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Keller on Peace versus Justice & the International Criminal Court

By Lawrence Solum

Linda M. Keller (Thomas Jefferson School of Law) has posted The False Dichotomy of Peace versus Justice and the International Criminal Court (Hague Justice Journal, Vol. 3, No. 1, p. 12, 2008) on SSRN. Here is the abstract:

The International Criminal Court (ICC) was created to end impunity for the international crimes of genocide, war crimes, and crimes against humanity. But can it insist that states reject trading peace for justice when the cost of refusal is measured in human lives?

Part I of this essay examines the interpretations of the ICC statute that might allow the ICC to defer to alternative methods of justice. It evaluates four possibilities: (1) acceptance of a UN Security Council request to suspend prosecution as a threat to international peace; (2) application of the principle of complementarity to render the ICC case inadmissible; (3) application of the ICC "ne bis idem" provision to block ICC proceedings; and (4) exercise of prosecutorial discretion.

Part II proposes criteria, based on international criminal justice theory and the literature on transitional justice, to guide the ICC in its determination of whether to defer to negotiated local justice methods.

This essay is based on a more extensive article analyzing the peace vs. justice dilemma in the ICC's investigation in Northern Uganda. See Linda M. Keller, "Achieving Peace With Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms," 23 Conn. J. Int'l L. 209 (2008) (available at http://ssrn.com/abstract=1018539).

Full post as published by Legal Theory Blog on February 18, 2009 (boomark / email).