International criminal law is at a crossroads; how can it reconcile its desire to punish crimes against humanity with the use of domestic amnesties for achieving peace? This article from Ethics and Politics argues that the International Criminal Court’s attitude towards domestic legal amnesties for international crimes will determine the extent to which international law embraces its role in embodying the ideals of democratic accountability and human rights. If international law does not distinguish itself by broadening its definition of justice beyond mere retribution and punishment, it risks losing the relevance and prominence it has fought so hard to achieve.
The conflict in northern Uganda is an illustrative case. In 2005, the International Criminal Court (ICC) indicted the rebel leader Joseph Kony on war crimes and crimes against humanity, authorizing his arrest and extradition to The Hague. Nevertheless, Uganda’s President Museveni, on whose referral the Court had begun proceedings, declared his intention not to enforce the warrant. Moreover, two years later, he offered Kony full and unconditional amnesty for his crimes. The situation is now in stalemate, with the ICC refusing to withdraw its indictments, Uganda refusing to act upon the existing warrants, and Kony refusing to negotiate when his personal immunity is not assured.
In cases like these, a legal and political norm has emerged against amnesty, even when it is offered by the country in question, on the basis that it encourages a culture of impunity. This has significant implications for international law and the ICC’s role within it:
- It exacerbates existing tensions over national sovereignty in a globalizing world
- It imposes an unfunded mandate on poor countries to pursue unceasingly those charged with war crimes
- It undermines the ICC’s contention it is only a legal body, transcendent of politics; revealing it instead to be another international agent advocating for changes in state behaviour.
In adopting this anti-impunity norm, the international community misunderstands the role of amnesties. Rather than focusing on the function of justice to punish, more attention should be given to the importance of enforcing accountability. While fighting impunity is part of any effort to institutionalize a regime of accountability, it is not the most significant part. The process of justice can often be as critical as the outcome, and denying the possible positive contributions domestic amnesties can make to conflict resolution is shortsighted.
Crimes against humanity know no nationality. As such, the ICC must operate according to a different normative framework. In rethinking its role as a provider of justice, it should:
- Adhere to the emerging consensus on the universal nature of human dignity
- Operate with pragmatism and flexibility in the context of its anti-amnesty policy
- Move beyond a narrow focus on just retribution
- Instead adopt as its goal the ideals of democratic accountability.
