Does Justice Always Require Prosecution? The International Criminal Court and Transitional Justice Measures

Two provisions of the Rome Statute of the International Criminal Court (ICC), which address complementarity and discretion to decline prosecution the interests of justice, give the ICC Prosecutor the ability to defer to a State wishing to undertake its own transitional justice program. Given the global preference for the imposition of individual criminal liability for serious international crimes-as evidenced by the creation of the ICC-it is highly likely that most such programs will involve prosecution.This Article examines whether the ICC Prosecutor might defer prosecution when a State that favors other mechanisms of accountability and reconciliation decides not to prosecute the individuals suspected of involvement in conflict atrocities. Before responding to such a proposal, the Prosecutor should evaluate the stability of the country emerging from conflict, the will of the people affected by the proposal, and the gravity of the crimes at issue. This Article offers a framework for a national plan for justice and peace that includes investigative, retributive, and reparative elements, and argues that such a plan is likely to pass muster with the ICC Prosecutor. It then contends that the ICC Prosecutor should decline to prosecute in these situations because the States are in the best position to assess and implement their post-conflict goals and can tailor any policy to their needs. An insistence on prosecution by the ICC Prosecutor would be shortsighted and would fail to consider the complexities of each State's unique climate as it transitions from violence to peace.