Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court

Abstract

The question to what extent amnesties and pardons may bar criminal investigations or prosecutions under the Statute of the International Criminal Court (the Statute) has been left unresolved by the Rome process. This essay seeks to develop some general guidelines that may help the Court to address this problem, should it arise in a specific case. It suggests four basic principles to deal with the issue of amnesties and pardons: (i) the Court has interpretative autonomy to decide whether an amnesty or a pardon is permissible under the Statute; (ii) exemptions from criminal responsibility for the core crimes within the jurisdiction of the Court by amnesties or pardons should generally be considered incompatible with the Statute; (iii) prosecution by states and by the Court may be limited to the most serious crimes and the most responsible perpetrators (targeted prosecution); (iv) amnesties or pardons should, if it all, only be permitted in exceptional cases, namely where they are conditional and accompanied by alternative forms of justice.