The ICC and the Peace vs. Justice Dilemma

The collapse of the bipolar world and the end of the Cold War has brought about new challenges، which require a revitalization of international law. The existing system of maintenance of international peace and security، allows appropriate organs other than the UN SC، to play a role. Arguably، prosecution of serious international crimes is a function more appropriate for a judicial organ. However، the UN SC may find that doing justice would otherwise jeopardize efforts to achieve peace through other means، such as truth and reconciliation commissions or amnesties. This political discretion is now given to the independent Prosecutor under the ICC Statute and it is unclear whether the ICC model is complementary or concurrent with the UN system. The ICC model binds non state parties. However the jus cogens justification refers to the prohibitions and not the jurisdiction of the court. Absent universal endorsement of the ICC model، the presumption of consent binds non state parties. In terms of efficiency one should consider establishing similar regional institutions، based on subsidiarity principles. The establishment of regional criminal courts closer to the place of events، victims and witnesses might represent a useful complement to the ICC in the combat against impunity.