Journal of International Criminal Justice Advance Access originally published online on May 26, 2005
Journal of International Criminal Justice 2005 3(3):695-720; doi:10.1093/jicj/mqi046
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Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court
* LL.M. (NYU), LL.M. (Cologne-Paris 1); Associate Legal Adviser, International Criminal Court. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the ICC.
The question to what extent amnesties and pardons may bar criminal investigations or prosecutions under the Statute of the International Criminal Court (the Statute) has been left unresolved by the Rome process. This essay seeks to develop some general guidelines that may help the Court to address this problem, should it arise in a specific case. It suggests four basic principles to deal with the issue of amnesties and pardons: (i) the Court has interpretative autonomy to decide whether an amnesty or a pardon is permissible under the Statute; (ii) exemptions from criminal responsibility for the core crimes within the jurisdiction of the Court by amnesties or pardons should generally be considered incompatible with the Statute; (iii) prosecution by states and by the Court may be limited to the most serious crimes and the most responsible perpetrators (targeted prosecution); (iv) amnesties or pardons should, if it all, only be permitted in exceptional cases, namely where they are conditional and accompanied by alternative forms of justice.
1 See generally D. Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’, 14 European Journal of International Law (2003) 481 ff.; M.P. Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’, 32 Cornell International Law Journal (1999) 507 ff.; M. Arsanjani, ‘The International Criminal Court and National Amnesty Laws’, ASIL Proceedings (1999) 65 ff.; J. Gavron, ‘Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court’, 51 International and Comparative Law Quarterly (2002) 91 ff.; A. Seibert-Fohr, ‘The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions’, 7 Max Planck Yearbook of United Nations Law (2003) 553 ff.; M. El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’, 23 Michigan Journal of International Law (2002) 869 ff., at 940–951. See also generally B. Chigara, Amnesty in International Law: the Legality under International Law of National Amnesty Laws (Harlow: Longman, 2002).
2 See also more generally ICC, Office the Prosecutor, ‘Informal Expert Paper: The Principle of Complementarity in Practice’ (2003), available online at http://www.icc-cpi.int (homepage) (visited 10 February 2005).
3 Black's Law Dictionary defines amnesty as ‘the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted’. See Black's Law Dictionary, 7th edn (St Paul, MN: West Group, 1999), 83.
4 A pardon is usually an action that mitigates or sets aside punishment for a crime after a conviction. Black's Law Dictionary defines it as an ‘act or an instance of officially nullifying punishment or other legal consequences of a crime’ (ibid., at 1137).
6 See also Robinson, supra note 1, at 488.
7 See Art. 53(3)(b) and Rule 110(2) (‘When the Pre-Trial Chamber does not confirm the decision by the Prosecutor ... , he or she shall proceed with the investigation or prosecution’).
10 See also Gavron, supra note 1, at 109.
11 The exemption of US peacekeepers from the jurisdiction of the ICC by SC Res. 1422 and 1487 was at the borderline in this regard. But even this policy has now found a preliminary end due. On 23 June 2004, the United States withdrew its request at the UN Security Council to renew Res. 1487. Resolution 1487 expired on 30 June 2004. See, however, 
6 of SC Res. 1593 (2005), 31 March 2005.
12 It should be emphasized that such a deferral would stand in contradiction to the general principles of the UN in relation to amnesties concerning genocide, crimes against humanity and war crimes. In 1999, the Secretary-General appended a disclaimer to the blanket amnesty clause (‘absolute and free pardon’) contained in the Lomé Peace Agreement, stating that the amnesty ‘shall not apply to the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’. See Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN doc. S/2000/915, 4 October 2000, 23. In his report on the establishment of the Special Court for Sierra Leone, the Secretary-General added that ‘amnesty is considered to be an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict’, but ‘cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law’. See Report of 4 October 2000, 22. A similar principle was later applied by the United Nations in East Timor, where the UN Transitional Administration excluded immunity from prosecution for serious crimes. See Sections 23.3 and 27.6 of UNTAET Regulation No. 10/2001 of 13 July 2001. Earlier this year, the UN Secretary-General went even a step further, by recommending a general non-recognition policy by the United Nations. See Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, UN doc. S/2004/616, 3 August 2004, 64.
13 See also the suggestions made by Robinson, supra note 1, at 483–484.
14 See also the parallel reasoning by the Special Court for Sierra Leone, Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Case No. SCSL-2004–15-PT and Case No. SCSL-2004–16-PT, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, at 82. For a discussion, see A. Cassese, ‘The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty’, 2 Journal of International Criminal Justice (JICJ) (2004) 1130 ff.
15 See also J. Frowein and N. Krisch, ‘On Article 39’, in B. Simma (ed.), The Charter of the United Nations (Oxford–New York: OUP, 2002), at 719, 4.
16 The ICTY Appeals Chamber found in Tadi
that the Tribunal was empowered to review the resolution establishing the ICTY (SC Res. 827). See Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadi (IT-94–1-AR71), Appeals Chamber, 2 October 1995, 28.
17 Concurring W.A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2004), 84; M. 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 Vanderbilt Journal of Transnational Law (2002) 1503 ff., at 1515–1516. For a discussion of Res. 1422 and 1497, see S. Zappalà, ‘Are Some Peacekeepers Better Than Others? UN Security Council Resolution 1497 (2003) and the ICC’, 1 JICJ (2003), at 671–678; C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’ (2002), 14 European Journal of International Law (2003) 85 ff.
18 Concurring Scharf, supra note 1, at 524; K. van der Voort and M. Zwanenburg, ‘Amnesty and the Implementation of the ICC’, in R. Haveman, O. Kavran and J. Nicholls (eds), Supranational Criminal Law: A System Sui Generis (Antwerpen: Intersentia, 2003), 324.
19 See Art. 4(1) of the Rome Statute. Note that the duty to comply with Chapter VII decisions of the Security Council under Arts 48(2) and 103 of the UN Charter is formally addressed only to ‘Members of the United Nations’.
20 See most recently, D. Orentlicher, Amicus Curiae Brief Concerning the Amnesty Provided by the Lomé Accord in the case of the Prosecutor v. Morris Kallon, SCSL-2003–07 (‘To the extent that the amnesty encompasses crimes against humanity, serious war crimes, torture and other gross violations of human rights, its legal validity is highly doubtful and in any event contravened the United Nations's commitment to combating impunity for atrocious crimes’). See also M.T. Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses’, 23 Human Rights Quarterly (2001) 940 ff., at 956.
21 See Princeton Principles on Universal Jurisdiction (2001), available online at http://www.umn.edu/humanrts/instree/princeton.html (visited 10 February 2005).
22 See Commission on Human Rights, Res. 2002/79 on Impunity, 2.
23 See 6 of the Preamble of the Rome Statute.
24 The Genocide Convention provides an absolute obligation to prosecute persons responsible for genocide, whether they are constitutionally responsible rulers, public officials or private individuals (see Art. 4). Article 7 of the Torture Convention provides a duty to prosecute. The treaty body created by the Convention, the Committee against Torture, emphasized that even before the entry into force of the Convention against Torture, there was a general rule of international obliging all states to take effective measures to prevent torture and to punish acts of torture. See also, more recently, the Report of the Committee against Torture, UN doc. A/55/44 (2000), 61(d) (‘[a]mnesty laws should exclude torture from their reach’). Human rights treaties do not contain explicit duties to prosecute international crimes. But some of the rights enshrined in human rights conventions have been interpreted so as to require states to take affirmative action to prevent, investigate and punish serious human violations. Both the case law under the American Convention on Human Rights and the International Covenant on Civil and Political Rights strengthen the argument that blanket amnesties are incompatible with treaty-based human rights law. See Inter-American Court of Human Rights, Velasquez v. Honduras, Judgment of 29 July 1988, Ser. C, No. 4 (1988), 174; Barrios Altos case, Judgment of 14 March 2001, Series C, No. 75, 41–44 and 53. See also Human Rights Committee, General Comment No. 20 (Article 7) of April 1992, UN doc. CCPR/C21/Rev.1/Add.3, 15; Concluding Observations of the Human Rights Committee: Chile, 65th Sess. CCPR/C/79/Add.104, 30 March 1999, p. 7.
25 State practice reflects a growing trend towards the prohibition or non-recognition of amnesties for international crimes. There is an increasing ban of amnesties under domestic law. Article 23 of the Constitution of Ecuador provides that amnesty may not be granted for genocide, torture, forced disappearance, hostage-taking and politically motivated murder. In November 2001, the Argentinean Federal Court of Appeals declared the Due Obedience (ley de obdedienca debida) and Full Stop Laws (ley de punto final) unconstitutional and void, which obstructed the investigation of serious crimes in Argentina. See Federal Court of Appeals of the City of Buenos Aires, Case No. 17.889 (Simon Julio), Judgment of 9 November 2001. Similarly, the Supreme Court of Justice of Honduras found that granting amnesty to military personnel charged with human rights violations is unconstitutional. See Honduran Supreme Court, Amparo en Revisión, Case 58–96 of 18 January 1996 and petition for declaration of unconstitutionality, No. 20–99, decision of 27 June 2000. The same approach was taken in Macedonia. The amnesty granted to Albanian fighters excluded war crimes, crimes against humanity, torture and other serious violations of international humanitarian law. Secondly, there is growing support for the claim that third states are not bound to respect amnesties or pardons concerning the core crimes of the Statute. Several countries have enacted legislation allowing them to try war crimes perpetrators under the principle of universality (e.g. Canada, Germany, New Zealand, South Africa, Australia). See generally J.K. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive Criminal Law’, 1 JICJ (2003) 86, at 107. Furthermore, some courts have held that amnesties clauses have no extraterritorial effect. For example, Spanish Courts have ruled that Argentina's amnesty is not binding on Spain. See, e.g. Fortunata Galtieri Case, Judgment of March 1997. See also the distinction made by A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 315 (‘There is not yet any general obligation for States to refrain from enacting amnesty laws for these crimes. Consequently, if a State passes any such law, it does not breach a customary rule. Nonetheless, if the courts of another State having in custody persons accused of international crimes decide to prosecute them although in their national State they would benefit from an amnesty law, such courts would not thereby act contrary to general international law, in particular to the principle of respect for the sovereignty of other States’). See also Special Court for Sierra Leone, Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decision of 13 March 2004, 82, supra note 14.
26 The ICJ found that the principles underlying the Genocide Convention ‘are recognized by civilized nations as binding on States, even without any conventional obligation’. See ICJ, Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, 28 May 1951, ICJ Rep. 1951, 15, at 34. A case can therefore be made that customary law requires all territorial states — even those who are not parties to the Genocide Convention — to punish persons who commit genocide. See also the Restatement (Third) of the Foreign Relations Law of the United States, which provides that ‘[a] state violates customary law if it practices or encourages genocide, fails to make genocide a crime or to punish persons guilty of it, or otherwise condones genocide’.
27 See Art. 50 of Geneva I, Art. 51 of Geneva II, Art. 130 of Geneva III and Art. 147 of Geneva IV. See also Cassese, supra note 25, at 314.
28 See also Seibert-Fohr, supra note 1, at 573.
29 See 5 of the Preamble of the Rome Statute.
30 See Inter-American Court of Human Rights, Barrios Altos case, Judgment of 14 March 2001, 53, supra note 24 (‘[s]tates parties to the Convention who adopt ... self-amnesty laws, are in breach of Articles 8 and 25 of the Convention. Self-amnesty laws leave victims defenceless and perpetuate impunity and are therefore clearly incompatible with the letter and spirit of the American Convention’); See also the comments of the Human Rights Committee on the Report submitted by Peru of 25 July 1996, UN doc. CCPR/79/Add.67, 9 (‘The Committee is deeply concerned that the amnesty granted by Decree Law 26.379 on 14 June 1995 absolved from criminal responsibility and, as a consequence from all forms of accountability, all military, police and civilian agents of the State who are accused, investigated, charged, processed or convicted for common and military crimes for acts occasioned by the "war against terrorism" from May 1980 until June 1995’). The ICTY concluded that the jus cogens nature of the prohibition of torture precludes international recognition of amnesties with respect to torture, and consequently allowed prosecution by the ICTY. See Judgment, Furund
ija (IT-95–17/1-T), Trial Chamber II, 10 December 1998, 155.
31 See W.A. Schabas, ‘Penalties’, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court, Vol. 2 (Oxford: Oxford University Press, 2002) 1497, at 1521–1528.
32 See ICTR, Sentence, Prosecutor v. Serushago (ICTR-98–39-S), Trial Chamber, 5 February 1999, 38.
33 Note that Rule 145(2)(a) recognizes ‘the convicted person's conduct after the act’ as a mitigating circumstance.
34 Note that the list of mitigating factors enumerated in Rule 145(2) is not exhaustive (‘such as’).
35 The Appeals Chamber of the Special Court for Sierra Leone adopted this principle expressly in its decision in the case of Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decision of 13 March 2004, supra note 14. The Chamber noted that ‘[e]ven if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity’. See 84 of the Decision.
36 See, on this concept, H.P. Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese, Gaeta and Jones (eds), supra note 31, Vol. I, 583 ff., at 595.
37 See 4 of the Preamble of the Statute: ‘... affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’. See also Art. 17(1)–(3) of the Statute and the proprio motu powers of the Prosecutor under Art. 15. This commitment cannot be simply revoked by a State for reasons of political opportunity. This is reflected in Art. 127(2) which states that even a withdrawal of the Statute ‘shall not affect any cooperation with the Court in connection with criminal investigations and prosecutions in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the day on which the withdrawal became effective’.
38 See Art. 12(2)(b). Note that even non-States Parties may make a declaration of acceptance of jurisdiction under Art. 12(3).
39 For a similar concept in the context of the automatic succession into human rights treaties, see Human Rights Committee, General Comment No. 26, UN doc. A/53/40, Annex, 4.
40 See Art. C of the Treaty on the European Union.
41 See Art. 17 of the UN Declaration on the Protection of all Persons from Enforced Disappearance.
42 Art. 18 of the UN Declaration on the Protection of all Persons from Enforced Disappearance goes even a step further. It states: ‘Persons who have or are alleged to have committed [acts of enforced disappearance] shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction.’
43 See also Cassese, supra note 25, at 316.
44 Some authorities argue that there is a customary duty of the territorial state and the state of nationality of the accused to prosecute crimes against humanity. See C. Kress, ‘War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’, 30 Israel Yearbook on Human Rights (2001) 103 ff., at 163; Robinson, supra note 1, at 491. See also more generally J. Dugard, ‘Dealing with Crimes of a Past Regime: Is Amnesty still an Option?’, 12 Leiden Journal of International Law (1999) 1004.
45 Customary law appears to indicate that governments may discharge their obligations under international by prosecuting ‘those who were most responsible for designing and implementing a system of human rights atrocities or for especially notorious crimes that were emblematic of past violations ... provided the criteria used to select potential defendants did not appear to condone or tolerate past abuses’. See D. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100 Yale Law Journal (1991) 2537 ff., at 2599.
46 Article 17(1) contains a reference to Art. 1 of the Statute, which limits the jurisdiction of the Court to ‘the most serious crimes of international concern’.
47 See Arts 1 and 7(1) ICTYSt. and Art. 1 ICTRSt.
48 See also J.R.W.D. Jones and S. Powles, International Criminal Practice (Oxford–New York: OUP and Transnational Publ., 2003), at 134–135; Robinson, supra note 1, at 494.
49 See SC Res. 1329 of 30 November 2000, in which the Council takes note ‘of the position expressed by the International Tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors’.
50 The travaux preparatoires of Part 2 of the Statute show that States Parties were reluctant to recognize amnesties and pardons. Both forms of exemption of responsibility were considered by the PrepCom in the context of the principle of ne bis in idem, but rejected. Neither Art. 20 (ne bis in idem) nor Part 9 (surrender) makes provision for an amnesty exception. This deliberate silence of the Statute may be interpreted as an indication that the drafters of the Statute intended not to recognize amnesties and pardons at all. See J. Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’, in Cassese, Gaeta and Jones (eds), supra note 31, Vol. I, 693 ff., at 701.
51 See the chapeau of Art. 17.
52 See Art. 17(1)(a) and (b), and Art. 17(2).
53 The same conclusion may be derived from the wording of Art. 19, whose first sentence states that the Court must determine its jurisdiction in any case, even on its own motion. (‘... shall satisfy itself that it has jurisdiction in any case brought before it’). The determination of admissibility, on the contrary, is generally subject to a challenge of admissibility under Art. 19(2). The Court is entitled, but not expressly mandated to make findings on admissibility on its own motion. See Art. 19, second sentence (‘The Court may, on its motion, determine the admissibility of a case in accordance with Article 17 (emphasis added)’).
54 This approach is fully in line with case law of the Inter-American Commission on Human Rights, which stated that governmental recognition of responsibility and even investigations carried out by truth commissions are not a substitute for a State's obligation under the American Convention on Human Rights to investigate, prosecute and sanction those responsible for serious violations of Human Rights. See Inter-American Commission on Human Rights, Garay Hermosilla et al., Case No. 10.843, 1996 Annual Report IACHR (1997), 57; Ellacuria case, Report No. 136/99, 119–230.
55 For a similar result on the basis of a slightly different reasoning, see El Zeidy, supra note 1, at 942.
58 This problem has recently arisen in the context of a Colombian peace proposal, which was designed to encourage demobilization of paramilitary groups in return for reduced sentences. The proposal was criticized by Human Rights Watch, which noted: ‘There are no provisions in the bill to ensure impartial investigations or serious prosecutions. There are no incentives that would compel the accused to tell the truth about crimes, particularly if government official or military officers still on active duty are implicated. There are also no mechanisms proposed that would allow victims of atrocities to appeal the President's decision to designate who would qualify for release from any sentence.’ See Human Rights Watch, Colombia's Checkbook Impunity: A Briefing Paper, 22 September 2003, at 2.
59 See also Scharf, supra note 1, at 188.
60 Concurring Seibert-Fohr, supra note 1, at 569; H. Olásolo, ‘The Triggering Procedure of the International Criminal Court: Procedural Treatment of the Principle of Complementarity and the Role of the Office of the Prosecutor’, 5 International Criminal Law Review (2004) 121 ff., at 139.
61 See also Robinson, supra note 1, at 500.
62 Article 17(1)(b) comes in at a later stage. It addresses the question of under which circumstances a decision not to prosecute after investigation may be validated by the Court.
63 See generally J. Dugard, ‘Reconciliation and Practice: The South African Experience’, 8 Transnational Law and Contemporary Problems (1998) 277 ff.
64 See C. Stahn, ‘Accomodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’, 95 American Journal of International Law (2001) 952 ff.
65 This has been the case in East Timor and South Africa, where proceedings before the truth commission could lead to prosecution. In South Africa, only 10 per cent of the 7,000 persons who applied for amnesties in South Africa were relieved from criminal sanction. A considerable number of applications for amnesties failed, either because applicants did not make full disclosures or because their acts did not qualify as political crimes. The TRC stressed in its Final Report that these cases should be prosecuted. It noted: ‘Where an amnesty has not been sought or has been denied, prosecution should be considered where evidence exists that an individual has committed a gross human rights violation. In this regard, the Commission will make available to the appropriate authorities information in its possession concerning serious allegations against individuals .... In order to avoid a culture of impunity and to entrench the rule of law, the granting of a general amnesty should be resisted.’ See Truth and Reconciliation Commission of South Africa Report (1998), Vol. 2, 309. Section 27.6 of UNTAET Regulation No. 10/2001 of 13 July 2001 obliged the East Timorese Community Reconciliation Panels to refer credible evidence concerning the commission of serious offences directly to the Office of the Public Prosecutor.
66 See also Robinson, supra note 1, at 500.
67 For a wider list of criteria, see Office of the Prosecutor, ‘Informal Expert Paper: The Principle of Complementarity’, supra note 2, at 23; Robinson, supra note 1, at 501–502.
68 See also J.S. Abrams and P. Hayner, ‘Documenting, Acknowledging and Publicizing the Truth’, in M.C. Bassiouni (ed.), Post-Conflict Justice (Ardsley, NY: Transnational, 2002) 283, at 288. The mandate of the Commission for Reception, Truth and Reconciliation in East Timor is exemplary in this regard. It recognizes protection against self-incrimination, a right to legal representation and procedures for the protection of victims and witnesses.
69 See generally J. Strain and E. Keyes, ‘Accountability in the Aftermath of Rwanda's Genocide’, in E. Stromseth (ed.), Accountability For Atrocities: National and International Responses (Ardsley, NY: Transnational, 2003) 87 ff., at 119.
70 It is again questionable whether the gacaca trials would satisfy this requirement. The independence of the proceedings is compromised by the fact that the locally appointed lay judges act as the same as prosecutors in the proceedings.
71 See L. Arbour and M. Bergsmo, ‘Conspicuous Absence of Jurisdictional Overreach’, in H. von Hebel (ed.), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague and Dordrecht: TMC Asser Press and Kluwer Law International, 1999) 129, at 131; S.A. Williams, ‘On Article 17’, in O. Triffterer (ed.), Commentary on the Rome Statute (Baden-Baden: Nomos, 1999), at 393.
72 The Inter-American Court of Human Rights condemned this approach in the Barrios Altos case, after which the Peruvian Supreme Court ordered a re-opening of the investigation, supra note 24.
73 See the amnesty scheme initially proposed by President Uribe in Colombia, under which members of armed groups would receive suspended sentences, with no or minimal terms of imprisonment, provided that they would actively participate in the peace process, promise not to commit further crimes and contribute to the reparation of victims. Alternative sentences included a bar from public functions, geographical restrictions and acts of contrition, such as the payment of fines or the return of land. For a critique, see M. Popkin, ‘Latin America: The Court and the Culture of Impunity’, December 2003, available online at http://www.crimesofwar.org/icc_magazine/icc-popkin.html (visited 10 February 2005).
74 The principle of ne bis in idem would not bar ICC proceedings in this case. The fact that a pardon is pronounced shortly after conviction may indicate that the proceedings as such were not genuine and guided by a lack of bona fide on behalf of a state, as required by Article 20(3). See also J.T. Holmes, ‘The Principle of Complementarity’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law International, 1999) 41 ff., at 77.
75 See, in favour of a strict intent requirement, Arbour and Bergsmo, ‘Conspicuous Absence of Jurisdictional Overreach’, supra note 71, at 131 (‘... the Prosecutor must prove a devious intent on the part of a State, contrary to its apparent actions’).
76 Alternatively, it might be argued that Art. 17(2)(a) applies only to criminal proceedings in the classical sense, but not to truth commissions and alternative forms of justice. This argument might be made in the light of the strict reference to ‘criminal responsibility for crimes’. Such a narrow understanding of the scope of application of the provision contrasts, however, with the use of the notion of ‘proceedings’ at the beginning of the sentence, which appears to incorporate a broader range of proceedings than pure criminal trials. The term ‘proceedings’ must be read in contrast to the narrow notion of trials (‘a trial by the Court’) used in Art. 17(1)(c).
77 Such origin-neutral forms of exemption or alleviation of criminal responsibility might be tolerated because they lack an element of ‘bad faith’ on behalf of the State.
78 ‘Bad faith’ of the State might be implied from the fact that a specific framework of justice or a specific pardon policy protects one group of actors specifically in practice, although it is formulated in origin-neutral terms (de facto discrimination).
79 See also Williams, supra note 71, at 394: ‘[I]t appeared in consultations that even where the proceedings were not a sham that they were defective in the sense that even though the State may be acting in good faith, there are persons whose conduct is geared to for example cause a mistral or taint evidence.’
80 See ss. 22.2 and 27.6 of UNTAET Regulation No. 2001/10.
81 See s. 27.7 of UNTAET Regulation No. 2001/10.
82 Note that Black's Law Dictionary lists 11 different notions of justice, including commutative justice, distributive justice, social justice and substantial justice. See Black's Law Dictionary, supra note 3, at 869.
84 See Report of the Secretary-General, supra note 12, Summary. See also 2 and 64(c) of the Report, in which the Secretary-General requests the Council to ‘reject any endorsement of amnesty for genocide, war crimes, or crimes against humanity’.
85 See H. Olásolo, ‘The Prosecutor of the ICC Before the Initiation of Investigations: A Quasi-Judicial or a Political Body?’, 3 International Criminal Law Review (2003) 87 ff., at 141.
86 This illustrated by the fact that the notion of ‘interests of justice’ is conceived as an independent concept from admissibility under the terms of Art. 53.
87 See Art. 53(1)(c) and (2)(c).
88 See also the Report by the Secretary-General, supra note 12, 25–26.
89 Article 17(1)(c) refers to a person who ‘has already been tried for conduct’. Article 20(3) speaks of a person ‘who has been tried by another court’.
90 See also the approach taken by the Special Court for Sierra Leone, Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decision of 13 March 2004, 84, supra note 14.