Abstract
The relationship between the International Criminal Court (hereafter referred to as ICC) and truth commissions is one that has often been described as conflicting and irreconcilable. Those in favor of strict retributive justice argue that the essence of the ICC toward ending impunity is such that it cannot exist harmoniously with truth commissions. This chapter proposes to examine if such assertions are in fact credible or if they can be negated on the basis of the intended meaning afforded to certain provisions of the Rome Statute.
In surveying the expanding landscape of accountability, the coexistence between the ICC and truth commissions merits a critical examination, particularly in light of the ever-increasing number of transitional societies in the world. This leads one to ask – does the truth commission have a place, in the eyes of the ICC, in the drive toward the collective establishment of the rule of law-based societies?
This issue will be addressed by initially examining the provisions of the Rome Statute, namely, those addressing complementarity, admissibility, and prosecutorial discretion. Following from this, the concept of “justice” will be dissected in both the narrow and broad sense to shed light on the intentions of the use of the term within the Rome Statute – is the ICC only concerned with retributive justice or is it willing to go beyond it? Following from this, the issue of transitional societies and what defines them will be examined. The basic concept of a truth commission is then critically discussed in an attempt to see how it fits within the terms of “justice” envisaged by the ICC. A key argument in this chapter is that a broad interpretation of “justice” as contained in the Rome Statute cannot be confined to retributive justice; it thus provides adequate space for truth commissions to exist alongside the ICC.
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Notes
- 1.
Luis Moreno Ocampo, first Chief Prosecutor of the ICC, 2003–2012.
- 2.
The State Parties to the Rome Statute as of 31 August 2017, taken from https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx El Salvador, are the most recent State Party as of 3 March 2016.
- 3.
Including the United States of America.
- 4.
Unfortunately the records of the Preparatory Committee do not indicate which delegations were in favor of such measures.
- 5.
32: The Chamber also notes that when a State with jurisdiction over a case is investigating, prosecuting, or trying it, or has done so, it is not sufficient to declare such a case inadmissible. The Chamber observes on the contrary that a declaration of inadmissibility is subject to a finding that the relevant State is not unwilling or unable to genuinely conduct its national proceedings in relation to that case within the meaning of Article 17(1)(a) to (c), (2), and (3) of the Statute.
- 6.
The decision does not include the word “criminal” adjacent in its reference to prosecution, investigation, or trial. Of equal importance is the explicit use of “or” as opposed to “and” at this juncture as this would imply that the Chamber does not recognize that an investigation should be means to or automatically infer a criminal prosecution – providing further support for one’s argument in favor of a broad interpretation in Section (a)(ii).
- 7.
See also for a contrary view: Human Rights Watch, Policy Paper (2005, p.4):
Human Rights Watch believes that the construction of the phrase “in the interests of justice” that would be consistent with the object and purpose of the Rome Statute as shown in the preamble would be a narrow one.
- 8.
This temporal stipulation would appear to be in direct conflict with the overall demarcation and concept of transitional justice, which may be concerned with post-conflict periods, periods immediately preceding the ceasing of conflict, and periods during which conflict is still in existence.
- 9.
Freeman’s use of the term “redress” makes implicit reference to the possibility of referral of certain cases to a criminal justice system.
- 10.
Freeman (2006) comments on his definition:
…the definition is not normative in character. It is not a description of what truth commissions should be. It is descriptive only. Its singular aim is to improve …our collective understanding of the truth commission phenomenon.
- 11.
Citing United Nations Security Council Report (2008b) in reference to the US abstinence rationale that acceptance of such an application would “send the wrong signal to Sudanese President Al-Bashir and undermine efforts to bring him and others to justice.”
- 12.
“It is more convincing to argue that Article 17(1)(a) and (b) allows not only typical criminal investigations, but also applies to other forms of investigation.”
- 13.
This aspect of truth commissions interacting with criminal and retributive justice warrants further discussion.
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Mc Eleney, K.L. (2018). The Relationship Between the International Criminal Court (ICC) and Truth Commissions. In: Andreopoulos, G., Barberet, R., Nalla, M. (eds) The Rule of Law in an Era of Change. Springer Series on International Justice and Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-89908-4_6
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