Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court

The question to what extent amnesties and pardons may bar criminalinvestigations or prosecutions under the Statute of the InternationalCriminal Court (the Statute) has been left unresolved by theRome process. This essay seeks to develop some general guidelinesthat may help the Court to address this problem, should it arisein a specific case. It suggests four basic principles to dealwith the issue of amnesties and pardons: (i) the Court has interpretativeautonomy to decide whether an amnesty or a pardon is permissibleunder the Statute; (ii) exemptions from criminal responsibilityfor the core crimes within the jurisdiction of the Court byamnesties or pardons should generally be considered incompatiblewith the Statute; (iii) prosecution by states and by the Courtmay be limited to the most serious crimes and the most responsibleperpetrators (targeted prosecution); (iv) amnesties or pardonsshould, if it all, only be permitted in exceptional cases, namelywhere they are conditional and accompanied by alternative formsof justice.