In addition to the Council’s role with respect to amnesties in light of its powers concerning international peace and security, the ICC prosecutor has a discretion not to investigate where, ‘[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that investigation would not serve the interests of justice’.^[71] It is plausible to argue that the existence of a legitimate national amnesty, or amnesty under an international peace agreement, accompanied by alternative forms of justice^[72] could supply a legitimate reason not to prosecute, though much may depend on the degree of latitude accorded to states by the prosecutor. Certainly, in national legal systems, the existence of a (foreign) amnesty may be a relevant factor in the ordinary exercise of prosecutorial discretion.^[73]

Further, the ICC must determine that a case is inadmissible where a state with jurisdiction has decided not to prosecute and the decision does not result from an unwillingness of the state to genuinely prosecute (art 17(1)(b) of the Rome Statute).^[74] Acceptance by a national court or prosecutorial authority of a legitimate amnesty arguably does not amount to an unwillingness genuinely to prosecute. However, the ICC will consider whether the national proceedings or decision not to prosecute ‘was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the court’, and whether any proceedings were conducted in a manner ‘inconsistent with an intent to bring the person concerned to justice’ (art 17(2)(a) and (b) respectively).^[75] While a person may be brought to justice by means outside the criminal justice system, an amnesty does shield a person from criminal responsibility, notwithstanding any benevolent intention to effect justice by other means. The potential contradiction within these provisions may require creative interpretation to reconcile them. The Court may also consider amnesties in its inherent judicial discretion to control abuse of process.

The ICC may have to grapple with these issues in the near future. The Lord’s Resistance Army (LRA) has entered into negotiations, brokered by Sudan, with the Ugandan government to end the 20-year civil conflict in northern Uganda, and Ugandan President Yoweri Museveni has offered immunity to LRA leader Joseph Kony and to the rebels as a whole.^[76] This is despite Uganda’s earlier request to the ICC that the LRA be investigated for war crimes and crimes against humanity, which resulted in the ICC issuing arrest warrants for Kony and others in 2005.^[77] Subsequent pleas by Uganda for the ICC to abandon the case have not been favourably received, despite Uganda’s view that this is necessary to stabilise the truce after August 2006. In principle, it may be correct to regard amnesties for ICC crimes as incompatible with the Rome Statute other than in exceptional cases where amnesties are conditional and alternative forms of justice are available.^[78] The Ugandan example would not seem to satisfy these principles, but it is nonetheless an extremely hard case; the price of prosecuting the LRA could well be the disintegration of a fragile truce and a return to the vicious and unrestrained attacks on civilians by the LRA.