¹ Security Council Resolution 827 (1993), creating the International Criminal Tribunal for the former Yugoslavia (ICTY), and Resolution 955 (1994), creating the International Criminal Tribunal for Rwanda (ICTR); Rome Statute for an International Criminal Court, approved on July 17, 1998. See the debates leading up to this historic new treaty in Cherif Bassiouni, M., ed., The Statute of the International Criminal Court: A Documentary History (Ardsley, N.Y.: Transnational, 1998Google Scholar).

² Chinkin, Christine et al. , In Re Pinochet, American Journal of International Law 93 (1999), p. 703CrossRefGoogle Scholar.

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⁴ The argument that the actions of Spanish and British courts were disturbing the delicate balance reached by Chileans was widely used by the Chilean government in its diplomatic offensive to bring Pinochet homeGoogle Scholar.

⁵ Zalaquett, José, “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints,” in State Crimes: Punishment or Pardon (Queenstown, Md.: Aspen Institute, 1989Google Scholar).

⁶ Méndez, Juan E., “Accountability for Past Abuses,” Human Rights Quarterly 19 (May 1997), p. 271CrossRefGoogle Scholar.

⁷ Cited in Minow, Martha, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), p. 50Google Scholar.

⁸ IbidGoogle Scholar.

⁹ A persuasive case to this effect, with regard to successive amnesties in Haiti, is made by Roth, Kenneth, “Human Rights in the Haitian Transition to Democracy,” in Hesse, Carla and Post, Robert, eds., Human Rights and Political Transitions: Gettysburg to Bosnia (Cambridge, Mass.: Zone Books, 1999), pp. 93–131Google Scholar.

¹⁰ See Popkin, Margaret and Bhuta, Nehal, “Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?” in Ethics & International Affairs 13 (1999), pp. 99–122CrossRefGoogle Scholar.

¹¹ Neier, Aryeh, “Prosecutions: Who and for What? Four Views,” in Boraine, Alex et al. , eds., Dealing with the Past: Truth and Reconciliation in South Africa (Cape Town: Institute for Democratic Alternatives in South Africa, 1994), p. 99Google Scholar.

¹² Sancinetti, Marcelo, Los Derechos Humanos en la Argentina Post Dictatorial (Buenos Aires: Lerner, 1988Google Scholar).

¹³ Schmitter, Phillippe and Karl, Terry, “What Democracy Is. and Is Not,” Journal of Democracy 2, No. 3 (1991)CrossRefGoogle Scholar; O'Donnell, Guillermo, “Further Thoughts on Horizontal Accountability” (Notre Dame, Ind.: Kellogg Institute, 2000Google Scholar; mimeograph).

¹⁴ Richard Goldstone, cited by Lawrence Wechsler in “Inventing Peace,”The New Yorker (November 20, 1995), p. 64Google Scholar.

¹⁵ Zalaquett, “Confronting Human Rights Violations Committed by Former Governments,” pp. 42–3Google Scholar.

¹⁶ Exchange between Jose Zalaquett and Kenneth Roth at Seminar on Transitional Justice organized by the Aspen Institute, Wye River Center, Md. (November 10–12, 2000)Google Scholar.

¹⁷ Osiel, Mark, “Legal Remembrance of Administrative Massacre,” University of Pennsylvania Law Review 144 (1995), pp. 463–680CrossRefGoogle Scholar.

¹⁸ This insight belongs to Michael IgnatieffGoogle Scholar.

¹⁹ Witness, for example, the very active diplomacy of the democratic government of Chile to bring back General Pinochet and prevent his extradition to Spain. Significantly, all Latin American democracies publicly expressed their solidarity with Chile on this issue, even while distancing themselves from Pinochet's record of human rights abuseGoogle Scholar.

²⁰ Art. 6(5), Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 7, 1977Google Scholar.

²¹ Letter from Toni Pfanner, head of the Legal Division, International Committee of the Red Cross Headquarters, Geneva, to Douglass Cassel, April 15, 1997, cited in Douglass Cassel, “Lessons from the Americas: Guidelines to International Response to Amnesties for Atrocities,” in M. Cherif Bassiouni and Madeline H. Morris, eds., , “Accountability for International Crimes and Serious Violations of Fundamental Human Rights,” Duke University Review of Law and Contemporary Problems 59 (Autumn 1996), p. 218Google Scholar.

²² An interesting legal issue arises from this amnesty. Undoubtedly, Foday Sankoh and his accomplices will invoke it as a defense against future prosecutions, either in Sierra Leone or abroad. A strong case can be made that it is invalid both as a matter of domestic and of international law, not only because it is contrary to the emerging principles discussed in this essay, but also because it was conditional on the rebels' abiding by the obligations they assumed in the peace agreement and then promptly ignored. In October 2000, the UN settled this question with regard to the hybrid court that is being set up and will have jurisdiction both for international crimes and for some domestic law offenses. The amnesty will apply only to the latter. See Michael Scharf, “The Special Court for Sierra Leone,”ASIL Insight, October 2000; available on American Society of International Law Web page at http://www.asil.org/insigh53.htm.

²³ In Sierra Leone the hybrid option is to set up a court of domestic jurisdiction with international support and some UN participation. Michael Scharf, “The Special Court for Sierra Leone.” It appears that something similar is being negotiated for CambodiaGoogle Scholar.

²⁴ Although Spanish nationals were included as victims in the early stages of the Garzón prosecution, the Spanish jurisdictional statute is not a “passive personality” but a true “universal jurisdiction” statute, meaning that Garzón had jurisdiction whatever the nationality of the victims. In fact, the case was later expanded to include many non-Spanish victims, and the warrant of arrest against Pinochet came out of Garzón's evidence about Operation Condor, whose victims were not Spanish nationalsGoogle Scholar.

²⁵ They were excluded under the “double criminality” rule of extradition law, as the Law Lords decided that extraterritorial torture (as opposed to torture itself) had not become a crime in British law until 1988, when the Convention against Torture was ratified and implementedGoogle Scholar.

²⁶ Rome Statute for an International Criminal Court, UN Doc. A/CONF.183/9, Rome, July 17, 1998. The statute has been signed by 135 countries and ratified (as of February 2001) by 28 countries. Sixty ratifications are needed for the statute to enter into forceGoogle Scholar.

²⁷ Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS [United Nations Treaty Series], p. 277, entered into force January 12, 1951; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1465 UNTS, p. 85, entered into force June 26, 1987; Inter-American Convention on Forced Disappearance of Persons, adopted in Belem do Pará, June 9, 1994, entered into force March 28, 1996, reprinted in 32 ILM [International Legal Materials] (1994), p. 1529Google Scholar.

²⁸ Not surprisingly, in countries like Chile, Argentina, and Uruguay, courts have begun to interpret these laws narrowly, so as to give effect to principles of international law. For example, judges will continue inquiries and investigations until the facts establish clearly whether the amnesty applies. Disappearances are considered “continuing crimes” whose effects outlive the amnesty, at least until the death of the victim and its circumstances are reliably established. Courts also institute procedures of investigation into the facts in order to give effect to the “right to truth” as one of those emerging obligations of the state, even if in the end no punishment is possible. See Felipe Michelini, “El largo camino de la verdad,”Revista IIDH 24 (July/December 1996), pp. 157–72; Martín Abregú, “La tutela judicial del derecho a la verdad en la Argentina,”Revista IIDH 24 (July/December 1996), pp. 11–47; Méndez, Juan, “Derecho a la verdad frente a las graves violaciones a los derechos humanos,” in Abregú, Martin and Courtis, C., eds., La aplicacion de los tratados sobre derechos humanos por los tribunates locales (Buenos Aires: Del Puerto-CELS, 1997Google Scholar); Méndez, “Accountability for Past Abuses.”

²⁹ Rome Statute, Art. l. Complementarity does not apply to the ICTY and ICTR, since they enjoy primacy of jurisdiction. For the same reason, they are not bound by any domestic decision on clemencyGoogle Scholar.

³⁰ The territorial state or the state of nationality of the accused must be parties to the treaty or must accept the jurisdiction of the ICC for the case under investigationGoogle Scholar.

³¹ “Unwillingness” and “inability” are defined in Art.17, para. (2) and (3)Google Scholar.

³² Art. 20 (3)Google Scholar.

³³ De jure impunity is secured via amnesties or laws designed to prevent investigation and punishment. De facto impunity prevails when prosecutors, judges, and other authorities simply decline to investigate and prosecute, or when high authorities deliberately interfere to thwart investigationsGoogle Scholar.

³⁴ Dugard, John, “Reconciliation and Justice: The South African Experience,” Transnational & Contemporary Problems 8 (1998), p. 277Google Scholar.

³⁵ Meintjes, Garth and Méndez, Juan E., “Reconciling Amnesties with Universal Jurisdiction,” International Law Forum 2 (2000), pp. 76–97CrossRefGoogle Scholar.