Domestic amnesty for international crimes and the icc prosecutor: when to exercise restraint in the ‘interests of justice’?

Abstract

The provisions of the preamble and article 17(1)(a) of the Rome Statute imply that the Statute excludes national amnesties for international crimes and that, accordingly, such amnesties do not bar the jurisdiction of the ICC over a crime. From a practical point of view, however, a difficulty may arise when the ICC wants to exercise jurisdiction and bring perpetrators of international crimes to justice while an amnesty law has been passed in the country where the crimes were committed and the prevailing political situation in that country is that any foreign interference is likely to destabilise a transition in the affected State. In these situations the ICC Prosecutor may be required to exercise restraints in order to allow the territorial State to move forward. This article suggests new guidelines which the ICC Prosecutor should take into account when deciding whether or not to institute a prosecution in relation to a person who has benefited from an amnesty law in his home State.

Keywords: Amnesty, international crimes, ICC, Rome Statute, interests of justice