Prosecution or Impunity? Is there an Alternative?
Author: Marco Fanara
Originally Published at Peace and Conflict Monitor on: 05/13/2011
One of the most decisive challenges facing transitional justice is the issue of a states’ international duty to prosecute gross violations of human rights as a potential counterweight to impunity in peace negotiations. It would seem that states who find themselves in this predicament must choose between prosecuting those responsible in the name of ‘justice’, in accordance with their international duty, or grant impunity to those responsible as a precondition to peace and in the name of ‘reconciliation’. Are there alternatives to achieving peace, or is it one or the other, prosecution or impunity? This essay will present and analyze arguments from both camps. In seeking to answer this question, we will utilize the case study of Uganda and the ICC’s involvement therein. More specifically, does the ICC’s arrest warrants act as a hindrance to peace, or rather does it facilitate it? In other words, does impunity act as a barrier to reconciliation or a crucial prerequisite? (Huyse 1996:10). Before we can properly delve into and engage in the aforementioned discourse, we must first discern the legality of impunity in respect and in relation to a state’s international duty to prosecute.
Numerous international treaties  impose an obligation on States to prosecute or extradite those who commit the most heinous crimes, namely crimes against humanity, war crimes, and genocide or other serious violations of international humanitarian law. (ICTJ, 2010; Human Rights Watch, 2010; PMEDPP, 2009). Therefore, one would righty assume a State’s adoption of any amnesty law would be incompatible with international law and international customary law, and thus, in violation of said laws (Shelton & Cengage, 2005; ICTJ, 2010; PMEDPP, 2009). Moreover, many legal scholars also argue such crimes constitute jus cogens crimes, as such they cannot be superseded by any State law that may aim to denigrate such crimes and grant impunity. (ICTJ 2010) Under the Rome Statute, cases may be undertaken by ICC  if a State fails to undertake the investigation and prosecution of an individual suspected of committing serious human rights violations or does so but in a manner designed to shield the person from criminal responsibility or conducted in a way that is inconsistent with intent to bring that person to justice. 
The United Nations has stated in the past that it will not acknowledge peace agreements containing such amnesties, nor will such amnesties obstruct prosecution by UN created or assisted tribunals (PMEDPP, 2009:5). The UN Updated Principles to Combat Impunity notes that,
States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly … by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.
The Principals further exclaim that these obligations apply irrespective of a State’s objective, be it to foster peace and reconciliation or otherwise. More importantly, a State must abuse procedural rules to deflect compliance with these duties. Permissible amnesties can be found in Article 6(5) of the Additional Protocol II of the Geneva Conventions. Said Article allows for amnesty at the end of hostilities, limited to those individuals, including combatants, who have not violated international law and are found to be in accordance with several other stipulations (see endnote [i]) (Ibid, 2009).
Those who argue in favour of prosecution over impunity do so from a variety of perspectives. Orentichter (2007:5) portrays international law as a potential counterweight to impunity; albeit, not a ‘panacea’ she admits, but rather another weight added to the scales on the side of justice. Mathews (2002) and Minow (1998) (in Parmentier, 2003:205) postulates that in order to break through the walls of impunity and to move to a ‘culture of accountability’, offenders must be held accountable. A ‘climate of impunity’ is perpetuated when justice and accountability are foregone (Katshung. 2006). Moreover, by holding those accountable, the idea of justice and moral order is emphasized and established, as are the notions of rule of law and human rights (Ibid, 2003:206, Huyse, 1996, Katshung, 2006). Huyse (1996:4) concurs, “to replace moral order requires that ‘justice be done’… there is a moral obligation to victims to prosecute those responsible”. Orentlichter (2007:6) suggests prosecution is requisite because it offers to restore the fundamental norms of human decency and to secure the moral integrity of society in addition to deterring future crimes (Dinesh, 2009, Huyse, 1996, Orentlicher, 2007). When amnesty is granted by governments, Walsh (1996:115) worries it signals a lack of concern to the victims. The International Center for Transitional Justice is sceptical that by promoting impunity and undermining accountability, stability and reconciliation will not be accomplished; rather, true reconciliation requires accountability, of which prosecution is part and parcel. The UN Commission on Human Rights and its Sub-Commission argued in a recent report on the Consequences of Impunity, that one of the main reasons that there is a continuation of grave violations of human rights throughout the world, is in fact impunity. (Shelton & Cengage, 2005). Furthermore, in 2000 the UN Secretary General summarized UN policy as:
While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal conflict, the United Nations has consistently maintained the position that amnesty cannot be granted in respect for international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law (in Orentlichter, 2007:9).
Speaking specifically to the ICC’s involvement in Uganda, since the ICC’s involvement many former rebels and high-ranking LRA brigadiers have turned themselves in, leaving some to argue that the ICC has increased pressure on LRA to defect (Moy, 2006). Clark (2010) agrees, noting that the ICC’s involvement has encouraged peace talks. Ssenyonjo (2007:77, as cited in Clark, 2010:145), suggests “…to give amnesty to individuals indicted by the ICC over the most serious crimes of concern to the international community as a whole would compromise the effectiveness of the ICC and bring questions about whether the ICC can really carry out its mandate”. Others agree, if ICC prosecutions are overridden by peace processes and the granting of amnesty, its inherent value as a deterrent system is endangered (Grono, 2006). To suggest that peace is dependent on the ICC withdrawing its warrants allows Kony and his LRA leadership to dictate and control the conflict (Clark, 2010:147).
Proponents for amnesty argue prosecution offers not incentive to end hostilities (Shelton & Cengage, 2006), rather it protracts conflicts (Moy, 2006). Riveros (2009:8) adds, “it will be more difficult for the members of illegal armed groups to sit at the negotiations table if they know they will be strictly punished”. The issue of amnesty was advisedly left open in the Rome Statute, appearing vaguely in Art.53 (1)(c). (Moy, 2006: 270). Further, the ICC functions on a system of complementarity (which, in other words suggests that the ICC efforts are supposed to complement national efforts rather than displace them); as such, Uganda’s right to utilize its Amnesty Act of 2000() does not void their referral to the court, nor their jurisdiction (Ibid, 2006:274). However, at present, ICC warrants have not deferred and still stand. Clark (2010:141) insists, “peace must come before justice and that the ICC’s arrest warrants undermine prospects for peace in Uganda”. Justice Onega, Uganda’s Amnesty Commission chairperson remarks, “‘If the ICC goes ahead with its investigation, it is going to jeopardise the amnesty process. In addition, it is going to compromise the search for a peaceful resolution to the conflict’ (Refugee Law Project, 2005b:22 in Clark, 2010:145).
Yet another argument proposed by opponents of the ICC’s involvement suggests that the Court’s involvement overshadows and undervalues more traditional, indigenous forms of justice and/or reconciliation (Ibid, 2010:141). ARLPI() and Acholi community leaders are among those who strongly oppose ICC involvement, arguing that the ICC places their “children at greater risk and threatens to further damage their cultural identity and beliefs”. Traditional justice, based on restorative principles, is widely supported as a favourable alternative to the punitive approach of the Court (Baines, 2005 in Clark, 2010:148). Southwick (2005:115), for his part, contributes, “…for the ICC to impose its version of justice on a situation where the affected community has developed a different form adapted to their most fundamental needs is simply wrong”. Lundy and McGovern (2006:1) suggest a grassroots approach to transitional justice should be regarded as an intrinsic part of this agenda.
In conclusion, we have discussed the legality of amnesty, we have been presented with two opposing viewpoints on the ICC’s involvement in prosecuting those responsible for gross violations of human rights, more specifically in the Ugandan context, and now we may offer a third, often overlooked alternative to resolving such conflicts. Orentlicher (2007:9) suggests that there is no universally relevant formula for transitional justice given the wide range of differing experiences and cultures. Many argue that ‘no one size fits all’ and that it is crucial to consider the local culture and traditions when developing a response to any conflict (PMEDPPM, 2009:7). Clark (2010:141) concurs and suggests a more holistic approach that combines international (retributive) justice and traditional (restorative) justice, viewing them as complementary forms of justice, as opposed to alternatives to each other. Biggar and Bloomfield (2002:168-9; 2006:29 in Clark, 2010:148) believe that any such tension that exists between peace and justice may be reduced significantly if only justice is viewed and understood to include a wider range of alternatives than criminal trials alone. Yet, justice must also be seen to have been done, thus perceptions of international criminal courts, such as the ICC, are critical (Fletcher & Weinstein, 2004:30 in Clark, 2010:144). As former UN Secretary General, Kofi Annan has commented, “justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how’ (Annan, 2004 as cited in Grono, 2006).
Indeed, there are alternatives to ICC prosecution, such as truth commissions, hybrid tribunals, truth-seeking processes, reparations, and similar options (Shelton & Cengage 2006). Albeit not identical to criminal prosecution, many of the above noted mechanisms encompass similar objectives to what justice is intended to fulfil, such as deterrence, punishment, prevention, and rehabilitation (Ibid, 2006). Many experts agree that when prosecution is unfeasible, as may be the case in Uganda, the aforementioned mechanisms are better suited to accomplish the goals of justice (Ibid,2006).
Lastly, justice (by way of ICC prosecution) and peace (by way of amnesty/impunity) should only be traded off against the other when there is no other viable alternatives (such as those noted above), when and only when the benefits of peace outweigh the harm that may be caused by accountability. (Grono, 2006). Riveros (2010:14) offers our closing remarks: “Justice in this case would not be perfect, but it might be the only alternative to stop gross violations of human rights and to change the history and the future of a country.
[i] The granting of limited amnesty must respect the following conditions: Where such measures do not violate international law obligations, amnesty should be linked with non-judicial mechanisms of accountability (i.e. truth commissions), and only available to less serious offenders (PMEDPP, 2009:5).
 The 1949 four Geneva Conventions. In addition, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (ICTJ 2010). Further, international human rights law, such as the ICCPR, the ICESCR Optional Protocol7, or the American Convention on Human Rights, accord to victims of gross human rights violations the right to an effective remedy for the breaches they have suffered. Finally, customary international law with regard to crimes against humanity and war crimes or duties arising from the implementation of the Rome Statute may set forth an obligation for the State and the international community to prosecute perpetrators. (PMEDPP 2009).
 Rome Statute, art. 17.
 UN Principles to Combat Impunity, adopted February 8, 2005, E/CN.4/2005/102/Add.1, principle 19.
 Ibid., principles 24 and 19.
 Ibid., principle 22.
 According to Article 53(1)(c), an ICC prosecutor deciding on the exercise of jurisdiction must consider whether, “taking into account the gravity of the crime and interests of the victims, there are nonetheless substantial reasons
to believe that an investigation would not serve the interests of justice.”
 Under Article 17, the ICC must always defer to national proceedings, unless a state is “unwilling or unable genuinely to carry out the investigation or prosecution” (Moy, 2006: 273).
 The national Amnesty Act of 2000, proposed by victims, allows offenders (regardless of rank) to return to their community, free from prosecution if they renounce violence (Clark, 2010:145).
 The Acholi Religious Leaders Peace Initiative (ARLPI) (Clark, 2010:148)
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Bio: Marco Fanara is a Masters Student in the International Law and Human Rights Programme at the University for Peace.