The “duty to prosecute” refers to the claim by proponents of international criminal justice that the international community has a moral and legal obligation to investigate and punish the most serious abuses of human rights in the aftermath of war or repressive rule. Conversely, it challenges the legitimacy of amnesties and non-retributive forms of transitional justice for perpetrators of such crimes. The duty has its origins in (a) international treaties that have codified a universal recognition of core crimes for which prosecution is mandated, and (b) the international human rights law which creates for victims a nonnegotiable right of redress for the wrongs done to them. The argument has been challenged primarily on consequentialist grounds – that is, that strictly demanding prosecution might prolong a war, dissuade a dictator from stepping down, or generate a violent backlash against transitions to democracy or peace.
The phrase “duty to prosecute” was originally used by the legal scholar Diane Orentlicher in a 1990 article, written shortly after democratic transitions from military rule in Latin America and from communism in Eastern Europe. In most of these cases, there were few prosecutions. The transitions were facilitated by formal or de facto amnesties, often accompanied by non-retributive forms of accountability, such as truth commissions or lustration. In some cases, such as Argentina, prosecutions took place but the process was aborted because of fears of military backlash. Orentlicher argued that the failure to prosecute the crimes of the old regime is a violation of the state’s duty under international law to hold individuals accountable for universally reprehended crimes, such as torture or disappearances. While she acknowledged that it may not be practical to bring every perpetrator to trial, that duty requires at least “exemplary prosecutions” of those who bear the greatest responsibility for systematic atrocities or those implicated in the most heinous crimes. If states default on those duties by granting an amnesty or otherwise failing to prosecute such crimes, the duty to prosecute falls to the international community either through an international tribunal or national courts exercising universal jurisdiction. The logic underlying this ethical framework informed the Spanish case against former Chilean dictator Augusto Pinochet, whose prosecution in Chile was blocked by the amnesty he granted himself before leaving office and the inhibitions of the domestic political system in challenging that amnesty because of the residual power of the military after the democratic transition. It is also the reason why the jurisdiction of the International Criminal Court (ICC) is complementary to national systems of justice. The preamble to its founding Rome Statute asserts the “duty of every state to exercise its criminal jurisdiction over those responsible for international crimes” and a case is only admissible before the ICC if a state is unwilling or unable to fulfill that duty.
The legal sources of the “duty to prosecute” lie in international criminal and human rights law and the normative premises that underlie them. International criminal law emerged after the Second World War to spell out the gravest crimes of concern and specify penalties for their conduct so as to deter or suppress them, as in a domestic criminal law system. The 1948 Genocide Convention, for example, defines genocide as an international crime that the parties undertake to prevent and punish. The 1949 Geneva Conventions define the worst violations of the laws of war as “grave breaches,” which involve an obligation to prosecute, regardless of nationality, or to extradite to a state party willing to do so. The same “prosecute or extradite” language (aut dedere, aut judicare) is also part of the 1984 Convention on Torture and was key to the decision of the British Law Lords in upholding the legality of Spain’s extradition request for Pinochet. The Rome Statute (1998) also laid out the ICC’s mandate to put an end to impunity for international crimes through prosecution and asserted an international duty of all state parties to exercise criminal jurisdiction over such crimes. These legal developments have also provided the basis for the delegitimation of amnesties for the most serious violations of international law. For example, the UN’s Special Representative to the 1999 Lomé Accords, which were designed to end the civil war in Sierra Leone, withheld international recognition of the blanket amnesty granted to all of the parties. In 2002, the Special Court for Sierra Leone – a mixed tribunal of national and international judges created in negotiations between the government and the UN – declared the amnesty provision to be invalid since there was an international duty to prosecute the most serious international crimes.
The moral basis for the duty to prosecute lies in the rights of victims, which are protected by international human rights law. Article 2(3) of the International Covenant on Civil and Political Rights asserts that victims of human rights violations have a right to a remedy, even if the violator is acting in an official capacity. While this right to redress might sometimes involve civil penalties, nothing less than prosecution and imprisonment are appropriate remedies for the gravest abuses. Extending amnesties for such crimes would sacrifice what should be a victim’s nonnegotiable right to redress to the political agenda of the state. It would also violate the principle of equality before the law because perpetrators would be able to leverage their positions of power into immunity from prosecution.
Some proponents of the duty to prosecute also claim that consistently acting on this obligation will have superior consequences for promoting human rights in transitional societies. First, it will serve as a deterrent to the recurrence of human rights abuses in those countries in which it is applied and to the world at large by demonstrating to would-be perpetrators that certain means are outside the realm of normal politics and their employment would brand them as international criminals. Second, it will help consolidate peace and democracy in transitional societies by (a) serving as a substitute for vengeance on the part of victims, thereby reducing the risk of vigilante violence, (b) incapacitating criminal actors whose continued participation in post-conflict politics could undermine the transition, and (c) setting an example of how democratic institutions deal with former enemies through the rule of law.
Critics of the duty to prosecute challenge its consequentialist assumptions and warn of its potential to destabilize vulnerable democratic transitions. This was the response to Orentlicher by Carlos Nino, an Argentine human rights lawyer who advised President Raúl Alfonsin on the prosecution of military leaders for torture and disappearances during the dictatorship (1977–1983) – a process that was scaled back and later aborted as a result of military unrest. Based on his experience, Nino objected to the view that prosecution was an internationally mandated duty since the ability to try perpetrators is often constrained by the political environment confronting the new government. In some circumstances, the consequences of ignoring that environment could result in violent backlash, putting the new democratic order at risk. To ignore these risks, Nino argues, would violate the state’s primary duty to safeguard human rights and prevent future violations, a duty that is more fundamental than an international legal obligation to bring perpetrators to trial.
Orentlicher and other proponents of the duty to prosecute acknowledge that there are circumstances when the power of the old regime makes trials impossible – that is, the duty to prosecute does not require newly established democracies to risk political suicide. In those cases, she argues, the duty falls to the international community, as in the Pinochet case. While Nino wrote before the Pinochet case, he warned of the potentially destabilizing consequences of foreign judicial intervention, which could put at risk the complex compromises involved in making a transition possible, inviting a political backlash without actually increasing the power of the new regime to confront it. Defenders of the duty to prosecute note that in the aftermath of the 16-month controversy in Great Britain over Pinochet’s extradition to Spain, Chile actually became bolder in legal proceedings against crimes committed under the military dictatorship. Critics argue that decisions about prosecution should ultimately be made not by outsiders, but by those most likely to bear the risks to the democratic order should prosecution trigger a violent backlash.
Critics also challenge the assumption that prosecution is mandated by the needs of victims. Victims’ interests are more varied than proponents of criminal justice assume and there are circumstances in which they place a higher priority on truth, restitution, reparations, or peace and security. In some circumstances, conflicts between retributive justice and these other goals may necessitate compromising the duty to prosecute or prioritizing the non-retributive aspects of post-conflict justice. For example, a fuller version of the truth is likely to emerge from non-retributive mechanisms like South Africa’s Truth and Reconciliation Commission – which offered amnesty in exchange for the confession of political crimes – than would be the case from adversarial trials in which the perpetrators have an incentive to conceal crimes. In addition, some victims might value reparations or some form of socioeconomic justice more than they do prosecution, particularly if trials take place in a foreign country according to procedures that are unfamiliar to them. In Rwanda, to illustrate, the international community spent over $1 billion for the International Criminal Tribunal for Rwanda and those convicted were imprisoned in facilities that met international standards, in contrast to many survivors who were dislocated from their communities and made indigent. Moreover, no provisions were made to provide anti-retroviral drugs to rape survivors who contracted AIDS as a result of the mass sexual violence associated with the genocide, whereas those incarcerated were provided medical care as required by international human rights law.
Finally, victims might prioritize peace and security over prosecution, particularly in the context of an ongoing war. This was the view of Acholi religious and traditional leaders in northern Uganda, who called on the ICC to rescind its arrest warrants for the leaders of the Lord’s Resistance Army, a rebel group that has abducted over 25,000 children as soldiers in a campaign of terror against the Acholi people whom they claim to represent. As an alternative to prosecution, community organizations have advocated amnesty combined with traditional reconciliation rituals to persuade the rebels to lay down their arms. That is because they saw the continuation of the war as the most serious threat to their rights, since at the time of the ICC’s involvement, 90% of the population of the three most war-ravaged districts had been internally displaced. Whereas proponents of an international duty to prosecute assert that the legal retribution for the gravest crimes is both in the interests of victims and essential for peace, critics argue that in cases like Northern Uganda, this is an externally imposed approach to justice that limits the agency of local communities to find their own solutions.
These debates over the “duty to prosecute” have played an important role in controversies surrounding the permanent International Criminal Court. Article 53 of the ICC’s founding Rome Statute allows the Prosecutor to defer an investigation or prosecution if he deems it is not to be in the “interests of justice” or in the “interests of victims.” Some critics of a mandatory duty to prosecute argue that the Prosecutor should construe those terms broadly in exercising his discretion. That is, the interests of justice should include the interests of peace and the Prosecutor should hold back from criminal proceedings likely to complicate peace negotiations. This should serve the interests of victims as well because the breakdown of a peace process is likely to undercut the security of victims and risk creating new ones. Proponents of a strong duty to prosecute argue that such an interpretation of the “interests of justice” test would violate the object and purpose of the Rome Statute, which is to prosecute those most responsible for the gravest crimes of concern to the international community. As a result, the “interests of justice” and the interests of victims should be construed as criminal justice. While the Office of the Prosecutor has officially adopted the latter position, the question of how he should apply that interpretation to the conflicts under his purview – all of which involve ongoing political violence – remains a matter of significant controversy.