Transitional justice: reconciling domestic amnesty with the universal jurisdiction of foreign states

Abstract

From the perspective of State sovereignty, it may be argued that a State should be allowed to decide freely how to deal with crimes committed on its territory, including by granting amnesties. However, under the principle of universal jurisdiction, all States have the power to prosecute perpetrators of international crimes regardless of the place where they were committed and regardless of the nationality of the victims or the perpetrators and, as a consequence, domestic amnesties may not be invoked as a bar to the universal jurisdiction of foreign courts over perpetrators of international crimes. One State cannot dictate how other States should react to those crimes. This article argues that although criminal prosecutions under the principle of universal jurisdiction are desirable and should be encouraged, considerations of peace and democratic transition in the territorial State have to be carefully calculated and that, therefore, criminal prosecutions by foreign prosecutors may need to be differed in favour of amnesty processes in the affected States. Guidelines to be followed in this balancing exercise are provided.

Keywords: Transitional Justice; Amnesty, International Crimes, Universal Jurisdiction