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Between the Scylla and Charybdis of prosecution and reconciliation: The Khmer Rouge trials and the promise of international criminal justice.

Jain, Neha
June 4, 2015

Source: (2009) Duke Journal of Comparative and International Law. 20(2): 247-290.

The issue of “justice versus peace” has long been at the center of the controversy on international prosecutions for crimes in transitional and post-conflict societies. Opponents of international prosecutions have taken
umbrage at the presumption that justice can only be rendered through
criminal prosecutions by an international tribunal often far removed from
local realities and voiced their concern about the destabilizing effects such
prosecutions can have on local peace building initiatives that often provide
amnesties for participants in mass atrocities.’ International criminal lawyers
have answered these charges by arguing for a more holistic concept of
peace in which justice is a prerequisite for a stable society based on the rule of law and prevention of impunity, and put forward holding individuals
criminally responsible in a fair and impartial setting as one of the best
methods for achieving this objective. Thus far, this heated debate has
rarely progressed beyond the hallowed corridors of the International
Criminal Court (“ICC”): there is a rich and growing scholarship exploring the tension between the ICC and alternative justice mechanisms,
particularly amnesties and traditional justice practices. The bulk of this
literature however, lavishes its attention on the ICC as the prima donna of international criminal prosecutions, often treating the individual actors
within the institutional structure as minor extras, whose interests come as
an afterthought. Another strand of writing develops on the role of
particular players in the ICC apparatus, but is inconclusive on their precise
contribution to the peace versus justice conundrum. I therefore propose to
focus on and develop a more sophisticated theoretical construct of the role
of the agent who occupies the preeminent position in confronting and
deciding between these opposing camps: the prosecutor of an international
or hybrid tribunal. (Excerpt).


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