The Rome Statute, the Court’s governing document, does not explain what types of proceedings satisfy its complementarity provision, which provides that the Court can exercise jurisdiction only when a state party is unable or unwilling to prosecute or investigate an alleged violator of human rights.7 Broadening the interpretation of prosecution and investigation beyond the western definitions associated with these terms allows the ICC to incorporate alternative forms of justice in its complementarity definition; thereby recognizing the sovereignty and legitimacy of non-western standards for justice. This paper examines the compatibility of one such alternative form of justice, South Africa’s Truth and Reconciliation Commission (“TRC” or the “Commission”), with the Rome Statute’s complementarity provision. The means by which the Court can best effectuate this broader interpretation, whether through a public statement by the Prosecutor or by recognizing it in the Regulations of the Office of the Prosecutor, are outside the scope of this paper.

Argument

Complementarity Provision Under the Rome Statute

The ICC’s jurisdiction is triggered when a state party is “unwilling or unable” to prosecute international crimes subject to the jurisdiction of the Court.8 Article 17 of the Rome Statute provides that a case is inadmissible when it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the State in unwilling or unable genuinely to carry out the investigation or prosecution.”9 Also inadmissible are cases in which the State of jurisdiction has decided not to prosecute the person committing the crime, if such decision did not result from the “unwillingness or inability of the State genuinely to prosecute.”10

Pursuant to Article 17, the Court must respect domestic prosecutions and investigations. However, the Statute does not provide what types of proceedings or investigations satisfy the complementarity requirement. Therefore, it is not clear whether domestic amnesties, which differ from western norms of prosecution and investigation, fulfill the Statute’s complementarity requirement. Understanding whether such non-western forms of justice satisfy the Rome Statute’s complementarity provision is of great significance. If complementarity is satisfied only when a state party prosecutes its criminals according to western norms of prosecution (i.e. trial by a judge or jury), then the perception that the ICC is a neo-colonial institution trying to impose its western values on states parties may be justified. On the other hand, if the ICC refuses to prosecute an accused person on the ground that the state of jurisdiction has held the person accountable through its own unique form of justice (i.e. some form of restorative justice mechanism), the argument that the ICC is imposing its western values of justice on its states parties loses ground.

South Africa’s Truth and Reconciliation Commission (TRC)

The TRC was created in 1994 to investigate the atrocities perpetrated during the Apartheid regime.11 The Commission’s objectives were to:

1. establish a complete picture of the extent and causes of gross human rights violations during the Apartheid regime,

2. grant amnesty to those perpetrators who fully and publicly disclosed their crimes,

3. allow the victims of human rights violation to testify to their experiences

4. recommend reparative and rehabilitative measures for the victims, and

5. publish a report on the Commission’s findings and provide a set of recommendations with the goal to prevent future human rights violations in the country.12

The TRC was designed to hold perpetrators of gross human rights violations accountable by forcing them to publicly take responsibility for their actions.13 The perpetrators who confessed to their crimes completely and truthfully were granted amnesty and did not face judicial punishment.14 The Commission considered prosecution in cases where the offender did not make a full disclosure of all the facts relating to his past crimes.15

Compatibility of TRC with ICC’s Mandate

The main issue regarding the ICC’s consideration of domestic amnesties such as the TRC in its complementarity determination is whether the structure of such practices comports with the Rome Statute’s requirement of prosecution and investigation. The Rome Statute’s Preamble, against which its articles are to be interpreted, provides 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.”16 The Preamble further states, “it is the duty of every state to exercise criminal jurisdiction over those who have committed international crimes.”17

Some scholars have suggested that the Preamble’s emphasis on punishment and effective prosecution seems to indicate that domestic amnesties such as the TRC should not be considered by the Court as satisfying complementarity.18 Domestic amnesties focus on rehabilitation as opposed to punishment. On the other hand, it can be argued that the Commission punishes and holds the accused accountable by requiring him to confess to his crimes. Some scholars have argued that the kind of accountability and punishment the TRC establishes is just as effective as that established by prosecution because the public acknowledgment of past atrocities carries with it a shame far worse than the shame of going to prison.19

There are two possible ways through which the Prosecutor can recognize and respect domestic amnesties, like the TRC, that would be consistent with the Rome Statute. First, the ICC’s Prosecutor has discretion to refuse to prosecute or investigate a person who has come before the TRC and has been granted amnesty. Article 53(1)(c) of the Rome Statute provides that in deciding whether to initiate an investigation, the Prosecutor shall consider whether “[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”20 Therefore, the Prosecutor has discretion not to prosecute a perpetrator who has made a complete disclosure of his past atrocities before a tribunal like the TRC if the prosecution would not “serve the interests of justice.” It has to be noted that a broad interpretation of the phrase “interests of justice” opens the door to a great amount of latitude for the Prosecutor, which in turn can delegitimize the Court. However, given the importance of the ICC’s recognition of other countries’ preferred justice mechanisms for the purpose of its complementarity determination, it makes sense for the Prosecutor to invoke his discretionary power in this context.

Second, it can be argued that the TRC constitutes an investigation under the Rome Statute and therefore, prohibits the Prosecutor to pursue the case under Article 17.21 For instance, the TRC can be considered as the South Africa’s investigation mechanism to determine which cases are to be prosecuted and therefore the state’s decision not to prosecute the person committing the crime must be respected by the Prosecutor according to Article 17.

On the other hand, domestic amnesties like the TRC can be invalidated on the basis of the state’s unwillingness to prosecute its violators of international law. The Rome Statute provides that to determine unwillingness, the Court shall include whether:

1. the proceedings were undertaken to shield the persons concerned from criminal responsibility,

2. there has been “unjustified delay” in the proceedings, and

3. the proceedings were conducted impartially in a manner consistent “with an intent to bring the person concerned to justice.”22

Therefore, the TRC, can be viewed as a mechanism created to shield criminals since its very purpose is to grant amnesty in exchange of full disclosure of truth. However, the Rome Statute leaves room for an interpretation of Article 17 that would exclude domestic amnesties as a form of a state’s unwillingness to prosecute its criminals. For instance, by applying the unwillingness language to the TRC, the Court could interpret unwillingness as an attempt to grant amnesties to perpetrators who have not been completely truthful before the Commission based on the evidence gathered by the Commission. Unwillingness could also be interpreted as an attempt to unduly delay the recommendation to prosecute an accused who has not made a complete disclosure.

Conclusion

The decision to recognize domestic amnesties as legitimate mechanisms in determining complementarity has serious implications and cannot be made without difficult determinations regarding the meaning of justice, punishment, and accountability. In this respect ICC faces two options. It can serve its mandate exclusively through the western notions of justice, prosecution, and investigation or it can be more accommodating of other nations’ understanding of these concepts. Either choice has its challenges and difficulties. However, the ICC’s decision to be sensitive to its states parties’ preferred standard of justice will enhance these states parties’ efforts to prosecute and address violations of human rights and will directly contradict the argument that the Court is yet another neo-colonial institution. This decision might in turn dissuade other states parties from withdrawing from the Court or change the decisions of those countries that have already decided to leave the ICC.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩

2. 2.

   Id. ↩

3. 3.

   Noah Feldman, International Criminal Court Is Too Focused on Africa, Bloomberg News, Oct. 25, 2016, available online. ↩

4. 4.

   Gambia Latest African Country to Withdraw From International Criminal Court, Voice of America, Oct. 26, 2016, available online. ↩

5. 5.

   Sewell Chan & Marlise Simons, supra note 1. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble. ↩

7. 7.

   Id. at art. 17. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Truth Commission: South Africa, USIP (Dec. 1, 1995), [hereinafter Truth Commission], available online. ↩

12. 12.

    See Christine M. Hart, Learning From South Africa: The TRC, The ICC and The Future of Accountability, 12 J. Pub. Int’l Aff. 25 (2001), available online. ↩

13. 13.

    Id. at 30. ↩

14. 14.

    Truth Commission, supra note 11. ↩

15. 15.

    Shaun Benton, New Policy on Apartheid Crimes, Brand South Africa (Jan. 18, 2006) available online. ↩

16. 16.

    Rome Statute, Preamble. ↩

17. 17.

    Id. (emphasis added). ↩

18. 18.

    See Hart, supra note 12, at 33. ↩

19. 19.

    Id. at 29. ↩

20. 20.

    Rome Statute, art. 53. ↩

21. 21.

    See Hart, supra note 12, at 34. ↩

22. 22.

    Rome Statute, art. 17(2). ↩