Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. 1 (2019).
Abstract: In the aftermath of crimes against humanity and gross violations of human rights, should international legal institutions promote the use of criminal sanctions or instead support forgiveness and reconciliation? Either response is better than silence, but comparing prosecutions and reconciliatory steps brings tough choices, both legally and politically. Adversarial criminal prosecution holds the promise of generating facts, holding individuals accountable, and deterring future horrific conduct, but criminal trials also can be time-consuming, expensive, inevitably selective, remote in time and location from the lives of those most affected, and indifferent to the goals of social peace and personal healing. Truth and reconciliation commissions, exemplified by South Africa’s effort following the end of Apartheid, represent an alternative justice mechanism that pursues truth-telling and opportunities for reconciliation, rather than punishment. Such methods can provide occasions for individual wrongdoers to apologize, and for victims and survivors to forgive, but these methods can also be marred by corruption, compromise, and an appearance of condoning terrible acts. Trading truth for punishment may offer a predicate for social reconciliation, but unconditional amnesties following terrible violence — and pardons following flawed trials — likely signal political pressures to sacrifice justice. The choice among approaches is left open in the design of the International Criminal Court (“ICC”), which seeks to encourage domestic legal systems to pursue international crimes against humanity, genocide, and other gross violations of human rights within their national justice systems. Through its notion of “complementarity,” the ICC seeks to localize international norms through a relationship between domestic courts and a permanent Court with potential jurisdiction across the world; the ICC actually loses its authority to proceed when the domestic jurisdiction does so in an adequate way. To set the standards for international justice — and to build capacity to pursue justice in nations where mass violence occurs — should the international institution treat truth commissions, grants of amnesty, and other alternatives to prosecution as satisfying the predicate of national action that in turn deprives the ICC of authority to proceed? This Article analyzes the debates around alternatives to trials in fulfilling complementarity and advances recognition of some domestic restorative justice processes under specified criteria. The issues this Article explores have implications not only for international criminal justice but also for alternatives to adjudication in national and local responses to any criminal conduct.