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- janinaheller: International Criminal Court: The Potential for Complementarity with the Inter-American System I. Introduction In recent years, international law experts have begun to acknowledge the potential for learning opportunities and collaboration between the International Criminal Court (ICC) and regional human rights systems.1 They have also highlighted the important role that the Inter-American System has been playing over the years in... (more)
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- Maggie Sheerin: A New ICC Justice Reflecting Regional Remedies: Reparations, Reconciliation, and Reform I. Introduction This comment will look at the various ways that the International Criminal Court (ICC) could improve its functionality as a global system, by looking to the regional human rights systems and the ways that they have each pulled from their unique regional histories, to create systems that fit their regional needs and... (more)
- etrevisani: When Non-Incarceration is Enough: Rethinking Inadmissibility Under Article 17 I. Introduction With the creation of the International Criminal Court (ICC) and the parallel development of bold new ideas surrounding restorative justice practices within the legal academy, the end of the twentieth century was a period of dramatic change for international transitional justice spaces.1 These practices reflect robust community... (more)
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Comment on the Legal Traditions Question: “To what extent has the ICC under-represented non-Western laws, principles, rules, procedures, practices, or traditions in its legal structure and system?”
Using Article 53 of the Rome Statute to Incorporate Alternative Justice Mechanisms into the International Criminal Court’s Jurisprudence and Practice
The International Criminal Court (ICC) has faced criticism for failing to incorporate non-Western legal traditions and practices, as well as other alternative justice mechanisms, into its jurisprudence and practice. This criticism is justified, as focusing exclusively on adversarial criminal prosecution at the ICC can be contrary to the desires of victims of international crimes, make peace and reconciliation harder in the communities affected by these crimes, and be too remote in location from these victims since the trials take place in The Hague, Netherlands, a city far from most conflict zones.1 Incorporating alternative justice mechanisms into the ICC’s jurisprudence and practice can serve to further the Court’s mission of preventing international crimes and ending impunity for the perpetrators of such crimes in a manner more acceptable to victims and other parties within an affected country.2
Rather than reforming the Rome Statute or fundamentally changing the ICC, Article 53 of the Rome Statute can be used to incorporate alternative justice mechanisms into the ICC’s jurisprudence and practice. Under Article 53, the Office of the Prosecutor (OTP) has the ability to exercise discretion and decline an investigation or prosecution when it is in the “interests of justice.”3 This comment argues that the OTP should use this discretion in certain cases and allow non-Western legal traditions and practices as well as truth commissions, two alternative justice mechanisms, to hold accountable perpetrators of international crimes. These two alternative justice mechanisms would not otherwise be a part of the Court’s applicable law under Article 21 of the Rome Statute. This comment focuses on laying out and analyzing the conditions that should be met before the OTP invokes its Article 53 discretion and foregoes criminal prosecution for these alternative justice mechanisms. Finally, this comment analyzes the problems that will inevitably come up trying to fulfill these conditions and potential solutions to address those problems.
II. Article 53’s “Interests of Justice” Provision
Article 53(1)(c) states that in deciding to initiate an investigation, the Prosecutor shall consider whether an investigation would not serve the “interests of justice.”4 It further states that the Prosecutor can consider the interests of victims when deciding to launch an investigation.5 The Prosecutor can decline an investigation even if there is a reasonable basis in the law and facts to proceed with one, as long as he or she believes it is not in the “interests of justice.”6 Similarly, Article 53(2)(c) states that the Prosecutor, upon an investigation, can decide not to prosecute because the prosecution is not in the “interests of justice,” even if there is a sufficient legal or factual basis.7 “Interests of justice,” within Article 53, appears to take on a broad interpretation of justice, where non-Western legal traditions and practices, in addition to truth commissions, can be taken into account.8 This is based on an ordinary reading of the text along with how Article 53 allows the Prosecutor to take into account broader factors such as the age and infirmity of perpetrators, the role of perpetrators in the alleged crime, and the interests of victims.9
Western notions of law and justice differ significantly from the legal traditions that have developed in the non-Western world, particularly Africa, and they can conflict with how victims in non-Western countries want to hold accountable those who have harmed them.10 If victims in non-Western countries prefer using their legal traditions and practices as a method of accountability for international crimes, the OTP should consider using its Article 53 discretion and defer an investigation or prosecution. This would certainly be in the interests of justice and the victims, as those directly affected by international crimes, can hold accountable their perpetrators in a manner they prefer. Using non-western legal traditions and practices is not entirely antithetical to the ICC’s mission. These traditions and practices generally seek accountability, the establishment of facts, and some form of compensation to victims. This is the case, for example, with mato oput, which has been the choice of traditional justice for the Acholi people in Uganda.11
It would also be in the “interests of justice” to defer an investigation or prosecution if victims would prefer a truth commission as a mechanism for accountability. This is currently happening in Colombia, where a truth commission is being used to end a decades-long civil war in the country.12 Truth commissions can be an expeditious way of ending a conflict, promoting reconciliation, and moving a country forward. Truth commissions can also assist victims by giving them a forum where they can be acknowledged and give an account of their harrowing experiences.13 There is also no inherent contradiction between a truth commission and the ICC’s mission.14 These commissions still hold perpetrators accountable for crimes, although in a less contentious way. Truth commissions typically involve perpetrators apologizing to victims and explaining their role in a particular conflict as well as the crimes they have committed. Truth commissions can also establish a comprehensive record of the mass atrocities that unfolded during a conflict that can lead to societal acknowledgment of international crimes, educate future generations, and make recommendations for the future.15 This can prevent future international crimes and mass atrocities.
Furthermore, holding ICC trials in a Western city like The Hague also sends a message of continuing imperialism to certain non-Western countries, even if it is not intended. This Western imperialism criticism can be used by despots indicted by the ICC as a way of delegitimizing the Court. By incorporating alternative justice mechanisms and allowing them to take place in an affected country, the ICC can deflect criticism that it is a continuing form of imperialism. This can help the Court focus on its mission more effectively, especially in non-Western countries. Additionally, the ICC tends to hold accountable those most responsible for international crimes, which generally includes high-ranking government and military officials. Rank and file offenders are typically not tried at the ICC. By utilizing alternative justice mechanisms, these rank and file offenders can also be held accountable, and the ICC can further its mission of ending impunity for international crimes.
It would not be in the “interests of justice” to interfere with a desire by victims in an affected country to implement an unconventional alternative justice mechanism as a means of accountability by demanding criminal prosecution at the ICC.16 The OTP taking into account broader factors when it comes to deciding whether to pursue an investigation or prosecution is certainly in the “interests of justice.”
III. The Conditions That Should Be Met Before an Article 53 Deferral
The OTP cannot use its Article 53 power and defer every single case where non-Western legal traditions and practices, or truth commissions, could be applicable. Several conditions should have to be met before such a deferral is granted. The OTP would have to look at the specific facts and circumstances of each case and make an individual decision on deferral based on whether the conditions have been met. If each of the conditions has been satisfied in a particular case, the OTP should consider a deferral of an investigation or prosecution. An alternative justice mechanism will then take place in the country affected by mass atrocities. The following section of this comment will lay out and analyze the conditions that should have to be met before a deferral is granted. It will also discuss problems related to fulfilling those conditions and potential solutions to those problems.
A. Victims Must Agree to an Article 53 Deferral and the Use of an Alternative Justice Mechanism
The first and most important condition that should be met before an Article 53 deferral is that victims of international crimes agree to the deferral and prefer the use of an alternative justice mechanism over prosecution at the ICC. In order to get the opinions of victims, the OTP would need to actively engage with community leaders and victims in the affected country to get a sense of how these victims want to move forward. Community leaders within a country can also conduct polling among the victims to get a sense of their views and can then offer the OTP a recommendation on how to proceed. If the general consensus among victims within an affected country is to support the use of an alternative justice mechanism, the condition of agreement from victims should be considered fulfilled and weigh in favor of an Article 53 deferral.
In Uganda, the Lord’s Resistance Army (LRA) has been engaging in an insurgency, committing numerous crimes against humanity, war crimes, and other atrocities against Ugandan civilians. The LRA has abducted children, turning the girls into sex slaves and the boys into child soldiers.17 These children have been forced by the LRA to kill, torture, and rape others.18 Despite these atrocities, a number of tribal elders and leaders in Uganda believed that the ICC indictments of LRA leaders interfered with the process of peace in their country.19 The Acholi tribes of Uganda and their leaders were the most vocal in demanding an end to ICC prosecution and in supporting their traditional justice mechanism of mato oput to hold accountable LRA leaders and fighters.20 Mato oput is a traditional ceremony that includes an effort to establish the truth, a payment of compensation to victims, and a final drinking of a bitter potion by offenders.21 In Uganda, discussions also included using a truth commission to supplement such traditional justice ceremonies.22
One problem that emerged in Uganda, and that is likely to emerge in any given conflict, is that there are going to be many victims from various different ethnic and religious communities affected by mass atrocities. These diverse victims are likely to disagree on whether they prefer standard criminal prosecution or an alternative justice mechanism. In Uganda, not all Ugandan victims of LRA violence were Acholi.23 Other tribes affected by LRA crimes preferred that the ICC prosecute LRA members.24 In addition, different groups of victims might have different alternative justice mechanisms they prefer to use.
To address complex situations like this, the OTP can take a two-fold approach. The victims that prefer an alternative justice mechanism would be allowed to hold perpetrators accountable in that way. If there are different groups preferring different alternative justice mechanisms, the perpetrators would have to participate in those as well. In exchange for participating in the alternative justice mechanism or mechanisms, the OTP can still prosecute high-level perpetrators for victim groups that prefer criminal prosecution, but mitigate their sentences or reduce the number of crimes they are indicted for at the ICC. This strategy can allow the OTP to hold liable offenders in a way that satisfies the differing demands of various groups of victims.
This approach could be difficult to implement, as it is hard to imagine a party engaged in war, such as the LRA, agreeing to a ceasefire and engaging in an alternative justice mechanism without having ICC prosecution removed completely from consideration. Additionally, perpetrators are unlikely to participate in an alternative justice mechanism without the complete removal of prosecution because anything they say could be used against them in a future prosecution. To remedy this, the OTP could engage in plea bargaining. The OTP can convey a mitigated sentence offer to certain offenders in exchange for them participating in the alternative justice mechanism certain victim groups are seeking. This could incentivize hesitant offenders to accept a deal in a manner favorable to them.
B. Victims Participating in the Alternative Justice Mechanism Need to Be Protected from Violence, Harassment, and Trauma
Victims who agree to participate in an alternative justice mechanism need to be protected from harassment, violence, and retribution for simply partaking in the process. The protection of victims is another condition that should be fulfilled before an Article 53 deferral is granted. This was particularly a problem in Rwanda, when the traditional gacaca courts were trying those accused of participating in the Rwandan Genocide. The International Criminal Tribunal for Rwanda handled the prosecution of high-level army and government officials for their involvement in the Rwandan Genocide.25 Rwanda then implemented the gacaca court system to hold accountable rank and file perpetrators.26 Gacaca uses traditional Rwandan practices of conflict resolution, and accused perpetrators of genocide were tried within their own neighborhoods based on their confessions and the testimony of community members.27 However, the gacaca courts and their implementation had a variety of problems, one of which was the harassment of victims who participated in the gacaca courts.28 Perpetrators, for instance, would describe their crimes in graphic details to intentionally trigger survivors.29
The OTP must ensure victims are not harassed by anybody for simply participating in the alternative justice mechanism like in Rwanda, as the interests of victims are paramount. The OTP should reject a deferral if the safety of victims cannot be assured. One way of ensuring the safety of victims, even after a deferral is granted, is by making clear that the OTP has the power to reconsider a deferral decision. The OTP can reinitiate an investigation or prosecution based on “new facts or information” under Article 53(4) of the Rome Statute and should threaten to use this power if victims are harassed or subject to violence after a deferral is granted.30 The OTP can make sure that parties on the ground know of this provision and can send a message that harassment of victims will not be tolerated. The threat of an ICC indictment and prosecution can be a powerful tool in protecting victims even as an alternative justice mechanism takes place.
Lastly, no victim should be forced to participate in the alternative justice mechanism even if they supported an Article 53 deferral. Victims of mass atrocities have already gone through significant trauma and pain. They should participate in the alternative justice mechanism voluntarily by their own desire. Victims who wish to participate in the process but desire anonymity and privacy should also be granted reasonable accommodations. This is particularly important in the context of sexual crimes. Often, it is humiliating and traumatizing for victims to listen to perpetrators openly talk about how they sexually assaulted or raped them. It could also be traumatizing for the victims to have their family members or neighbors in their community hear about the sexual violence they endured. Therefore, any anonymity and privacy demands from victims should be satisfied. In conclusion, the well-being and safety of victims should be at the center of any alternative justice mechanism.
C. The Use of an Alternative Justice Mechanism Should Facilitate Reconciliation and the Ending of a Conflict
An Article 53 deferral should also serve the purpose of facilitating reconciliation and the ending of a conflict, which is another condition that should have to be met. ICC indictments or prosecutions tend to increase tensions in an ongoing conflict and exacerbate the situation in the affected country. If a deferral also aggravates tensions, prolongs a conflict, or fails to bring an end to a conflict, then it defeats the purpose of granting one.
In Uganda, for example, the LRA promised they would engage in alternative justice measures if ICC prosecution was removed from consideration.31 Although it never came to fruition, this would have ideally ended the conflict and would have allowed all affected parties in Uganda to reconcile and rebuild their country.
In Colombia, the formation of a recent truth commission has the potential of ending an almost six decades-long conflict.32 Fuerzas Armadas Revolucionarias de Colombia (FARC) is a communist guerrilla force that has been involved in a longstanding conflict against the Colombian government. In September 2016, the Colombian government and FARC representatives signed the final peace agreement ending Colombia’s protracted conflict.33 The agreement included the formation of a truth commission that would strive to create a comprehensive record of the decade’s long war.34
The potential for peace like in Colombia is one of the main reasons why the OTP should consider an Article 53 deferral. The ending of a conflict can be helpful from a humanitarian perspective, as civilians would no longer be affected by the devastations of war. Affected countries can also move toward reconciliation quicker. However, the use of alternative justice mechanisms could still be a divisive issue for parties in an affected country, and their implementation does not always ensure reconciliation or peace. Certain groups of perpetrators might be averse to participating in alternative justice mechanisms for various reasons. Thus, the OTP must be convinced that deferral would help facilitate reconciliation and an end to a conflict.
D. The Alternative Justice Mechanism Must Be Capable of Handling International Crimes and Mass Atrocities
Another condition that should be met is that the alternative justice mechanism must be capable of handling and holding accountable people accused of serious international crimes. This condition is more of an issue with many non-Western legal traditions and practices than it is with truth commissions, as truth commissions in the past have dealt with serious crimes. Many non-Western legal traditions and practices, such as mato oput, have traditionally been used in inter-clan disputes involving relatively minor crimes, such as a single act of murder.35 They were never intended to deal with international crimes and mass atrocities.36
Specifically, traditional ceremonies like mato oput require the victim and offender to come together and reconcile.37 It is difficult to imagine such a pairing of victims and offenders in cases of international crimes given the complex nature of wars and mass atrocities. It is highly likely in post-conflict situations that many offenders might not remember who they had committed crimes against. In addition, compensation of victims could be an issue if the offenders don’t know their victims.38 Compensation can also be difficult to scale for mass atrocities, and offenders are unlikely to have the resources to properly compensate victims.39 Lastly, non-Western traditional ceremonies could also take decades to complete given the sheer number of perpetrators that are likely to participate.
One solution could be to adapt and reform the non-Western legal traditions and practices of victims so that they can be capable of dealing with international crimes.40 It would be formalized into a pseudo-traditional justice system that would still retain many of the traditions and practices of a particular group but also incorporate ways of dealing with the previously mentioned problems.41 Another option can be to combine non-Western legal traditions and practices with a truth commission. Non-Western legal traditions would try to achieve individual accountability when a victim knows his or her specific offender.42 Truth commissions can get to the wider truths of a conflict and can allow offenders who don’t remember their victims to confess to their crimes and help create a record for the future.43 A last option could be for the ICC to still indict or put on trial the most responsible and high-ranking perpetrators but reduce their sentences or lessen the number of charges if the perpetrators undergo an alternative justice mechanism.
It is also critical that community leaders and other locals in the affected country reform the non-Western legal traditions and practices of a particular victim group. This is so that the emerging pseudo-traditional justice system has legitimacy in the eyes of victims, perpetrators, and the entire affected country. If the OTP is actively involved in the reformation process, it could be seen as a form of lingering Western imperialism. As a result, victims and perpetrators alike would not feel comfortable participating in the reformed legal traditions and practices. The OTP can help provide guidance, perhaps through third parties such as non-governmental organizations, but it should not actively try to shape the reformation process.
E. The Country Hosting the Alternative Justice Mechanism Must Have the Ability to Do So
The OTP must also be convinced that an affected country is capable logistically of hosting alternative justice mechanisms on its territory. Using alternative justice mechanisms for international crimes will undoubtedly lead to the participations of thousands of people. Accordingly, careful planning and preparation are critical if an alternative justice mechanism on such a scale is to succeed. Otherwise, the alternative justice mechanism can fail to achieve its goals. For example, in South Africa, the truth commission formed after apartheid had logistical and resource constraints.44 As a result, victims were left disappointed, feeling that efforts to address their concerns were inadequate and carried with minimal effort.45
One problem in post-conflict situations is that affected victims are likely displaced from where they normally live. They are often times displaced into neighboring countries or refugee camps. Traditional villages are also left in shambles or replaced by these refugee camps.46 As a result, the host country may not have any suitable locations or even the infrastructure to host traditional ceremonies or a truth commission.
The easiest way to ensure suitable locations and infrastructure is to increase funding to the host countries so that they can rebuild facilities and infrastructure to host alternative justice mechanisms. In the past, non-government aid groups, Christian organizations, and other peace organizations have helped fund traditional rituals in Uganda.47 States Parties to the Rome Statute can also donate funds so that countries are able to quickly and efficiently host alternative justice mechanisms. In order to gain legitimacy from victims, perpetrators, and the country as a whole, the affected country must host these alternative justice mechanisms. Allowing other countries, especially those in the West, to become hosts would be a non-starter, as victims and perpetrators would distrust the process and refuse to participate in it. Any semblance of legitimacy for the alternative justice mechanism in the eyes of these parties and the affected country would disappear.
The OTP must also be satisfied that those participating and hosting the alternative justice mechanism are not put in harm’s way or placed in any dangerous situation. Ideally, if a deferral is granted and alternative justice mechanisms are beginning, a conflict would have ceased in the affected country. However, low intensity fighting can still be ongoing in parts of a country when there are attempts to host an alternative justice mechanism. Some parties might have rejected offers to join the alternative justice mechanism, continuing to still engage in war. Therefore, to grant a deferral, the OTP should be convinced that settings where the alternative justice mechanisms are going to take place are kept safe from attacks or other dangers. Perhaps peacekeepers from the United Nations or soldiers from third-party countries can help protect and secure the settings, assuming there is still fighting going on in the affected country.
F. Capable, Competent, and Honest People Must Manage and Adjudicate the Alternative Justice Mechanism
Another condition that should be satisfied is that competent, capable, and honest individuals should manage and adjudicate the alternative justice mechanism. These adjudicators would have to be from the victim group who has suffered the atrocities in a conflict. They must be locals, ideally community leaders or tribal elders from the affected victim group, who have legitimacy among the population. They cannot be judges or adjudicators from other countries. When non-Western legal traditions and practices are being used for accountability, the selected adjudicators must be competent enough to host and adjudicate them. The selected adjudicators must have fluency in the legal traditions and practices of their ethnic or religious group and must be able to facilitate its implementation in a fair, unbiased way. Assuming the legal traditions and practices are reformed to be able to handle international crimes as discussed previously, these adjudicators must also understand the new reformations to their traditional practices.
In Rwanda, judges running the gacaca courts were poorly trained and educated, which raised serious fairness concerns about how the courts were handled.48 Judges would render decisions on a whim rather than a body of legal text and often without a proper explanation for the reasoning.49 This would lead to conflicting rulings and decisions in similar cases with similar facts.50 Therefore, it is important that those adjudicating the non-Western legal traditions be well-versed in the traditions and render fair conclusions based on sound reasoning. This is less of an issue when truth commissions are carried out, as there is less of a fluency on a particular legal tradition or a body of legal text that is needed.
Furthermore, in a post-conflict situation, it is reasonable to assume there is going to be a shortage of adjudicators and other people willing to manage these alternative justice mechanisms. This includes community leaders and tribal elders from an affected victim group, as many will likely have been killed or have fled to surrounding countries to escape war. This was a problem in Rwanda after the genocide, as most of Rwanda’s judges and lawyers had been killed throughout the course of the conflict.51 This is why Rwanda had to rely on poorly trained and educated judges to handle the gacaca courts. Additionally, traditional ceremonies and practices hold less influence with younger people, and as a result, they would not be suitable adjudicators. If a significant number of older people are killed off in a conflict, the lack of knowledgeable people capable of adjudicating could present a problem. Therefore, the OTP must be convinced that enough competent people within an affected country exist to be able to adjudicate alternative justice mechanisms.
Lastly, the corruption of those adjudicating alternative justice mechanisms must be addressed. The judges in the gacaca courts in Rwanda were susceptible to corruption due to the conditions in the country.52 This undoubtedly led to sham prosecutions of certain offenders and less legitimacy for the gacaca courts. Particularly, judges were not compensated, making them eager to take bribes and favor certain offenders.53 Additionally, the gacaca courts took place in local settings, making it almost certain that the judges would know the offenders.54 This meant they were more lenient towards offenders they knew or with which they had family connections. The OTP must ensure such corruption is rooted out before agreeing to grant a deferral. In order to ensure compliance even after a deferral is granted, the OTP can threaten to use its Article 53(4) power and reopen an investigation or prosecution by stating that they discovered “new facts or information.”55 Making sure that adjudicators handling an alternative justice mechanism know of this power will be critical to keeping corruption at bay and ensuring a fair process for all those participating.
G. Some Form of Adverse Consequence for Perpetrators Must Exist Within the Alternative Justice Mechanism
Another critical condition that should be met prior to an Article 53 deferral is that each perpetrator seeking amnesty by participating in the alternative justice mechanism has to be subjected to some form of adverse consequence. This means that the blanket granting of amnesty without any conditions to those who have committed mass atrocities should be unacceptable to the OTP, even if it hinders the ending of a conflict. Amnesties should also not be granted for an entire ethnic or religious group if only a handful of people from the group participate in the alternative justice mechanism. Blanket amnesties are in direct conflict with the ICC’s mission of ending impunity for perpetrators of international crimes.56
Each perpetrator seeking amnesty needs to take part in the alternative justice mechanism and individually face consequences for his or her actions. However, this does not mean that the adverse consequence has to necessarily be one that is practiced in the Western world, such as incarceration or fines. It also does not mean that the offender has to be punished severely. Rather, the offender must, at a minimum, do something to earn a reprieve. The OTP should also be certain that the alternative justice mechanism does not lead to the collective punishment of an entire ethnic or religious group.
Within truth commissions, having offenders being granted amnesty on the condition of cooperation with the commission can constitute a form of adverse consequence.57 Offenders can be asked to apologize to victims and give an explanation of their role in a particular conflict. This differs considerably from a blanket amnesty, as the offenders are doing something to earn a reprieve. Additionally, forcing offenders to participate in a truth commission leads to social condemnation and the shaming of the offenders within their communities, which is also a humiliating consequence.58
As an example, in East Timor, a truth commission was established to investigate mass atrocities and other human rights violations that took place during the Indonesian occupation of the country. The truth commission conditioned the granting of an amnesty on offenders demonstrating visible remorse to the people affected by their crimes.59 This could be done through a public apology, reparations, or community service to those affected.60 These are the specific acts offenders were required to take in East Timor to earn an amnesty, which are adverse consequences they suffered.
Similarly, non-Western legal traditions and practices also require that offenders engage in some sort of apology to victims which is followed by compensation to these victims. They generally do not involve blanket amnesty. For example, as explained previously, mato oput in Uganda requires some sort of compensation to victims and a final drinking of a bitter potion, acts that can be considered adverse consequences. Thus, most non-Western legal traditions and practices can satisfy this condition for deferral as well.
Despite these alternative justice mechanisms having some adverse consequence to them, critics will argue they are still insufficient to punish those accused of international crimes. They will claim that the alternative justice mechanisms are not proportional to the gravity of these crimes. One rejoinder to this criticism is that the maximum punishment under the ICC is a term of thirty years imprisonment, with eligibility for a reduction in the sentence after twenty years, or life imprisonment for more serious crimes, with eligibly for a reduction in the sentence after twenty-five years.61 These punishments are certainly not proportional to international crimes like genocide, and potentially, no term of incarceration can ever be.62
However, as previously mentioned, the ICC could potentially still combine an alternative justice mechanism with mitigated incarceration in certain cases. The ICC can continue to indict a small number of high-level officials who are accused of particularly egregious crimes in the course of a conflict. Their sentence would be mitigated if they chose to participate in an alternative justice mechanism. However, only the most prominent high-level officials would be indicted, not all of them. They would have to be high-level officials with a particularly notorious record of barbarism and cruelty throughout a conflict. Less prominent high-level officials and rank and file offenders would exclusively be dealt with an alternative justice mechanism.
This limited use of incarceration can be a compromise for critics who claim relying exclusively on an alternative justice mechanism is not a sufficient punishment for international crimes. However, as discussed previously, the potential for incarceration can dampen a desire by certain offenders to participate in an alternative justice mechanism. The OTP would have to negotiate a plea bargain with these offenders beforehand and offer a mitigated sentence.
Lastly, the OTP must ensure that any alternative justice mechanism used by a particular group does not subject perpetrators to any form of cruel or extremely degrading punishment. In some cultures, corporal punishment or the execution of perpetrators might be deemed acceptable. The OTP must draw limits and ensure that these kinds of punishments are not used. Allowing or sanctioning these kinds of punishments will stain the ICC’s reputation and can lead down a dangerous path where, later on, even worse treatment of perpetrators takes place, such as extrajudicial killings. Additionally, many of the States Parties to the Rome Statute, particularly European countries, are vehemently opposed to capital punishment. Sanctioning its use through alternative justice mechanisms would certainly raise problems for the ICC.
H. The Alternative Justice Mechanism Must Require a Confession and Explanation from Perpetrators in Order to Establish a Complete Record of a Conflict
Closely related to the previous condition, in order to qualify for a deferral, the alternative justice mechanism should also require a confession and explanation from each perpetrator. This means that each perpetrator participating in the alternative justice mechanism must detail his or her role in the conflict as well as the crimes he or she committed. The confession and explanation should be thorough enough to help establish a complete and accurate factual record of a particular conflict, which is critical for true reconciliation to take place in a country.
In Guatemala, a truth commission was established after the end of the country’s civil war. However, the truth commission was prohibited from assigning any individual responsibility.63 Human rights organizations believed that a report would be useful if it unequivocally mentioned the perpetrators of the criminal acts committed throughout a conflict.64 These organizations believed that a watered-down report could not make any meaningful contribution in building a more prosperous future for Guatemala.65
To avoid such a situation, the alternative justice mechanism must require an explanation and confession from each perpetrator. Each victim is entitled to all the information their perpetrators know about the crimes they committed in a conflict. A thorough record will ultimately have a list of crimes committed throughout a conflict along with their perpetrators. Only by obtaining a complete and accurate record can an affected society learn from its mistakes and prevent mass atrocities in the future.
I. There Must Be Inclusive Participation, and All Parties Must Be Treated Equally and Fairly in the Alternative Justice Mechanism
The last condition that should have to be satisfied before an Article 53 deferral is that all those affected by a conflict and mass atrocities should be allowed to participate in the alternative justice mechanism. No offenders or victims should be denied from participating if they desire to do so. The purpose of a deferral is to ensure everyone within the affected country is able to come together and reconcile. Excluding one group of offenders or victims would jeopardize the whole process and ensure the failure of the alternative justice mechanism.
Additionally, no exemptions from participating in an alternative justice mechanism should be granted to certain parties. In Rwanda, the gacaca courts excluded crimes committed by soldiers of the Rwandan Patriotic Front (RPF), which has been the country’s ruling party since 1994.66 This undoubtedly corrupted the gacaca courts, as a certain group of perpetrators were never held accountable for their actions and were able to commit mass atrocities with impunity. Victims affected by RPF violence were never able to seek justice, and as a result, the gacaca courts could not provide equal justice to all victims.
The OTP should ensure no such deals are struck if a deferral is granted, where a certain group of perpetrators are excluded or granted immunity from participating in an alternative justice mechanism. This should include the ruling political party or government of an affected country at the time the alternative justice mechanism is about to take place. No government or political party in power should be allowed to hide or obfuscate its role in a conflict, regardless of how contentious or controversial this would be. In addition, allowing an exception for certain government or party officials can lead to arbitrary and unfair results.67 A person who committed a minor offense in a conflict and had participated in the alternative justice mechanism would be stigmatized and face some form of accountability, while certain government officials or members of a ruling political party who committed more serious offenses would escape with impunity.68 This would defeat the whole purpose of a deferral and ensure victims are denied a chance at holding their perpetrators accountable, like in Rwanda.
It has been the ICC’s mission to prevent international crimes and hold the perpetrators of such crimes accountable. To achieve this mission, the ICC has relied exclusively on a Western conception of accountability, focusing solely on criminal prosecution. As a result, the criticism directed at the Court for failing to utilize non-Western legal traditions and practices, as well as other alternative justice mechanisms, is fair. The ICC is a unique court that has the potential to exercise jurisdiction all over the world, and an institution with such a global reach should rely on differing mechanisms of accountability.
As this comment discussed, drastic measures or reforms are not necessary. By using its existing Article 53 power, the OTP can defer an investigation or prosecution, and incorporate alternative justice mechanisms into the ICC’s jurisprudence and practice. Requiring that several conditions be met before the OTP decides to grant a deferral can ensure that the deferral process is used properly as an alternate mechanism of justice and not as a way for perpetrators to escape liability. Once a deferral is granted, the OTP’s job does not end. The OTP must still monitor how the alternative justice mechanism is being implemented in the affected country. In particular, the OTP must ensure that the conditions that were initially fulfilled and that prompted the deferral are still being met. If at any time the OTP sees that the alternative justice mechanism is not making progress, is failing to meet its goals, or the conditions of deferral are no longer being met, it should utilize its Article 53(4) power and reconsider launching an investigation or prosecution based “new facts or information.”69
Whether by using truth commissions or non-Western legal traditions and practices, parties in affected countries can settle long-standing conflicts in a manner more acceptable to them. This could reduce tensions long after a conflict is over and allow an affected country to heal quicker, as ICC indictments and prosecutions can continue to be divisive even after a conflict ends. In conclusion, the OTP should consider publishing a policy paper explaining how an Article 53 deferral can be used as a way of incorporating alternative justice mechanisms, and begin a path toward a more inclusive ICC.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. 1, 2–3 (2019), available online. ↩
International Criminal Court, Understanding the International Criminal Court (Mar. 12, 2021), available online (last visited Jun. 23, 2022). ↩
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, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 53, available online. ↩
Id. Art. 53(1)(c). ↩
Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 248 (2008), available online. ↩
Rome Statute, supra note 3, at Art. 53(2)(c). ↩
Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 EJIL 481, 488 (2003), available online. ↩
Dana Zartner, The Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-Conflict Societies, 22 Ind. Int’l & Comp. L. Rev. 297, 298, 302 (Jan. 1, 2012), available online. ↩
Keller, supra note 6, at 230. ↩
Nyasha Laing, Colombia’s Truth Commission Prepares to Embark on the Extraterritorial Truth-Telling Process, ICTJ (Aug. 22, 2018) [hereinafter Colombia’s Truth Commission], available online. ↩
Declan Roche, Truth Commission Amnesties and the International Criminal Court, 45 BJC 565, 574 (May 3, 2005), paywall, doi. ↩
Robinson, supra note 8, at 484. ↩
Id. at 481. ↩
Keller, supra note 6, at 213. ↩
Id. at 213–14. ↩
Zartner, supra note 10, at 306. ↩
Keller, supra note 6, at 224–25. ↩
Id. at 230. ↩
Id. at 231. ↩
Id. at 225. ↩
International Criminal Tribunal for Rwanda, Holocaust Memorial Day Trust, available online (last visited Jun. 23, 2022). ↩
Emma M. Costello, Justice for Whom? The Gacaca Courts and Restorative Justice for Survivors of Sexual Violence in Rwanda (2016) (B.A. Thesis, University of Michigan), available online. ↩
Rome Statute, supra note 3, at Art. 53(4). ↩
Keller, supra note 6, at 217. ↩
Colombia’s Truth Commission, supra note 12. ↩
Keller, supra note 6, at 230. ↩
Id. at 231. ↩
Id. at 232. ↩
Id. at 235–36. ↩
Id. at 232. ↩
Tim Allen, Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa 47, 50 (Nicholas Waddell & Phil Clark eds., Mar. 2008) [hereinafter Ritual Abuse], available online. ↩
Id. at 231. ↩
Roche, supra note 13, at 577. ↩
Keller, supra note 6, at 210, 214. ↩
Ritual Abuse, supra note 41, at 48. ↩
Human Rights Watch, Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts (May 31, 2011) [hereinafter Legacy], available online. ↩
Costello, supra note 26. ↩
Legacy, supra note 48. ↩
Rome Statute, supra note 3, at Art. 53(4). ↩
Robinson, supra note 8, at 484. ↩
Minow, supra note 1, at 16. ↩
Id. at 18–19. ↩
Id. at 19. ↩
Rome Statute, supra note 3, at Arts. 78, 110. ↩
Keller, supra note 6, at 268. ↩
Christian Tomuschat, Clarification Commission in Guatemala, 23 Hum. Rts. Q. 233, 243 (May 2001), paywall, doi. ↩
Id. at 243. ↩
Legacy, supra note 48. ↩
Tomuschat, supra note 63, at 244. ↩
Rome Statute, supra note 3, at Art. 53(4). ↩