Impunity, National Justice and Foreign Courts

Abstract

Truth and reconciliation commissions cannot act as substitutes for the courts, which alone have jurisdiction to establish individual criminal responsibility, assess guilt and, as appropriate, pass a sentence. Cherif Bassiouni, the former UN chief investigator in ex-Yugoslavia, said ‘There cannot be peace without justice. When people feel aggrieved, they cannot reconcile’.¹ The Joinet report recalled the primacy, in principle, of national justice, subject to some conditions:

It shall remain the rule that national courts normally have jurisdiction, particularly when the offence as defined in domestic law does not fall within the terms of the international court. International criminal courts shall have concurrent jurisdiction where national courts cannot yet offer satisfactory guarantees of independence and impartiality, or are physically unable to function.²