Abstract
With its express intention ‘to put an end to impunity’, the International Criminal Court (ICC) faces a substantial challenge in the shape of conditional amnesties granted in future national truth commissions (TCs)—a challenge that invokes fundamental considerations of criminal justice ethics. In this article, I give an account of the challenge, and I consider a possible solution to it presented by Declan Roche. According to this solution the ICC-prosecutor should respect national amnesties and prosecute and punish only those perpetrators who have refused to cooperate with the TC. I argue, however, that this compromise is untenable. As a general rule, if we justify the ICC on grounds of deterrence we should not accept conditional amnesties granted in national TCs.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Thus, one of the leading figures in the RJ movement, Howard Zehr, has repeatedly described it as presenting a new paradigm in criminal justice ethics (cf. Zehr 2005). However, it is in fact controversial whether RJ is genuinely a third theory or rather a revision of traditional consequentialism. As I have argued elsewhere (Holtermann 2009b), RJ’s relationship to traditional punishment is considerably more ambivalent than indicated by the rhetoric of its proponents. I will get back to this issue below. Suffice to say here that RJ is a third theory in the sense that it diverges from the punitive apriorism of traditional theories of criminal justice.
A clear sign of this development was the adoption by the UN of a set of ‘Basic Principles on the use of restorative justice programmes in criminal matters’ in 2002.
In this sense, the assignment undertaken here resembles a hard case in the Dworkinian sense, that is, a dilemma facing a judge (or prosecutor) when the law proper: ‘does not discriminate between two or more interpretations of some statute or line of cases. Then he must choose between eligible interpretations by asking which shows the community’s structure of institutions and decisions—its public standards as a whole—in a better light from the standpoint of political morality’ (Dworkin 1986, p. 255f).
E.g., in 2000 then president Bill Clinton endorsed the ICC in this way: ‘I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide’ (Clinton 2000).
Thus, I side with Dugard (2002) against Roche in considering the so-called complementarity principle in Article 17 an ill-suited starting point. In contrast to the international tribunals for the former Yugoslavia and Rwanda, the ICC does not have primacy over national courts. It is supposed, instead, to complement them in the sense that the Court shall determine that a case is inadmissible where: “[t]he case has been investigated by a State which has jurisdiction over it and has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” (Article 17(1)(b)).
However, as Dugard notices (2002, p. 702), in the cases under consideration here states’ decision not to prosecute is indeed the result of an unwillingness to prosecute: they have deliberately granted amnesty instead.
Roche suggests five elements that distinguishes legitimate TCs from sham commissions created in order to shield perpetrators from prosecution: ‘that victims support its establishment; that amnesties are granted conditionally; that widespread participation is encouraged, that efforts are made to assist victims; and that the truth commission contributes to a wider process of reconstruction’ (Roche 2005, p. 575).
Perhaps Roche would agree to this particular claim. As a matter of fact he is quite silent on the wider theoretical implications of his suggestion. To be sure, he does, as already mentioned, hint at the ‘ecumenical’ character of his solution. And he does sketch how respecting the amnesties would be in general accordance with a restorative conception of justice. But strictly speaking, apart from this, Roche merely suggests a set of actions to be undertaken by the ICC and national TCs in conjunction in specific cases of mass atrocities. Which theories of criminal justice would ultimately support which, if any, of these actions is a question that is left mostly in the dark. And, in particular, Roche does not discuss whether this suggested course of action is ultimately reconcilable with the ICC being an institution that has generally made it its goal to prosecute and punish perpetrators.
Though some prefer to avoid entirely the word “punishment” and speak, instead, of e.g. “restorative sanction” (Walgrave 2002: 194). However, the responses they recommend in these latter cases include for instance incarceration and thus resemble traditional punishment for all practical purposes. For a critical discussion of the general problems confronting RJ theories on the issue of punishment, see my (Holtermann 2009b).
Even archbishop Desmond Tutu who, as chair of the SATRC, vigorously defended a reconciliatory approach to perpetrators, has expressed regret that South Africa never honoured its promises and prosecuted those perpetrators who did not cooperate with the commission (Tutu 2005).
And this is also the one on which Roche must rely.
Whether that compromise is ultimately feasible is a question that I will deal with in part III below.
This discussion perhaps oversimplifies matters somewhat. Presumably it is anything but pleasant for a perpetrator to confess to her sins in front of victims or relatives of victims. The crucial point, however, is that there is a marked difference between the unpleasantness of witnessing and of being punished, and that the unpleasantness of witnessing is too small for it to work as a deterrent, while the other can. Incidentally, this goes for the two options in the “federal day” example as well. And RJ proponents must themselves consider punishment more unpleasant than testimony if they are to defend that the threat of punishment will work as an incentive.
How much exactly and whether it would ultimately outweigh the costs of producing it is a question that I do not discuss here.
Actually, it could reasonably be questioned if these exact punishments can even be justified on restorative grounds. At least if the punitive level resembles that of traditional tribunals. Strictly speaking, the procedure Roche suggests justifies punishment only as a means to provide an incentive for perpetrators to testify before a TC. Thus, on this account the punishment only needs to be sufficiently hard as to actually serve this purpose. And this could easily imply much milder punishments than those traditionally handed out by mass atrocity tribunals. After all, who would not testify in order to avoid, say, ½ a year in prison? Thus, by hypothesis, punishment superseding this level would be unjustified even on grounds of RJ. This, however, is a problem I mention only to put aside here.
Of course, this does not in itself tell us whether proponents of deterrence should continue to feel embarrassed about the lack of resources vis-à-vis an overabundance of perpetrators. This, however, is a different question the answer to which depends, essentially, on considerations of equality under law, and which has a bearing, rather, on the general discussion for and against the ICC. But the argument so far has shown that even if we did not have to choose but could punish all perpetrators, it would still be wrong, on either of the classical positions, to punish these specific perpetrators in accordance with Roche’s guidelines.
We should be aware, however, of a certain irony attached to this use of the anti-paternalism argument. In the context of domestic crime the thrust of the anti-paternalism of RJ is usually directed against the state. It is the state that steals the conflicts from the people. If the argument is to carry any weight in the context of mass atrocities, however, the state suddenly becomes the bereaved party while the international community becomes the villain. I shall leave aside the intricate question of whether this transfer of the anti-paternalism is entirely unproblematic for proponents of RJ.
For instance, the ICC-prosecutor’s steps to issue an arrest warrant for Sudan’s president has been accused by the African Union of jeopardising the difficult peace process in the region, http://news.bbc.co.uk/2/hi/africa/7517393.stm (accessed on November 26, 2008).
An additional problem is that in the long run, this policy could undermine entirely attempts to deter crime because it could further a dramatic increase in the number of TCs at the expence of ICC trials and punishments. If the ICC should respect TCs on grounds of national decisions it would create an extra incentive (besides truth, reconciliation and reparation) for national interests to further TCs: the prospects of moving citizens beyond the reach of the ICC. That this mechanism is not entirely ficticious was illustrated recently in Uganda. Here, the ICC-arrest warrant for top leaders of the Lord’s Resistance Army led to hastily organized ‘TCs’ in order to make the ICC back down: http://www.time.com/time/world/article/0,8599,1682747,00.html (accessed on November 26, 2008).
This interpretation would accord well with the arguments put forward by Roche that refer to the superior ability of TCs to produce truth, restore victims, and promote reconciliation—while offering no counter arguments against the possibility of producing a deterrent effect through punishment. This could be taken to imply that deterrence is basically acceptable and should be our main target and that we should pursue TCs only in those cases where it would actually have better consequences to do that.
Thomas Aquinas famously considers one such case: ‘Suppose a siege, then a decree that the city gates are to be kept closed is a useful general measure for the public safety. Yet say some citizens among the defenders are being pursued by the enemy, the cost would be heavy were the gates not to be opened to them. So opened they are to be, against the letter of the decree, in order to defend that very common safety the ruling authority had in view’ (Thomas 1964, 1a2æ. 96, 6).
Though, this presumption should by no means be considered a matter of course as advocates of RJ tend to do. Several critics, notably Acorn (2004) and Brudholm (2008), have argued convincingly that TCs can actually intensify victims’ harms rather than repair them. Thus, the agenda of forgiveness and reconciliation habitually (and perhaps even inherently?) associated with TCs has a tendency to render illegitimate and guilt-ridden victims’ natural and morally legitimate feelings of resentment. In addition, when comparing trials and TCs there is a tendency to describe the former in implausibly restrictive terms while the latter is described in broad inclusive terms. Thus, e.g. Roche emphasises that genuine TCs should not simply settle for emotional reparation of victims’ harms that might become available through perpetrator testimony. They should also perform symbolic acts of reparation and provide financial reparation to victims (2005: 578). However, these measures are surely equally available whenever trial and punishment has been chosen as the appropriate way of dealing with the past. In fact, in accordance with the Rome Statute’s Article 79 a Trust Fund for Victims was founded in 2006.
The 2008 budget appropriations for the ICC alone amounted to €90,382,100 (International Criminal Court 2008, p. 18).
As in the case of the ICC whose capacity to actually prosecute and punish even a small fragment of perpetrators of mass atrocities is often questioned by its critics (cf. e.g. Tallgren 2002).
Otherwise, we would be home free by now considering those already punished in ICTY and ICTR. And we obviously are not.
See also (Dugard 2002, pp. 702–03) quoted above.
As a matter of fact I do believe it possible in the long run for the ICC to create a general deterrent effect strong enough to justify the costs of trial and punishment. Regrettably, this effect will never be so strong as to satisfy the post-Holocaust promise “Never again!” but less will definitely do. For a defence of that claim, see Holtermann (2009a) and Ellis (2001, 2010).
In Dworkinian terms we would then have given up on the hard case at hand. We have abandoned entirely the attempt to provide an interpretation that “shows the community’s structure of institutions and decisions in a better light from the standpoint of political morality.” (Dworkin 1986: 255f) Instead we have proposed a whole new institutional setup. Again, from the point of view of general philosophy this is surely a legitimate undertaking. But it is useless as a piece of advice to the ICC prosecutor qua ICC prosecutor.
Some even question that these concepts make sense at all in the context of mass atrocities (Tallgren 2002: 573). This claim, however, takes us back to a general discussion of the ICC altogether, and this is not the issue here.
References
Acorn, A.E. 2004. Compulsory compassion: A critique of restorative justice. Vancouver: UBC Press.
Aristotle, 1987. Nichomachean ethics. In A new Aristotle reader, ed. J.L. Ackrill. Princeton, N.J.: Princeton University Press.
Braithwaite, J. 1989. Crime, shame and reintegration. Cambridge: Cambridge University Press.
Braithwaite, J. 2002. Restorative justice & responsive regulation. Oxford; New York: Oxford University Press.
Brudholm, T. 2008. Resentment’s virtue: Jean Améry and the refusal to forgive. Philadelphia, PA.; Chesham: Temple University Press; Combined Academic. [distributor].
Christie, N. 1977. Conflicts as property. The British Journal of Criminology 17(1): 1–15.
Clinton, B. 2000. Statement by the president, http://clinton4.nara.gov/library/hot_releases/December_31_2000.html, accessed on November 26, 2008.
Dignan, J. 2003. Towards a systemic model of restorative justice. In Restorative justice and criminal justice: Competing or reconcilable paradigms?, ed. A. Von Hirsch, J. Roberts, A.E. Bottoms, K. Roach, and M. Schiff, 135–156. Oxford; Portland, OR: Hart.
Dugard, J. 2002. Possible conflicts of jurisdiction with truth commissions. In The Rome Statute of the International Criminal Court: A commentary, ed. A. Cassese, P. Gaeta, and J.R.W.D. Jones, 693–704. Oxford: Oxford University Press.
Dworkin, R. 1986. Law’s empire. Oxford: Hart, 1998.
Ellis, A. 2001. What should we do with war criminals? In War crimes and collective wrongdoing: A reader, ed. A. Jokic, 97–112. Malden, MA; Oxford: Blackwell Publishers.
Ellis, A. 2010. War crimes, punishment and the burden of proof. Res Publica 16(1). doi:10.1007/s11158-010-9110-6.
Holtermann, J.v.H. 2009a. A “slice of cheese”—A deterrence-based argument for the International Criminal Court. Human Rights Review. doi:10.1007/s12142-009-0139-x
Holtermann, J.v.H. 2009b. Outlining the shadow of the axe—On restorative justice and the use of trial and punishment. Criminal Law and Philosophy 3(2): 187–207.
Hughes, L.N. 1997. Don’t make a federal case out of it: The constitution and the nationalization of crime. American Journal of Criminal Law 25(1): 151–163. Fall 1997.
International Criminal Court. 2008. Twelfth diplomatic briefing of the International Criminal Court.
Johnstone, G. 2002. Restorative justice: Ideas, values, debates. Cullompton, Devon, UK; Portland, OR: Willan Publishers.
Marshall, T.F. 2003. Restorative justice: An overview. In A restorative justice reader: Texts, sources, context, ed. G. Johnstone, 28–45. Cullompton, UK; Portland, OR: Willan Publishing.
May, L. 2005. Crimes against humanity: A normative account. Cambridge, UK; New York: Cambridge University Press.
McCold, P. 2000. Toward a holistic vision of restorative juvenile justice: A reply to the maximalist model. Contemporary Justice Review 3(4): 357–414.
Minow, M. 2000. The hope for healing: What can truth commissions do? In Truth vs. justice: The morality of truth commissions, ed. R.I. Rotberg, and D. Thompson, 235–260. Princeton: Princeton University Press.
Roche, D. 2005. Truth commission amnesties and the International Criminal Court. The British Journal of Criminology 45(4): 565–581.
Rotberg, R.I., and D.F. Thompson. 2000. Truth vs. justice: The morality of truth commissions. Princeton, NJ: Princeton University Press.
Tallgren, I. 2002. The sensibility and sense of international law. European Journal of International Law 13(3): 561–595.
Thomas, A.S. 1964. Summa Theologiæ. Latin text and English translation, introductions, notes, appendices and glossaries. London: Blackfriars in conjunction with Eyre & Spottiswoode.
Tutu, D. 2005. Tutu urges apartheid prosecutions, BBC News, Africa, http://news.bbc.co.uk/2/hi/africa/4534196.stm. Accessed 26/11/08.
Van Ness, D.W. 2002. Creating restorative systems. In Restorative justice and the law, ed. L. Walgrave, 130–149. Devon, UK: Willan Publishing.
Walgrave, L. 2002. Restorative justice and the law: Socio-ethical and juridical foundations for a systemic approach. In Restorative justice and the law, ed. L. Walgrave, 191–218. Devon, UK: Willan Publishing.
Wippman, D. 1999. Atrocities, deterrence, and the limits of international justice. Fordham International Law Journal 23: 473–488.
Wringe, B. 2006. Why punish war crimes? Victor’s justice and expressive justifications of punishment. Law and Philosophy 25: 159–191.
Zehr, H. 2005. Changing lenses: A new focus for crime and justice. Scottdale, PA: Herald Press.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Holtermann, J.v.H. The End of ‘the end of impunity’? The International Criminal Court and the Challenge from Truth Commissions. Res Publica 16, 209–225 (2010). https://doi.org/10.1007/s11158-010-9111-5
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11158-010-9111-5