected fashion when, in 1989, the
General Assembly, pursuant to a resolution introduced by sixteen Caribbean and Latin American
nations, requested that the International Law Commission draft a report regarding jurisdiction over
persons involved in drug trafficking. The ILC went beyond that mandate to create a Draft Statute for
an International Criminal Court. See Revised Report of the Working Group on the Draft Statute for an
International Criminal Court, U.N. GAOR, 48th Sess., U.N. Doc. A/CN.4/L.490 (1993); Revised
Report of the Working Group on the Draft Statute for an International Criminal Court: Addendum,
U.N. GAOR, 48th Sess., U.N. Doc. A/CN.4/L.490/Add.1 (1993). The General Assembly created a
Preparatory Committee in order to consider the ILC’s Draft Statute. Id. The Preparatory Committee
held six official and several inter-sessional sessions (including important sessions in Zutphen, the
Netherlands, and Siracusa, Italy) in preparation for the Rome Conference in the Summer of 1998.
SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 40–43.
30. These crimes (genocide, war crimes, and crimes against humanity) are defined in articles 6–8
of the Rome Statute. Note that aggression (the “supreme international crime” according to the
Nuremburg Judgment (Judgment of Oct. 1, 1946, International Military Tribunal (Nuremberg)
Judgment and Sentences, October 1, 1946 Judgement 41 AM. J. INT’L L. 172, 186 (1947)) is also
slated to become part of the Court’s jurisdiction upon agreement by the Assembly of States Parties
with regard to its definition. See Rome Statute, supra note 2, arts. 121, 123 (describing the procedure
by which the Rome Statute may be amended). The definition of aggression has long been a difficult
political problem. The General Assembly appointed four Special Committees on the Question of
jurisdiction over these crimes is non-retroactive31 and, thus, crimes

committed before the treaty came into force, or before the ratification of
the party-State with jurisdiction, are outside the jurisdiction of the Court.32
Cases may come before the Court33 through referral by the Security
Council,34 referral by a state party to the Rome Statute,35 or through an
Defining Aggression from 1952 to 1974. The fourth committee’s recommended definition was adopted
by the General Assembly by consensus resolution. Definition of Aggression, G.A. Res. 3314(xxix),
U.N. GAOR 29th Sess., Supp. No. 31, at 142, U.N. Doc. A/9631 (1974). See Bassiouni, From
Versailles to Rwanda, supra note 19, at 53–54; SADAT, THE INTERNATIONAL CRIMINAL COURT, supra
note 1, at 133. Defining aggression was no less difficult in Rome, and the issue threatened to derail the
entire conference until a compromise was agreed upon that put aggression within the crimes under the
ICC’s jurisdiction, though leaving it to be defined by the Assembly of States Parties to the ICC not
before seven years after the Statute enters into force, in accordance with article 123 of the Rome
Statute. Rome Statute, supra note 2, art. 123.
31. Rome Statute, supra note 2, art. 11. The ratione temporis of the Court is restricted to crimes
committed after the coming into force of the Rome Statute on July 1, 2002, or after the time when a
state that has territorial or national jurisdiction becomes a party to the Court. Id. Note that the principle
of non-retroactivity ratione personae uses broader language and provides that “no person shall be
criminally responsible under this Statute for conduct prior to the entry into force of this Statute.” Id.
art. 24.
Use of the term “conduct” clearly represents a broader bar than the use of the term “crime” in
article 11. Conduct, according to the preparatory history of the statute, was included in order to limit
the court’s jurisdiction over “continuing crimes”—those that begin before the temporal jurisdiction of
the court, but continue into the court’s ratione temporis. SADAT, THE INTERNATIONAL CRIMINAL
COURT, supra note 1, at 185–86. See also Alan Nissel, Continuing Crimes in the Rome Statute, 25
MICH. J. INT’L L. 653 (2004).
The question of temporal jurisdiction may yet be open to a broader interpretation. For instance, in
The Media Cases, recently decided by the International Criminal Tribunal for Rwanda, the court held
that a continuing crime (in that case, the crime of direct and public incitement to genocide), though its
perpetration may begin before the temporal jurisdiction of the court begins, may be found within the
jurisdiction of the court so long as the “acts contemplated” occur within the ratione temporis of the
ICTR. Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T, Judgment (Trial
Chamber I, Dec. 3, 2003), para. 1017; see also Prosecutor v. Nsengiyumva, Case No. ICTR-96-12-I,
Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the Amended
Indictment, (Trial Chamber III, Apr. 13, 2000), para. 28. Thus, crimes that were found to have begun
in their commission before Jan. 1, 1994 were considered as falling within the temporal jurisdiction of
the ICTR. The ICC may choose to follow a similar route with regard to continuing crimes in order that
it might carry out the object and purposes of the Rome Statute.
32. Rome Statute, supra note 2, arts. 11, 25.
33. For a useful summary of the means by which matters may be referred to the court, see
SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 294.
34. Rome Statute, supra note 2, art. 13(b). Note that an article 13 referral by the Security
Council, on the basis of its Chapter VII powers over international peace and security, is binding on all
nations, not just those who are states parties to the Rome Statute. U.N. CHARTER, arts. 25, 103; Certain
Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), 1962 I.C.J. 151 (July 20);
Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding
Security Council Resolution 276, 1971 I.C.J. 16, 52 (Jan. 26). Thus, in these instances, many of the
issues herein discussed are no longer applicable as an investigation by the Prosecutor would be
required.
35. Rome Statute, supra note 2, arts. 13(a), 14.

investigation by the prosecutor, ex proprio motu.36

The ICC must, in general, defer to national proceedings or
investigations,37 a principle that has come to be known as
complementarity.38 In general, the ICC has no jurisdiction when a case is
being, or has been, investigated or prosecuted, “unless the State is
unwilling or unable genuinely to carry out the investigation or
prosecution.”39 As noted above, the ICC may also defer to national
proceedings if the Prosecutor decides that action by the ICC would not be
“in the interests of justice.”40 Thus, the Prosecutor41 has a measure of
36. Id. arts. 13(c), 15. “Ex proprio motu” is defined as “of one’s own accord.” BLACK’S LAW
DICTIONARY (7th ed. 1999). While referrals by state parties and investigations by the prosecutor are
limited to instances in which the state of the perpetrator’s nationality or the state on whose territory the
crime was committed is a party to the Rome Statute (Rome Statute, supra note 2, art. 12(2)), this
limitation does not apply to Security Council referrals based on its Ch. VII powers as all nations must
comply with such directives. U.N. CHARTER, art. 103. See generally Questions of Interpretation and
Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamarihiriya v. United Kingdom), 1992 I.C.J. (Apr. 14) [hereinafter The Lockerbie Case], at 26
(separate opinion of Judge Lachs), at 32 (separate opinion of Judge Shahabuddeen, pt. iii). Note that
non-parties may also accept the exercise of jurisdiction by the ICC. Rome Statute, supra note 2, art.
12(3).
38. For a useful (and extensive) look at the history and development of the principle of
complementarity, see Mohamed El Zeidy, The Principle of Complementarity: A New Machinery to
Implement International Criminal Law, 23 MICH. J. INT’L L. 869 (2002). See also Jelena Pejic,
Creating a Permanent International Criminal Court: The Obstacles to Independence and
Effectiveness, 29 COLUM. HUM. RTS. L. REV. 291, 308–10 (1998); Johan D. van der Vyver, Personal
and Territorial Jurisdiction of the International Criminal Court, 14 EMORY INT’L L. REV. 1, 66–98
(2000); Jennifer J. Llewellyn, A Comment on the Complementary Jurisdiction of the International
Criminal Court: Adding Insult to Injury in Transitional Contexts?, 24 DALHOUSIE L.J. 192 (2001);
David J. Scheffer, Staying the Course with the International Criminal Court, 35 CORNELL INT’L L.J.
47, 59–63 (2001); Jordan J. Paust, The Reach of ICC Jurisdiction over Non-Signatory Nationals, 33
VAND. J. TRANSNAT’L L. 1, 8–10 (2000).
39. Rome Statute, supra note 2, art. 17(1)(a), (b). For a discussion of complementarity from the
viewpoint of the leader of the U.S. Delegation to the Rome Conference and former U.S. Ambassador-
at-Large for War Crimes, see David J. Scheffer, The United States and the International Criminal
Court, 93 AM. J. INT’L L. 12 (1999).
In a further compromise to those stressing state sovereignty and in an effort to allay U.S.
concerns, complementarity was given “teeth,” or strengthened by a regime in which the Prosecutor
must notify states that could otherwise exercise jurisdiction that he intends to begin an investigation.
Rome Statute, supra note 2, art. 18. States have one month to announce that they are investigating; so
long as they do so, the Prosecutor must automatically defer. Id. See generally Is a U.N. International
Criminal Court in the U.S. National Interest?: Hearing Before the Subcommittee on Int’l Operations
of the Senate Comm. on Foreign Relations, 105th Cong. 34 (1998) (statement by Michael P. Scharf),
available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_senate_hearings &docid
=f:50976.wais (last visited Nov. 8, 2004).
40. Rome Statute, supra note 2, art. 53(2)(c). Note that, under article 16 of the Rome Statute, the
Security Council, when acting under its Ch. VII powers, may also request the ICC to defer a
prosecution. Such a request under Ch. VII implies a belief that prosecution by the ICC would interfere
with some Security Council effort to maintain international peace and security. Darryl Robinson,
Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court,
discretion,42 though his43 decisions to defer are reviewable by the Court’s

Pre-Trial Chamber.44
14 EUR. J. INT’L L. 481, 486 (2003) [hereinafter Robinson, Amnesties]. Security Council Resolutions
1422 and 1487 purported to act under this rationale when they requested, under article 16, that the ICC
“not commence or proceed with investigation or prosecution” of personnel from a contributing state
that is not Party to the Rome Statute, “unless the Security Council decides otherwise.” S.C. Res. 1422,
U.N. SCOR, 57th Sess., U.N. Doc. S/RES/1422 (2002); S.C. Res. 1487, U.N. SCOR, 58th Sess., U.N.
Doc. S/RES/1487 (2003). See Carsten Stahn, The Ambiguities of Security Council Resolution 1422, 14
EUR. J. OF INT’L LAW 85 (2003).
The Security Council made a further request, this time not based on article 16 of the Rome
Statute, when it adopted Resolution 1497 in response to the situation in Liberia. S.C. Res. 1497, U.N.
SCOR, 58th Sess., U.N. Doc. S/RES/1497 (2003). Much has been made of these requests, and the
debate over whether these actions were ultra vires has been hotly contested. For debate within the
Security Council, see U.N. SCOR 57th Sess., 4568th mtg., U.N. Doc. S/PV.4568 (2002); U.N. SCOR
57th Sess., 4568th mtg. at 10, U.N. Doc. S/PV.4568 (Resumption 1). For a useful discussion of the
legality of this Security Council action, see Amnesty International, International Criminal Court: The
Unlawful Attempt by the Security Council to Give U.S. Citizens Permanent Impunity from
International Justice, AI Index: IOR 40/006/2003 (May 2003), at http://www.iccnow.org/
documents/otherissues/1422/Amnesty1422May2003.pdf (last visited Nov. 6, 2004); Roberto Lavalle,
A Vicious Storm in a Teacup: The Action by the United Nations Security Council to Narrow the
Jurisdiction of the International Criminal Court, 14 CRIM. L.F. 195 (2003); Mohamed 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 VAND. J. TRANSNAT’L L. 1503, 1510 (2002); Brian MacPherson,
Authority of the Security Council to Exempt Peacekeepers from International Criminal Court
Proceedings, ASIL INSIGHT, July 2002, at http://www.asil.org/insights/insigh89.htm (last visited Nov.
6, 2004); Morten Bergsmo & Jalena Pejic, Article 16: Deferral of Investigation or Prosecution, in
COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: OBSERVERS’
NOTES, ARTICLE BY ARTICLE 373 (Otto Triffterer ed., 1999). While a fascinating point that contributes
indirectly to this topic, this area of debate is beyond the scope of this work.
41. Generally, the investigative process proceeds as follows: a case is referred to the Prosecutor
by a state party to the statute (or, in certain circumstances, a non-state party according to article 12(3))
or by the Security Council. Upon receiving the information, the Prosecutor is to consider whether the
information provides a reasonable basis upon which to proceed, and whether the case would be
admissible under article 17 (the complementarity provisions). Rome Statue, supra note 2, art. 15(1). It
is at this point that the prosecutor may determine “that an investigation would not serve the interests of
justice.” Rome Statute, supra note 2, art. 53(1)(c). If the prosecutor determines that there is no
reasonable basis to proceed, he must then inform both the Pre-Trial Chamber and the referring state, or
the Security Council. The decision may then be reviewed by the Pre-Trial Chamber at the request of
either the referring state or by the Pre-Trial Chamber, ex proprio motu. Id. art. 15(3). See Allison
Marston Danner, Enhancing the Legitimacy & Accountability of Prosecutorial Discretion at the
International Criminal Court, 97 AM. J. INT’L L. 510, 516–18 (2003).
42. The deferral is also a reflection of “the statutory principle of prosecutorial independence . . .
based on the interest of impartial justice on which the credibility and legitimacy of the criminal justice
process depends. At the core of any notion of prosecutorial discretion lies the power to decide whether
or not to investigate and prosecute.” Morten Bergsmo & Pieter Kruger, Article 53: Initiation of an
Investigation, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT:
OBSERVERS’ NOTES, ARTICLE BY ARTICLE 702 (Otto Triffterer ed., 1999).
43. For bibliographic information regarding the current prosecutor of the ICC, Luis Moreno-
Ocampo, see Official Website of the International Criminal Court, The Chief Prosecutor, at
http://www.icc-cpi.int/otp/otp_bio.html (last visited Nov. 6, 2004). Moreno-Ocampo is a renowned
human rights academic and served as prosecutor during the high-profile trials of the Argentine military
junta. He has been a visiting professor at Harvard and Stanford law schools. Marlise Simons,
Argentine is Expected to be Prosecutor for War Crimes Court, N.Y. TIMES, Mar. 24, 2003 (late ed.), at

III. WHEN DOES THE ROME STATUTE REQUIRE THAT THE ICC
ADJUDICATE?
A. In Some Instances, Criminal Prosecution May Be the Only Legal

Option
Criminal prosecution is required for some of the crimes within the

ICC’s jurisdiction.45 For example, genocide and “grave breaches” of the
1949 Geneva Conventions necessitate criminal prosecutions.46 This
obligation finds its source, first, in treaty law. The Genocide Convention47
and the “grave breaches” provisions of the Geneva Conventions of 194948
explicitly require that states criminally prosecute the perpetrators of acts
outlawed by the respective treaties.49 Second, genocide has achieved jus
A2; World Briefing Europe: The Hague: International Prosecutor Sworn In, N.Y. TIMES, June 17,
2003 (late ed.), at A6.
44. Note that the precise meaning of “interests of justice” is not defined in the statute. The
chapeau of the Rome Statute merely states that the decision may not be invoked upon “arbitrary
grounds” and that the discretion must be exercised “in a reasonable manner.” Bergsmo & Kruger,
supra note 42, at 709–10. It is likely that a decision to defer will be confirmed, as “interests of justice”
appears to be a relatively broad concept. Robinson, Amnesties, supra note 40, at 488.
45. John Dugard, Possible Conflicts of Jurisdiction with Truth Commissions, in THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT 693, 696 (Cassese et al. eds., 2001).
46. M. CHERIF BASSIOUNI, POST-CONFLICT JUSTICE 259 (2002) (noting that “the notion of
granting amnesty for genocide, crimes against humanity, and serious war crimes would be inconsistent
with the principles of individual criminal responsibility recognized in the Nuremberg Charter and
Judgment.”); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations
of a Prior Regime, 100 YALE L.J. 2542, 2542–44 (1991); Michael P. Scharf, The Amnesty Exception,
supra note 12, at 514–21.
47. Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9,
1948, 78 U.N.T.S. 277, 28 I.L.M. 760 (entered into force Jan. 12, 1951) [hereinafter Genocide
Convention].
48. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field Aug. 12, 1949, arts. 49–50, 6 U.S.T. 3114, 75 U.N.T.S. 31 (entered into
force Oct. 21, 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of
War Aug. 12, 1949, arts. 146–147, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950)
[hereinafter Fourth Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of
War Aug. 12, 1949, arts. 129–130, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950);
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea Aug. 12, 1949, arts. 50–51, 6 U.S.T. 3217, 75 U.N.T.S. 85 (entered
into force Oct. 21, 1950).
49. Grave breaches of the Geneva Conventions are defined, for example, in article 147 of
Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, and include:
Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the present Convention:
wilful killing, torture or inhuman treatment, including biological experiments, wilfully
causing great suffering or serious injury to body or health, unlawful deportation or transfer or
unlawful confinement of a protected person, compelling a protected person to serve in the
forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of hostages and extensive
cogens status as an international crime,50 creating obligatio erga omnes,51

while the Geneva Conventions are considered representative of the current
state of customary international law.52 Accordingly, the requirement of
prosecution extends even to those states not party to the treaties.53 As a
result, alternative justice programs that do not require criminal prosecution
for the crimes of genocide and the “grave breaches” will not meet the
requirements of international law.54
The rule with regard to the other crimes under the ICC’s jurisdiction—
crimes against humanity and war crimes not falling under the grave
breaches provisions—is less clear.55 For these crimes, there is no generally
destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly.
Fourth Geneva Convention, supra note 48, art. 147. Article 146 requires that all states criminally
prosecute those who violate these “grave breaches” provisions. Id. art. 146. With regard to the duty to
prosecute for genocide, see the Genocide Convention, which provides: “The Contracting Parties
confirm that genocide, whether committed in time of peace or in time of war, is a crime under
international law which they undertake to prevent and to punish.” Genocide Convention, supra note
47, art. 1. See also M. CHERIF BASSIOUNI, POST-CONFLICT JUSTICE 259 (2002); THEODOR MERON,
HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 215–28 (1989); Ronald C. Slye,
The Legitimacy of Amnesties under International Law and General Principles of Anglo-American
Law: Is a Legitimate Amnesty Possible?, 43 VA. J. INT’L L. 173, 182–84 (2002).
50. The term jus cogens means “compelling law” or, similarly, peremptory norm. Bassiouni,
International Crimes, supra note 10, at 67. Jus cogens crimes represent a nonconsensual and non-
derogable source of international law. This category of crimes holds “the highest hierarchical position
among all other norms and principles” (Id.), and includes the crimes of aggression, genocide, crimes
against humanity, war crimes, piracy, slavery and slave-related practices, and torture. Id. at 63–72.
51. Obligatio erga omnes refer to the obligations and legal implications requisite upon states
toward the international community as a whole arising out of a crime’s designation as jus cogens. In
this sense, jus cogens and obligatio erga omnes “are often presented as two sides of the same coin.” Id.
at 72. “[C]haracterization of certain crimes as jus cogens places upon states the obligatio erga omnes
not to grant impunity to violators of such crimes.” Id. at 66. See also INTERNATIONAL CRIMINAL LAW:
CASES AND MATERIALS 504–05 (Edward M. Wise & Ellen S. Podgor eds., 2000); INTERNATIONAL
CRIMINAL LAW 40–46 (M. Cherif Bassiouni ed., 2d ed. 1999).
52. INTERNATIONAL CRIMINAL LAW, supra note 51, at 70; SADAT, THE INTERNATIONAL
CRIMINAL COURT, supra note 1, at 63.
53. Scharf, The Amnesty Exception, supra note 12, at 516; Orentlicher, supra note 46, at 2565,
citing Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
(Advisory Opinion), 1951 I.C.J. 15, at 23 (May 28); accord SADAT, THE INTERNATIONAL CRIMINAL
COURT, supra note 1, at 62–69; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES § 702 cmt. d (1987).
54. PROGRAM IN LAW AND PUBLIC AFFAIRS, PRINCETON PRINCIPLES ON UNIVERSAL
JURISDICTION (2001); Naomi Roht-Ariaza, Special Problems of a Duty to Prosecute: Derogation,
Amnesties, Statutes of Limitation and Superior Orders, in IMPUNITY AND HUMAN RIGHTS IN
INTERNATIONAL LAW AND PRACTICE 59–60 (Naomi Roht-Ariaza ed., 1995).
55. State practice in this area does measure up to what, in an ideal world, would be the requisite
standard of behavior. As Ronald Slye has stated, “[s]tate practice in the area, of course, does not live
up to this high expectation, although this may be due more to a failure of political will and the lack of
effective enforcement machinery at the international level than a belief that such prosecutions are not
required or desirable.” Slye, supra note 49, at 183.

binding treaty obligation and the state of customary international law is

controversial.56 While recent state practice appears to support a duty to
prosecute57 and the body of jurisprudence supporting this notion is
growing,58 at this point, the required legal response to these crimes
remains unclear.59 Thus, it is possible that amnesties may yet be a
legitimate response to these crimes.60
56. See Sadat, Universal Jurisdiction, supra note 3, at 202–04. Customary international law
constitutes one of the major sources of international law, as evidenced by its inclusion in article 38 of
the Statute of the International Court of Justice (ICJ). Statute of the International Court of Justice, as
annexed to the U.N. CHARTER, art. 38.
Generally, in order for a principle of law to crystallize into custom, there must be widespread state
practice and opinio juris, or a feeling of legal obligation with regard to the rule. IAN BROWNLIE,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5 (5th ed. 1998). Custom may be evidenced by
international and national judicial decisions, the practice of international organs, the work of the
International Law Commission, and resolutions passed regarding questions of law by the General
Assembly of the United Nations, the work of multilateral diplomatic conferences, and regional
organizations. Jonathan I. Charney, Universal International Law, 87 AM. J. INT’L L. 529, 543–44
(1993) (arguing no hierarchal order of evidentiary sources is implied by this list, nor should it be
considered exclusive.) Custom may crystallize over a long period of time, or it may be “instant,” as
was held in dictum by the ICJ in the North Sea Continental Shelf case. North Sea Continental Shelf
(F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 44 (Feb. 20).
57. For example, “international crimes” are not eligible for grants of amnesty by the Special
Court for Sierra Leone. The bilateral treaty (between the United Nations and Sierra Leone) provides
that the court will have jurisdiction over crimes against humanity, violations of common article 3 of
the Geneva Conventions, violations of Additional Protocol II of the Geneva Conventions and other
serious violations of international law under articles 2–4. Article 5 grants the court jurisdiction over
several crimes under the national criminal system of Sierra Leone, including crimes relating to abuse
of women and the wanton destruction of property. Amnesty is only available for the crimes under
article 5 as the Lomé Agreement provides that amnesty is not available for the international crimes of
articles 2–4. Micaela Frulli, The Special Court for Sierra Leone: Some Preliminary Comments, 11
EUR. J. INT’L L. 857, 859–69 (2000). See also Seventh Progress Report of the Secretary-General on
the UN Observer Mission in Sierra Leone, para. 7, U.N. Doc. S/1999/836 (1999) (holding that the
U.N. rejects the right of a state to immunize its nationals for the commission of serious violations of
international humanitarian law); Report of the Secretary General on the Establishment of a Special
Court for Sierra Leone, para. 22, U.N. Doc. S/2000/915 (2000) (stating that “the United Nations has
consistently maintained . . . that amnesty cannot be granted in respect of . . . serious violations of
international humanitarian law.”); Robinson, supra note 40, at 492 (noting that international crimes
were excluded from the community reconciliation process in East Timor).
58. See generally Velasquez Rodriguez Case, Case 7920, Inter-Am. C.H.R. (Series C) no. 4,
paras. 174, 186 (1988) (holding that Chile’s amnesty laws were in violation of Chile’s obligation to
prevent, investigate, and punish violations of the rights found in the Inter-American Convention on
Human Rights); Barrios Altos Case, Inter-Am. C.H.R. (Series C) no. 75, paras. 41–44; Inter-Am.
C.H.R., Report No. 24/92 (Argentina), Doc. 24 (1992), paras. 33–50; Inter-Am. C.H.R.,
OEA/L/V/11.85, Doc. 28 (El Salvador) (1994); In the Case of X and Y v. The Netherlands, 8 EUR.
H.R. REP. 235 (E.C.H.R. 1985) (holding that the Netherlands must adopt criminal law provisions as
criminal prosecutions are required in order to ensure that sexually-abused, mentally-handicapped
children are adequately protected); United Nations Human Rights Committee, General Comment, No.
20 (44) (art. 7), UN Doc. CCPR/C21/Rev.1/Add.3, para. 15 (1992).
59. Roman Boed believes that while there is opinio juris regarding the duty to prosecute, the
prerequisite condition of consistent state practice is lacking here. Roman Boed, The Effect of a
Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious
B. National Proceedings Are Ineffective in Precluding ICC Jurisdiction

When They Evidence Unwillingness or Inability to Bring the Accused
to Justice
The rule of complementarity does not foreclose ICC jurisdiction in

scenarios in which states are “unwilling or unable genuinely”61 to
prosecute. A national proceeding will be deemed ineffectual to preclude
ICC jurisdiction if the proceedings are undertaken with the intention of
shielding the accused from criminal responsibility.62 An “unjustified delay
. . . inconsistent with an intent to bring the person concerned to justice”63
may be exemplary of a state’s unwillingness to prosecute.64 The
prohibition on jurisdiction may also be overcome when the proceedings do
not meet international standards—i.e., they are not independent or
impartial.
Other states may no longer have the ability to properly carry out a
criminal prosecution due to war or other hardship. In these cases, the
Human Rights Violations, 33 CORNELL INT’L L.J. 297, 316–18 (2000). Accord Michael Scharf, The
Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights
Crimes, 59 LAW & CONTEMP. PROBS. 41, 57 (1996); Michael Scharf, Swapping Amnesty for Peace:
Was There a Duty to Prosecute International Crimes in Haiti?, 31 TEXAS INT’L L.J. 1, 36 (1996).
60. Sadat, Universal Jurisdiction, supra note 3, at 202–12. Cf. Roht-Ariazza, supra note 54, at
59–60; Dr. Kristin Henrard, The Viability of National Amnesties in View of the Increasing Recognition
of Individual Criminal Responsibility at International Law, 8 MSU-DCL J. INT’L L. 595, 595–96
(1999).
Article 6(5) of Protocol II relating to the Protection of Victims of Non-International Armed
Conflict is often relied upon by those who advocate amnesties in non-international armed conflicts.
Article 6(5) provides that “at the end of hostilities . . . authorities . . . shall endeavor to grant the
broadest possible amnesty to persons who have participated in the armed conflict.” Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, June 8, 1977, art. 6(5), 1125 U.N.T.S. 609, 614 [hereinafter
Protocol II].
The broad application of amnesty based on Protocol II was upheld by the South African Supreme
Court in the AZAPO Case, though this interpretation has been highly criticized. Azanian Peoples
Organization (AZAPO) v. President of the Republic of South Africa, 1996(4) SALR 671 (CC), at 691
(“. . . there is no obligation on the part of a contracting state to ensure the prosecution of those who
might have performed acts of violence or other acts which would ordinarily be characterized as serious
invasions of human rights.”). The AZAPO case is, in fact, a misapplication of Protocol II, as the
amnesties encouraged by the Geneva Conventions are those granted for “acts that violate national, but
not international, law. They permit a state to suspend accountability for actions that do not rise to the
level of an international law violation . . . in fact, they are designed and intended to further, rather than
thwart, human rights principles.” Slye, supra note 49, at 178.
61. Rome Statute, supra note 2, art. 17(1)(a).
62. Id. art. 17(2)(a).
63. Id. art. 17(2)(b). An unjustified delay will be determined by comparison to the usual
standards and practices of the state’s criminal justice system. Holmes, Complementarity, supra note 6,
at 667.
64. Rome Statute, supra note 2, art. 17(2)(b).

Court will consider whether “the State is unable to obtain the accused or
the necessary evidence and testimony or [is] otherwise unable to carry out
its proceedings.”65 Declaring a state “unable” may be an uncomfortable
proposition as it will require that the entire criminal justice system of the
state be put on trial.66
IV. WHEN WILL THE ICC REFUSE TO PROSECUTE?
In instances not including genocide or “grave breaches,” the ICC

Prosecutor has the option to defer to a national proceeding67 when it would
be in the interests of justice to do so. The “interests of justice” standard
implies broad discretion for the Prosecutor and leaves him to contemplate
the following considerations.
A. Arguments for Criminal Prosecution
“When we neither punish nor reproach evildoers, we are not simply

protecting their trivial old age, we are thereby ripping the foundations of
justice from beneath new generations.”68—Solzhenitsyn
In many instances, criminal prosecution is the most appropriate

response. While criminal justice is typically justified69 on the basis of
utilitarian70 or retributive theories,71 criminal prosecution may also provide
65. Id. art. 17(3).

66. Louise Arbour, Litigation Before the ICC: Not If and When, But How?, 40 COLUM. J.
TRANSNAT’L L. 1, 4–5 (2001).
67. The major alternatives to criminal prosecutions—the “national proceedings” in this sense—
are truth commissions and amnesty-granting programs. For a description of several important truth
commissions around the world, see Priscilla B. Hayner, Fifteen Truth Commissions—1974 to 1994: A
Comparative Study, 16 HUM. RTS. Q. 597 (1994). In the last twenty years, eleven Latin American
countries have employed amnesty-granting programs, in addition to South Africa and Cambodia.
Boed, supra note 59, at 298 (citing Douglass Cassel, Lessons from the Americas: Guidelines for
International Response to Amnesties for Atrocities, 59 LAW & CONTEMP. PROBS. 197, 200–01
(1996)); accord Scharf, Letter of the Law, supra note 59, at 41.
68. ALEKSANDR I. SOLZHENITSYN, THE GULAG ARCHIPELAGO 178 (Thomas Whitney trans.,
Harpe & Row 1974) (1918–1956), quoted in Orentlicher, supra note 46, at 2539.
69. Theories of criminal punishment include: prevention or intimidation, by which the aim is to
deter the criminal himself “by giving him an unpleasant experience he will not want to endure again”
(WAYNE R. LAFAVE, CRIMINAL LAW 23 (3d ed. 2000)); restraint or incapacitation, where criminal
prosecution is justified, so society may protect itself from dangerous persons, judged by their conduct
(id. at 24); rehabilitation (id. at 24); education, where a public trial is believed to educate the public “as
to the proper distinctions between good conduct and bad—distinctions which, when known, most of
society will observe” (id. at 25); and retribution (see infra note 71 and accompanying text).
70. Utilitarian theories justify criminal prosecution in terms of rehabilitation or incapacitation of
the offender. This theory regards criminal punishment as a sort of treatment that will rehabilitate the
criminal, thereby allowing him to return to and become a productive member of society. See Sadat,
deterrence by sending a message to future perpetrators that their crimes

will not go unpunished.72 Reconciliation can be facilitated through
criminal prosecutions73 as it tends to expose the extremists for what they
are—criminals—“thereby stigmatizing them, diminishing their influence,
and removing them from power and society.”74 Also, criminal prosecution
can individualize guilt by exposing a leadership group’s role in carrying
out the crimes,75 allowing the public separation from the crime.
Criminal prosecution may end cycles of revenge and vigilante justice
by ensuring that those who are most responsible for crimes receive their
just desserts.76 In this sense, it may provide moral satisfaction.77
Furthermore, while a state has the ability to forgive crimes against itself
(such as treason or sedition), crimes against individuals may deserve a
remedy as they can give significance to these individuals’ suffering.78
Criminal trials may strengthen the rule of law by reinforcing the basic
beliefs of a society and educating it in the proper workings of
democracy.79 They may “inspire societies that are reexamining their basic
values to affirm the fundamental principles of respect for the rule of law
and for the inherent dignity of individuals.”80 In doing so, they will not
only reinforce general respect for law, but also will strengthen the
legitimacy of the newly-installed democratic government by serving an
educational role.81 Those who advocate criminal prosecutions argue that
amnesties actually sabotage the educational demands of traditional
societies with regard to the rule of law because “a government that begins
its term by rejecting the rule of law and accountability undermines its own
claims to legitimacy.”82
Universal Jurisdiction, supra note 3, at 195; LAFAVE, supra note 69, at 24.
71. Retributive justice theories are based on a belief that a criminal is morally culpable and,
therefore, deserving of punishment. “This is the oldest theory of punishment, and the one which still
commands considerable respect from the general public.” LAFAVE, supra note 69, at 26.
72. Scharf, The Amnesty Exception, supra note 12, at 512.
73. Id.
74. Robinson, Amnesties, supra note 40, at 489.
75. Id.
76. Id. at 489–90.
77. Id.
79. Id.
80. Orentlicher, supra note 46, at 2542.
81. Chandra Lekha Sriram, Revolutions in Accountability: New Approaches to Past Abuses, 19
AM. U. INT’L L. REV. 301, 386 (2003).
82. Id. at 389.

B. Arguments for the Alternatives to Criminal Prosecution
“[T]he way a new civilian government chooses to deal with the crimes
of the former regime reflects the new government’s perception of its
strength.”83
On the other hand, a country in transition cannot simply ignore issues

of the present created by the conflicts of the past. Many of the arguments
against criminal prosecution stem from the grim realities faced by
countries struggling to overcome the legacies of brutal genocidal rule or
internal conflict. As Orentlicher noted, “. . . some of the fledgling
democracies have been presented with a Hobson’s choice between their
very survival and the principles upon which their existence was
founded.”84 Thus, states may be forced into a choice between upholding
fundamental governmental principles and values, or submitting to the
harsh reality of compromise.
A firm insistence on criminal prosecutions may prolong a conflict and
cause more pain and suffering to a country’s citizens.85 A promise of
amnesty to an abusive regime may soften the blow, as it were, of
relinquishing power. In contrast, regimes that face punishment in the
future may be less likely to walk away.86 Thus, the pressing need for peace
may require that amnesty be a bargaining chip available to those
negotiating for an end to conflict.87 Furthermore, the newly-installed
government may be threatened, as politically charged and controversial
trials may test it in ways for which it is not yet prepared.88 In these
situations, truth commissions89 and alternative justice programs, including
amnesty-granting programs,90 can offer some significant advantages.
83. Scharf, Swapping Amnesty, supra note 59, at 8.

86. Jon M. Van Dyke & Gerald W. Berkley, Redressing Human Rights Abuses, 20 DENV. J.
INT’L L. & POL’Y 243, 246 (1992); Diane F. Orentlicher, Judging Global Justice: Assessing the
International Criminal Court, 21 WIS. INT’L L.J. 495, 500 (2003).
87. See Chandra Lekha Sriram, Revolutions in Accountability, supra note 81, at 378–82.
88. Orentlicher, supra note 46, at 2544–45.
89. As Professor Leila Sadat has stated, “[t]he Rome Statute in no way impedes the
establishment of truth commissions, and it explicitly recognizes the rights of victims.” SADAT, THE
INTERNATIONAL CRIMINAL COURT, supra note 1, at 53.
90. While truth commissions have remembrance (by the creation of a record by which the
reconciliation of society may be facilitated) as one of their purposes, the purpose of amnesties is
forgetfulness or oblivion. SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 55 (citing
Fania Domb, Treatment of War Crimes in Peace Settlements—Prosecution or Amnesty?, 24 ISRAEL
Y.B. HUM. RTS. 253 (1994)). Indeed, the word is derived from the Greek amnestia, meaning
forgetfulness. SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, at 55. A further
First, they may allow the “greater context or root causes”91 of a conflict
to be discovered and made public as part of the healing of the group
psyche. Criminal trials may not suffice as mechanisms by which an
appropriate record of the conflict can be recorded and expounded. From
the victims’ perspective, a criminal prosecution may be an intimidating
arena. A “more welcoming forum”92 may not only make the victims more
comfortable and aid in their own individual healing process, but, because
more information (both in terms of reliability and quantity) is likely to be
obtained in such an environment, a more accurate record can be developed
with regard to the roots and causes of the turmoil and conflict.93
The practicalities of trial in a context of mass atrocities may also lead
to the conclusion that it makes more sense to attempt alternative justice
mechanisms. Some conflicts have seen thousands of perpetrators of
crimes, and to prosecute each and every individual would overload even
the most qualified and well-supported tribunals, let alone the criminal
justice system of a transitional state with few resources and little
funding.94 Furthermore, a more flexible approach may also deal more ably
with the varying levels of culpability amongst those who have committed
atrocities. Those who were merely carrying out orders or were at the lower
levels of authority may merit more lenient treatment.95 Alternative justice
systems may provide such flexibility while standard criminal prosecution
may not.
distinction between truth commissions and amnesties is that while truth commissions are often
individualized in procedural terms, amnesties are granted to broad groups of persons, often either to
dictators and military leaders as a condition of their having relinquished power, or to broad swaths of
society when the crimes do not rise to the level of genocide or “grave breaches” and the criminal
justice system is, due to their numbers or other circumstances, unable to cope. Id. at 56–57.
“[Amnesties] are thus practical, if somewhat unsatisfactory solutions to the problem of mass atrocities:
justice is traded for peace, or at least a temporary truce, in the hopes that the atrocities will stop and the
society will be able to move on.” Sadat, Universal Jurisdiction, supra note 3, at 196.
92. Id.
93. See Sriram, supra note 81, at 385–86.
95. Bassiouni, From Versailles to Rwanda, supra note 19, at 12. Since Nuremburg, superior
orders have not constituted a complete defense to international crime. Id. See also Rome Statute, supra
note 2, art. 33. “The fact that a crime within the jurisdiction of the Court has been committed by a
person pursuant to an order . . . shall not relieve that person of criminal responsibility unless:” (1) there
was a legal obligation to carry out the orders; (2) the person was unaware that the order was unlawful;
and (3), “the order was not manifestly unlawful.” Rome Statute, supra note 2, art. 33(1). The Rome
Statute makes clear that “orders to commit genocide or crimes against humanity are manifestly
unlawful.” Id. art. 33(2).

V. A FRAMEWORK FOR UNDERSTANDING WHEN THE ICC PROSECUTOR IS

LIKELY TO DETERMINE THAT PROSECUTION WOULD NOT BE IN THE
“INTERESTS OF JUSTICE”
Article 53 of the Rome Statute allows the ICC Prosecutor to defer to

national investigations “in the interests of justice.”96 While the issue of
how to deal with alternatives to criminal prosecutions—including national
amnesties, truth and reconciliation efforts, etc.—was raised in the ICC
negotiations, it was not explicitly dealt with in the Rome Statute.97 Instead,
the drafters at Rome “turned to the faithful and familiar friend of
diplomats, ambiguity. . . .”98 As a result, the guidelines must yet be
interpreted in order to develop any potential framework within which
alternative justice programs may be allowed to operate.
Two categories of alternative justice programs will be addressed
herein: responses based on alternative or restorative justice measures,
including truth commissions; and responses that include amnesties,
blanket or otherwise. With the treatment of these programs in the Rome
Statue clearly in mind, and aided by the above discussion of the
requirements of international law with regard to the crimes under the
Court’s jurisdiction, general rules that should guide the Prosecutor in
determining whether an investigation is in “the interests of justice” can be
described.
A. Does the ICC Foreclose Alternative Means of Dealing With Past

Regimes (Truth and Reconciliation Commissions, etc.) and/or the Use
of Amnesties?
“It is unrealistic to expect . . . leaders to agree to a peace settlement if,

directly following the agreement, they would find themselves or their close
associates facing life imprisonment.”99
The relationship between the ICC and alternative justice may appear, at
least at first glance, uneasy. Indeed, one commentator finds the ICC at
once “both morally impressive and legally a little frightening” because he
fears that “it could be misinterpreted, albeit incorrectly, as foreclosing the
use of truth commissions.”100 There were two sides of this debate at Rome:
96. Rome Statute, supra note 2, art. 53(c).

98. Id.
100. Charles Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted: Where the
those who believed prosecution to be the sole appropriate response and

those who believed that alternative mechanisms may be acceptable and
“had misgivings about laying down an iron rule for all time, mandating
prosecution as the only acceptable response in all situations.”101 Indeed,
the US delegation reportedly took this latter position at Rome, as it
circulated a “nonpaper” making just such a claim.102
If one looks at the “big picture,” the two options are not necessarily
mutually exclusive. Indeed, “[r]etributive justice, symbolized by the ICC,
and restorative justice, represented by truth commissions, ultimately have
similar goals and can benefit from each other.”103 With this in mind, it
becomes clearer that the ICC is intent not on confronting or eliminating
truth and reconciliation or amnesties, but merely upon ensuring that
serious international crimes are, in fact, punished.104 The Rome Statute’s
drafters understood that the use of these programs may, at times, be an
unfortunate necessity and that the argument, when “stripped to its essence
. . . is one of lesser evils.”105 Because of these considerations, the legal
regime established by the Rome Statute does not, in cases where the
jurisdictional requirements of the Court are otherwise met, foreclose the
use of amnesties and alternative justice mechanisms when they are in “the
interests of justice.”
B. The Guidelines: When Will the Prosecutor Determine that Prosecution

by the ICC is not in the “Interests of Justice”
“In deciding whether a necessity exception might apply, one should

consider the balance between the extent of the departure from full
prosecution, i.e., the quality of the measures taken, and the severity of the
factors necessitating a deviation.”106
International Criminal Court and Truth Commissions Meet, 49 EMORY L.J. 205, 205 (2000).
102. Ruth Wedgwood, The International Criminal Court: An American View, 10 EUR. J. INT’L L.
93, 96 [hereinafter Wedgwood, An American View]; Scharf, The Amnesty Exception, supra note 12, at
508; Scharf, The Letter of the Law, supra note 59, at 41–42. The paper is said to have suggested that “a
responsible decision by a democratic regime to allow an amnesty was relevant in judging the
admissibility of a case.” Wedgwood, An American View, supra, at 96.
103. Villa-Vicencio, supra note 100, at 217–18. Indeed, as Darryl Robinson has pointed out, there
is “no inherent hostility or contradiction” between the ICC and truth and reconciliation efforts “per
se.” Robinson, Amnesties, supra note 40, at 484.
104. Id.
106. Robinson, Amnesties, supra note 40, at 497 (emphasis added).

A few guidelines with regard to the application of amnesties and

alternative justice mechanisms must be established in order to effectively
predict their likely treatment by the ICC. What follows is a general outline
of how these situations will likely be resolved by the Prosecutor.
1. Complementarity
The determination to prosecute is controlled by whether the ICC can

have jurisdiction over the events and parties in question. As mentioned,
the ICC will not have jurisdiction unless a state that would otherwise have
jurisdiction is unwilling or unable genuinely to prosecute.107
Unwillingness is exemplified by proceedings that show evidence of an
intent to shield,108 unjustified delay109 (shown through comparison to
domestic standards110), or through derogation from international norms of
due process.111 Inability is shown by putting the entire criminal justice
system of the domestic state “on trial.”112
If the complementarity regime is not satisfied, then the ICC will not be
able to take jurisdiction over the particular crimes. It is only in cases where
complementarity is satisfied that the prosecutorial deferral is available.
2. Prosecutorial Deferrals
In determining when it would be in the interests of justice for the ICC

to defer to a national proceeding, the Court should first look to the nature
of the crime. If the crime represents jus cogens, there may be a treaty
obligation or an obligatio erga omnes on the part of the state involved to
prosecute.113 This obligation to prosecute criminally would render
amnesties and alternative justice mechanisms not amounting to criminal

108. Id. art. 17(2)(a) (“. . . the Court shall consider, having regard to the principles of due process
recognized by international law, whether . . . [t]he proceedings were or are being undertaken or the
national decision was made for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court.”)
109. Id. art. 17(2)(b) (“. . . the Court shall consider, having regard to the principles of due process
recognized by international law, whether . . . [t]here has been an unjustified delay in the proceedings
which in the circumstances is inconsistent with an intent to bring the person concerned to justice.”).
110. Holmes, Complementarity, supra note 6, at 669–70.
111. Rome Statute, supra note 2, art. 17(2)(c) (“. . . the Court shall consider, having regard to the
principles of due process recognized by international law, whether . . . the proceedings were not or are
not being conducted independently or impartially, and they were or are being conducted in a manner
which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”).
112. Louise Arbour, Litigation Before the ICC, supra note 66, at 4.
113. See supra notes 50, 51, 52 and accompanying text and citations.
prosecution illegitimate and insufficient to satisfy the demands of

international law.114
Second, the Court should look to the particular response. Overall, any
amnesty or alternative justice mechanism must be part of an overall
scheme to rehabilitate and aid in a troubled country’s transition—it must
be, in fact, part of a scheme to break with the past regime.115 Thus, self-
dealing on the part of the past-regime will not, in the eyes of the
Prosecutor, merit a deferral. The voices of the victims must be heard116
and the opposition to the program must be given the opportunity to
question its legitimacy.117 This will help to create the social consensus
necessary to ensure that these programs are successful. Indeed, in order to
be in the “interests of justice,” any alternative mechanism or amnesty must
be convincingly accepted by the populace,118 and the decision not to
criminally prosecute must be part of a program that genuinely penetrates
the society in terms of its genesis, application, and acceptance. Further,
those granted amnesty must be members of strictly defined categories119
and the proceedings of these programs should be regularized and carefully
conducted in order to create a record sufficient to teach a historical lesson
that will help avoid future conflict.120
Dealing specifically with amnesties, if the response is a blanket,
general amnesty, the Prosecutor will almost certainly not defer. Amnesty
should be a “bargaining tool of last resort”121 and not the means by which
the former regime can buy its freedom wholesale. If the response is a
partial amnesty, the default rule must still be considered: perpetrators,
especially those most responsible, must be prosecuted, except in cases of
severe necessity, by standard criminal processes. Thus, the “quality” of the
amnesty program should be examined and targeted amnesty-granting
programs should be considered carefully and with a healthy amount of
skepticism.
It is important to determine whether the amnesty will serve the security
and social-rehabilitation requirements of the transitional society. A crucial
indicator of whether the amnesty was granted with the proper purposes in
114. Note that these obligations apply only to states; the prosecutor of the ICC is not limited by
these principles, and his choice is restrained only by the principle of prosecutorial discretion.
115. See Gwen K. Young, All the Truth and as Much Justice as Possible, 9 U.C. DAVIS J. INT’L L.
& POL’Y 209, 212–16 (2003).
116. Villa-Vicencio, supra note 100, at 209.
117. Slye, supra note 49, at 245.
118. Villa-Vicencio, supra note 100, at 216.
119. Slye, supra note 49, at 241.
120. Id.

mind is the identities of the parties responsible for the amnesty. If amnesty
was granted under an internationally negotiated agreement, in which
parties from the former regime, representatives from the newly-installed
government, and international officials and observers participated, then it
can likely be presumed that the amnesty was not given illegitimately. The
presence of representation of the transitional regime at these
negotiations—especially if democratically elected—is particularly credible
evidence that the amnesty should be respected.
Under the same logic, programs of self-amnesty by a former regime
will generally not qualify. This is particularly so in cases where the
military was a main perpetrator. Amnesties should, under no
circumstances, be given to the military in order simply to relieve the
potentially great pressure that the armed forces can bring to bear. Despite
the danger to the transitional government, the harmful effects of impunity
are compounded in situations where groups formerly in power are able to
negotiate impunity for crimes they have committed. In these situations, the
argument that amnesties are simply a kind of forced amnesia and not a tool
for social rehabilitation is particularly prescient. Amnesty must be
regarded as independent from gross manipulation in order for its intended
benefits to be realized.122
If, on the other hand, the response is a truth and reconciliation
committee or other alternative justice system, it should be analyzed with
similar factors in mind. Were high-level perpetrators prosecuted, except in
cases of severe necessity, by standard criminal processes? If not, was the
deviation justified? Factors to examine in these cases include the state’s
resources and ability to prosecute the crimes, the populace’s acceptance
and ratification of the alternative system, the number of victims to be
prosecuted, and the effectiveness of alternative mechanisms in providing
benefits to the victims and in creating a legitimate historical record.
VI. FOUR ILLUSTRATIVE SCENARIOS
The following fact patterns will help illustrate some of the concepts
just discussed. In each, assume that all states described are states party to
the Rome Statute and that the operative facts took place on the territory of
a state party to the Rome Statute. Thus, the ICC would be able to exercise
jurisdiction if it so chose in each of these situations, if not for
considerations presented herein.
A. Scenario One: ICC Jurisdiction is Clearly Precluded
A soldier serving in a state party to the Rome Statute is leading a

peacekeeping platoon. The platoon is attacked by rebel forces. In
retaliation, the soldier orders an attack on a local village and commits a
crime akin to the My Lai massacre.123 The soldier’s government
immediately investigates and tries the soldier through its regular military
processes. The soldier is convicted of war crimes in accordance with
military code, is court-martialed, and is sentenced to a significant prison
term.
The jurisdiction of the ICC would be precluded by the principle of
complementarity in this scenario. The response was immediate, the
perpetrator was tried through regular processes, and, appears to have
received appropriate punishment. Importantly, there is no indication of an
unwillingness or inability to try the perpetrator.
B. Scenario Two—The ICC Prosecutor May Defer to the National

Process
A Southeast-Asian country was racked by a bloody civil war in which

leaders of the warring sides ordered crimes constituting genocide and
ethnic cleansing. Both sides participated in the attacks. As part of the
peace agreement, an internationally-sponsored and Security Council-
created tribunal was created to try those most responsible for the atrocities
in the country. Unfortunately, the international tribunal has been bogged
down by the effort and very few prosecutions were completed.
In response, the country’s leadership allowed for traditional tribal
tribunals to take up much of the burden of prosecuting lower and middle-
level perpetrators.124 However, these traditional tribunals have failed to
meet due process obligations under the International Covenant for Civil
and Political Rights.125 In spite of this, the government has continued to
refer many of the genocide-related crimes to them.
123. For a detailed description of the My Lai Incident, see I REPORT OF THE DEPARTMENT OF THE
ARMY REVIEW OF THE PRELIMINARY INVESTIGATIONS INTO THE MY LAI INCIDENT (1970).
124. L. Danielle Tully, Human Rights Compliance and the Gacaca Jurisdictions in Rwanda, 26
B.C. INT’L & COMP. L. REV. 385 (2003); Sadat, Universal Jurisdiction, supra note 3, at 8. This
hypothetical is based upon the Gacaca tribunals in Rwanda. The Gacaca system is made up of
nineteen-member lay tribunals that, though traditionally designed only to hear property and marital
disputes, may hear many of the crimes under Rwanda’s Genocide Law.
125. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR,
21st Sess., Supp. No 16, at 52, U.N. Doc. A/6316 (1966).

These tribal judicial processes would likely be accepted by the

Prosecutor as legitimate responses to some crimes within the jurisdiction
of the Court. In this situation, it is first necessary to ask whether the
proceedings in the tribal courts constitute a criminal prosecution. If these
tribunals are not (or are incapable of) conducting criminal prosecutions,
genocide, for example, would not be a crime that the tribunals could
legitimately try.126 A second major concern would be the due process
rights of the accused, as it can be argued in this situation they would not
be adequately protected.
Despite these concerns, however, the tribal program seems to promote
the interests of justice. The program has popular support, indicating that
these processes may promote reconciliation through trying of those
culpable. The tribal processes may also meet the very real concern of a
system becoming bogged down by the high number of trials that must be
conducted. Third, and most importantly, this process does not appear to
lend itself to the perception that it is influenced by illegitimate pressure—
whether exerted by the military or other sources.
C. Scenario Three: Prosecutorial Deferral is Unlikely
A European country was under the control of a particularly brutal and

oppressive authoritarian regime, whose main instrument of coercion, the
“disappearance,” resulted in the abduction of tens of thousands of
civilians. After decades, the regime was finally brought down and the
perpetrators are now being punished. Thus far, a few regime members and
officers were charged for their role in the disappearances; however, in
response to military uprisings, junior and mid-level officers as a class were
amnestied. The process has taken years, and public support, which was
lukewarm initially, is now described by observers as declining.
In this scenario, the main concern is with regard to the grant of amnesty
as a class to members of the military. While it appears that the upper level
military leaders remain open to prosecution, the amnesty will surely be
considered a result of the military’s great influence. Such an exercise of
influence will likely poison the reconciliation process and popular support
based on a perception of legitimacy is certain to be lacking. Under these
circumstances, it seems likely that the Prosecutor would not defer to these
proceedings and the ICC would assume jurisdiction.
126. See supra notes 46–60 and accompanying text.
D. Scenario Four: The ICC Would Clearly Step In
A particularly brutal minority government was in power in a small

island nation and is eventually met with a campaign by the majority not
only to eliminate the minority leadership, but to wipe out the minority
presence in the country altogether. Widespread crimes against humanity
and attempts at genocide are committed throughout an entire decade. An
internationally-sponsored peace agreement comes into force that allows
the country, now controlled by the majority ethnic group, to prosecute the
crimes committed as part of the conflict and to grant a blanket amnesty to
the majority. Charges were brought only against the lower-level
perpetrators in a specially-created court and were characterized by
apparent ineptitude and corruption. The proceedings were, in general,
riddled with irregularities and the court purported to have the authority to
amnesty even those crimes that took place outside its territory, so long as
they had anything to do with the overall conflict.
Here, the ICC would clearly retain jurisdiction. First, it is questionable
whether the principle of complementarity would preclude ICC jurisdiction
in response to such proceedings. There appears to have been inept
prosecution in a non-standard format compared to that typical of the
country. As a result, the proceedings may represent an intent to shield the
accused from justice. Second, treaty and customary law obligations appear
to have been breached by the wholesale amnesty granted to the majority.
As noted, there is a legal obligation to try criminally the crime of genocide
and a developing legal obligation to try many of the crimes under the
court’s jurisdiction. In such a case, an insistence on non-criminal
prosecution may also represent an indication of unwillingness to try the
perpetrators genuinely. Thus, the principle of complementarity is probably
not satisfied.
Furthermore, these proceedings would not lead the Prosecutor to defer
in the interests of justice in any case. The amnesty was blanket, which
presumably would not be looked upon favorably. Those that were tried
were not those most culpable, but were a class of lower-level perpetrators.
Thus, the reconciliation process will be hindered as those most responsible
for the crimes will be perceived to have been given preferential treatment
and, as a result, have retained their liberty. In such a situation, one could
easily state that “[t]his is not amnesty; it is forcible amnesia.”127
127. Scharf, Swapping Amnesty for Peace, supra note 59, at 2, accord Report of the Secretary
General on the Establishment of a Special Court for Sierra Leone, para. 22, U.N. Doc. S/2000/915
(2000).

VII. CONCLUSION
The ICC represents a “revolution”128 in international criminal law and,

appropriately, was created at the beginning of a “new millennium”129 in
order to address the injustices that in past centuries had gone unpunished.
Its structure represents the competing interests of states in retaining their
sovereign rights while respecting the human rights of individuals
worldwide. The result is a Court that embodies the hope that states will
fulfill their obligations and try those most responsible for the most serious
international crimes while, at the same time, preparing for those instances
when states will fail to live up to this responsibility.
The prosecutorial deferral and complementarity regimes are designed
to allow the ICC to achieve this goal. Through somewhat ambiguous
provisions, the drafters of the Rome Statute left the court with a great deal
of flexibility to determine when it should refuse to exercise jurisdiction.
This ambiguity may leave some uncomfortable, but it is absolutely
necessary to provide the ICC Prosecutor with the tools he needs to ensure
that justice appropriately tailored to the particular situation is done.
The application of these mechanisms likely will evolve over time.
However, taken in the context of the growing international humanitarian
law obligation to prosecute criminally in certain circumstances, and in
light of the object and purpose of the ICC, the international community
should consider itself well-served by this new, prudently designed
adjudicatory mechanism. It is a Court that, while respecting traditional
notions of sovereignty, strikes a compromise allowing it to reach beyond
the obstacles that have historically frustrated international legal
enforcement. As a result, it is a major advance in the fight to ensure that
the victims of international crimes receive the redress they so richly
deserve.
Thomas Hethe Clark*
128. Sadat & Carden, An Uneasy Revolution, supra note 21, at 381.
129. SADAT, THE INTERNATIONAL CRIMINAL COURT, supra note 1, title.
* B.A. (2002), Duke University; J.D. Candidate (2005), Washington University School of Law.
Many thanks go to: Professors Leila Nadya Sadat and John O. Haley for guidance and mentoring; the
editors and staff of Washington University Global Studies Law Review for their dedicated and
excellent work; and my wife, Katie, and son, Hayden, for their love and patience.

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Washington University Global Studies Law Review

The Prosecutor of the International Criminal Court, Amnesties,

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The International Criminal Court (ICC) represents a “quantum-leap”1

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2005] STRIKING A DELICATE BALANCE 391

would otherwise appear to be an obligation on the ICC to prosecute

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to prosecute; whether there is a legal obligation to prosecute; and whether

A. Brief History of the ICC

The historical roots of the ICC can be traced to 1899,18 though no

2005] STRIKING A DELICATE BALANCE 393

Century in the development of international law in general, and the

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B. Limits on the ICC’s Jurisdiction

The ICC’s jurisdiction is limited to “the most serious crimes of concern

2005] STRIKING A DELICATE BALANCE 395

jurisdiction over these crimes is non-retroactive31 and, thus, crimes

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investigation by the prosecutor, ex proprio motu.36

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discretion,42 though his43 decisions to defer are reviewable by the Court’s

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A. In Some Instances, Criminal Prosecution May Be the Only Legal

Criminal prosecution is required for some of the crimes within the

2005] STRIKING A DELICATE BALANCE 399

cogens status as an international crime,50 creating obligatio erga omnes,51

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binding treaty obligation and the state of customary international law is

2005] STRIKING A DELICATE BALANCE 401

B. National Proceedings Are Ineffective in Precluding ICC Jurisdiction

The rule of complementarity does not foreclose ICC jurisdiction in

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IV. WHEN WILL THE ICC REFUSE TO PROSECUTE?

In instances not including genocide or “grave breaches,” the ICC

A. Arguments for Criminal Prosecution

“When we neither punish nor reproach evildoers, we are not simply

In many instances, criminal prosecution is the most appropriate

65. Id. art. 17(3).

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deterrence by sending a message to future perpetrators that their crimes

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B. Arguments for the Alternatives to Criminal Prosecution

On the other hand, a country in transition cannot simply ignore issues

83. Scharf, Swapping Amnesty, supra note 59, at 8.

2005] STRIKING A DELICATE BALANCE 405

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V. A FRAMEWORK FOR UNDERSTANDING WHEN THE ICC PROSECUTOR IS

Article 53 of the Rome Statute allows the ICC Prosecutor to defer to

A. Does the ICC Foreclose Alternative Means of Dealing With Past