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Essay II
Last Updated: 05/13/2011
Prosecution or Impunity? Is there an Alternative?
Marco Fanara

Marco Fanara analyzes the justice and peace relationship between prosecution and impunity, weighing the costs and benefits of both, seeking answers to the questions of whether states should seek ‘justice’ and prosecute, or grant impunity in the name of ‘reconciliation’? Are there alternatives? Utilizing the case study of Uganda and the ICC’s involvement therein, Fanara's essay presents arguments for and against both camps, working to answer the question of whether impunity acts as a barrier to lasting peace, or is it a crucial prerequisite?

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 [1] 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 [2] 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. [3]

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.[4]

The Principals further exclaim that these obligations apply irrespective of a State’s objective, be it to foster peace and reconciliation or otherwise.[5] More importantly, a State must abuse procedural rules to deflect compliance with these duties.[6] 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 Ju