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32 Cornell Int'l L.J. 507 (1999)
The Amnesty Exception to the Jurisdiction of the International Criminal Court

handle is hein.journals/cintl32 and id is 515 raw text is: The Amnesty Exception to the Jurisdiction of the International Criminal Court Michael P. Scharf* Introduction This article examines the paradoxical question of whether the Interna- tional Criminal Court will require justice at the expense of peace. Notwith- standing the popular catch phrase of the 1990s - no peace without justice' - peace and justice are sometimes incompatible goals. To end an international or internal conflict, negotiations must often be conducted with the very leaders who were responsible for war crimes and crimes against humanity. When this is the case, insisting on criminal prosecu- tions can prolong the conflict, resulting in more death, destruction, and human suffering.2 Reflecting this reality, during the past several years, Argentina, Cambo- dia, Chile, El Salvador, Guatemala, Haiti, Uruguay, and South Africa have each granted amnesty to members of the former regime that committed international crimes within their respective borders as part of a peace arrangement.3 With respect to four of these countries - Cambodia, E1 Sal- vador, Haiti, and South Africa - the United Nations pushed for, helped negotiate, and/or endorsed, the granting of amnesty as a means of restor- ing peace and democratic government.4 The term amnesty derives from the Greek word amnestia - mean- * Professor of Law and Director of the Center for International Law and Policy, New England School of Law; former Attorney-Adviser for U.N. Affairs, U.S. Department of State; J.D. Duke University School of Law, 1988; A.B. Duke University, 1985. 1. See, e.g. David Rieff, The Precious Triumph of Human Rights, N.Y. TiMEs, Aug. 8, 1999, at 37. 2. As an anonymous government official stated in an oft-quoted article: The quest for justice for yesterday's victims of atrocities should not be pursued in such a manner that it makes today's living the dead of tomorrow. Anonymous, Human Rights in Peace Negotiations, 18 HUM. RTs. Q. 249, 258 (1996). One commentator has concluded that this anonymous author is Lord David Owen, the Co-Chairman of the Yugoslavia Peace Talks, see David Forsyth, International Criminal Courts: A Political View, 15 NrERLAN~ s Q. HUM. RTs. 5, 9 n.11 (1997), but it is more likely from the context of the article that the author was a member of the U.S. Delegation to the Dayton talks. 3. See Michael P. Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 LAw & CoNTEMP. PROBS. 1, 1 (1996); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CAL. L. REv. 451, 458-61, 484 n.187 (1990). 4. See Scharf, supra note 3, at 1. 32 CORNEnL INT'L LJ. 507 (1999)

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