Monday, November 21, 2005
Suffolk Crimprof Eric Blumenson has posted on SSRN The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court. The Abstract:
This article addresses what is often described as the 'peace versus justice' problem, in the context of prosecutorial discretion at the International Criminal Court. The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. It already confronts the ICC in its first referral, concerning crimes against humanity committed during an on-going civil war in Uganda, where many victims and their families are imploring the prosecutor to foreswear prosecution. They argue that indictments will deter the rebels from negotiations, and that their traditional restorative justice mechanisms will serve to promote justice and reconciliation far better than prosecutions. ICC decisions on this and other early cases will shape the contours of an emerging standard of global criminal justice.
This article analyzes the conflicting claims of peace, pluralism and punishment in such cases. Among the central questions explored in the article are the following:
(1) Does justice in the aftermath of crime always require prosecution? The answer explores the nature of retributive justice and its relationship to victims of crime.
(2) If justice does require prosecution, does this obligation outweigh all other considerations? The analysis considers three alternative ways of handling a conflict between the obligations of justice and the dire impact fulfilling them would have on third parties, when such is the case. This discussion includes a response to one approach to such conflicts advocated by Profs. Sunstein and Vermeule in their recent argument in favor of capital punishment.
(3) As a global institution, how much deference should the ICC afford to diverse state approaches to the previous two questions? The article suggests that for procedural, substantive, and pragmatic reasons, the Court and its prosecutor should adopt a pluralist philosophy in its charging decisions and complementarity assessments.
Paper available here: http://papers.ssrn.com/paper.taf?abstract_id=834004