The “duty to prosecute” refers to the claim by proponents of international criminal justice that the international community has a moral and legal obligation to investigate and punish the most serious abuses of human rights in the aftermath of war or repressive rule. Conversely, it challenges the legitimacy of amnesties and non-retributive forms of transitional justice for perpetrators of such crimes. The duty has its origins in (a) international treaties that have codified a universal recognition of core crimes for which prosecution is mandated, and (b) the international human rights law which creates for victims a nonnegotiable right of redress for the wrongs done to them. The argument has been challenged primarily on consequentialist grounds – that is, that strictly demanding prosecution might prolong a war, dissuade a dictator from stepping down, or generate a violent backlash against transitions to democracy or peace.
The phrase “duty to prosecute” was originally used by the legal...
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
References
Allen T (2006) Trial justice: the international criminal court and the Lord’s resistance army. Zed Books, London
Branch A (2007) Uganda’s civil war and the politics of ICC intervention. Ethics Int Aff 21:179–198
Nino C (1990) Duty to punish past abuses of human rights put into context. Yale Law Rev 100:2619–2640
Nino C (1998) Radical evil on trial. Yale University Press, New Haven
Orentlicher D (1990) Settling accounts: the duty to prosecute human rights violations of a prior regime. Yale Law Rev 100:2538–2618
Orentlicher D (2007) Settling accounts revisited: reconciling global norms with local agency. Int J Transitional Justice 1(1):115–137
Roht-Arriaza N (2005) The Pinochet effect: transitional justice in the age of human rights. University of Pennsylvania Press, Pennsylvania
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2011 Springer Science+Business Media B.V.
About this entry
Cite this entry
Rodman, K.A. (2011). Duty to Prosecute. In: Chatterjee, D.K. (eds) Encyclopedia of Global Justice. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-9160-5_717
Download citation
DOI: https://doi.org/10.1007/978-1-4020-9160-5_717
Publisher Name: Springer, Dordrecht
Print ISBN: 978-1-4020-9159-9
Online ISBN: 978-1-4020-9160-5
eBook Packages: Humanities, Social Sciences and Law