Truth Commission Amnesties and the International Criminal Court

Abstract

Truth commissions and the new International Criminal Court (ICC) appear to be very different mechanisms for dealing with human rights abuses: the primary purpose of a truth commission is to compile an accurate record of what happened, whereas the ICC is designed to punish individual perpetrators. This article considers how these two institutions will interact, and, more specifically, how the ICC Prosecutor will deal with perpetrators who have been granted amnesties by a truth commission in return for divulging their crimes. The ICC Statute, which contains the powers of the Court and the Prosecutor, fails to provide the ICC Prosecutor with any clear guidance on this question. On one interpretation it supports a prosecutorial policy that completely ignores amnesties, but on another, it supports the Prosecutor who decides to work cooperatively with those truth commissions that are able to demonstrate their legitimacy. Under a cooperative approach the Prosecutor would delay bringing any prosecutions until a truth commission has completed its work and then prosecute individuals from the pool who had not been granted amnesties. Such an approach could bolster the legitimacy of the ICC, by providing a principled basis for the exercise of prosecutorial discretion, and assist truth commissions, by encouraging more perpetrators of serious crimes to apply for amnesties, and, in the process, divulge their secrets.

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