Is international law a building or stumbling block to States' response to a legacy of massive atrocities? Reassessing the obligations to investigate and prosecute

Post-conflict situations, regime changes, and peace processes within situations of active hostility pose tremendous challenges for the governments and societies involved. The inherent dilemma between justice and the international obligations to investigate and prosecute a legacy of large-scale human rights abuses, and the role of alternative justice mechanisms, which seek to pursue more abstract goals such as peace and reconciliation, has its roots in the current discourse of transitional justice. By analyzing the provisions in which the obligations to investigate and prosecute are enshrined or derived, this work disentangles the common misconception that such procedural obligations are naturally rooted and clearly spelled out in the most important international humanitarian and human rights instruments considered by this study. It also dispels the notion that successor governments facing a transition operate in a normative vacuum: international law, human rights bodies, the ICC, and the UN impose limitations on the sovereign exercise of states’ prerogatives, thus shaping local approaches to policies of justice. But an uncompromising call for prosecution overlooks realpolitik considerations, practical difficulties, and the peculiar needs of fragile successor governments with limited power and room for maneuver. Granted that the rule of law cannot be reestablished in a society in which perpetrators enjoy impunity, since de facto and de jure impunity do per se constitute a breach of states parties’ duties under the conventions, criminal prosecution cannot be the only tool for reckoning with the past because punishment also encompasses non-criminal sanctions. A pluralistic notion of accountability and an integrated approach to peacemaking are thus advocated. International law is only capable of adjusting to the peculiarities of transitions if it is flexibly understood and applied. To remain relevant as a legal regime it needs to accord with political realities but should always be interpreted in a manner consistent with its rationale.