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Robert H. Mnookin & William Marra, Rethinking the Tension Between Peace and Justice: The International Criminal Prosecutor as Diplomat, 18 Harv. Negotiation L. Rev. 145 (2013).

Abstract: Imagine you are the Prosecutor of the International Criminal Court. The year is 2014, and the war-weary Afghani people have struck a tentative deal to end their civil war. The deal contemplates amnesty for Mullah Omar and his deputies, many of whom have likely committed war crimes or crimes against humanity. As Prosecutor, you face a dilemma: Should you quietly accept the deal — or should you prosecute the Taliban, even though a prosecution risks jeopardizing the peace? Using that hypothetical as a frame, this essay explores how the ICC Prosecutor ought to balance competing considerations of peace and justice when deciding whether to initiate a criminal investigation or prosecution. The Prosecutor’s official policy position is that he cannot consider the interests of peace when deciding whether to prosecute suspected criminals. In other words, his decision whether to go after Mullah Omar must be made without considering how his acts will affect ongoing peace processes. This essay counters that it is both prudent and inevitable for the Prosecutor to consider the interests of peace. In a policy paper, the Prosecutor has ruled out the most natural method for considering the interests of peace, namely the Rome Statute’s Article 53 “Interests of Justice” provision. But there remain two other ways for the Prosecutor to take into account the interests of peace: first, through careful use of timing when initiating investigations and prosecutions; and second, through a process of proactive complementarity. This essay explains that on balance, delay and complementary are actually better vehicles to address the tension between peace and justice than Article 53’s Interests of Justice provision. The essay concludes by providing a set of practical guidelines the Prosecutor should follow when deciding when to prosecute, and when to defer. While the Prosecutor should not explicitly bargain with offenders or acknowledge the validity of blanket amnesty programs, he should delay investigations and employ proactive complementary when an investigation or prosecution unduly risks jeopardizing peace prospects.