National Reconciliation, Transnational Justice, and the International Criminal Court

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.

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