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Transitional justice and the International Criminal Court – in "the interests of justice"?

30-09-2007 Article, International Review of the Red Cross, No. 867, by Drazan Ðukic

Transitional justice encompasses a number of mechanisms that seek to allow post-conflict societies to deal with past atrocities in circumstances of radical change. However, two of these mechanisms, i.e. truth commissions and criminal processes, might clash if the former are combined with amnesties. This article examines the possibility of employing the Rome Statute’s article 53 so as to allow these two mechanisms to operate in a complementary manner.

   
Drazan Ðukic
holds an LL M from both Tilburg University and the University Centre for International Humanitarian Law, Geneva. 

 
Abstract 

Transitional justice encompasses a number of mechanisms that seek to allow postconflict societies to deal with past atrocities in circumstances of radical change. However, two of these mechanisms – truth commissions and criminal processes – might clash if the former are combined with amnesties. This article examines the possibility of employing the Rome Statute’s Article 53 so as to allow these two mechanisms to operate in a complementary manner. It considers three arguments – an interpretation of Article 53 in accordance with the relevant rules on treaty interpretation, states’ obligations to prosecute certain crimes and the Rome Statute’s approach to prosecutorial discretion – and concludes that Article 53 is ill-suited to accommodate truth commissions in conjunction with amnesties.  


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