Ineffective Amnesty: The Legal Impact on Negotiating the End of Conflict

           *   Democracy Specialist and Anticorruption Advisor, U.S. Agency for International Development (“USAID”), Active Component-Civilian Response Corps; American University, School of International Service (M.A., 2005); American University, Washington College of Law (J.D., 2004).  I would like to thank Professor Paul Williams for his feedback and thoughtful discussions.  I wish to thank my wife, Michele Rose Lyons, for her love and support in making my writing possible.  The opinions expressed herein are those of the author and do not necessarily reflect the views of USAID or any other agency.

        [1].   See generally Ben Chigara, Amnesty in International Law: The Legality Under International Law of National Amnesty Laws 2–6 (2002); Douglass Cassel,Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197 (1996); Heinz Klug, Amnesty, Amnesia and Remembrance: International Obligations and the Need to Prevent the Repetition of Gross Violations of Human Rights, 92 Am. Soc’y Int’l L. Proc. 316 (1998); Diane F. Orentlicher, International Criminal Law and the Cambodian Killing Fields, 3 ILSA J. Int’l & Comp. L. 705 (1997) [hereinafter Orentlicher,Cambodian Killing Fields]; Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991) [hereinafter Orentlicher, Settling Accounts]; Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449 (1990); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J.1 (1996); Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857 (1995); cf. Antonio F. Perez, The Perils of Pinochet: Problems for Transitional Justice and a Supranational Governance Solution, 28 Denv. J. Int’l L. & Pol’y 175 (2000) (discussing the difficulties surrounding potential amnesty in Cuba while trying to encourage a transition towards a more democratic future).

        [2].   See Gene Shackman et al., Brief Review of Trends in Political Change: Freedom and Conflict, Int’l Consortium Advancement Acad. Publication (Oct. 2004), http://gsociology.icaap.org/report/polsum.html.  By 2000, the majority of the world population lived in democratic-styled countries, and there was a dramatic growth in democracy.  Id. at tbl.1, fig.1.  When China is removed from calculations, almost eighty-five percent of the population lives in democratic nations.  SeeEconomist Intelligence Unit, Democracy Index 2010: Democracy in Retreat 2 (2010), available at http://graphics.eiu.com
/PDF/Democracy_Index_2010_web.pdf.  While there was backsliding in democracies since 2008, the majority of the world still lives in a democracy of some form. Id. at 1.

        [3].   Appendix, in Prosecuting Heads of State 295–304 (Ellen L. Lutz & Caitlin Reiger eds., 2009).  Since 1990, sixty-seven former heads of state have been legitimately prosecuted for serious human rights abuses or economic crimes in domestic courts.  Id.  In 2009, ex-President Alberto Fujimori of Peru was convicted and sentenced to twenty-five years in prison for human rights abuses committed while in office.  Fujimori Gets Lengthy Jail Time, BBC (Apr. 7, 2009, 5:55 PM), http://news.bbc.co.uk/2/hi/americas/7986951.stm.  Former President Hosni Mubarak of Egypt was sentenced to life after being “convicted of complicity in the killings of some 90 protestors.”  Hamza Hendawi, Hosni Mubarak, Egypt’s Ousted President, Sentenced to Life in Prison, Huffington Post (June 2, 2012, 8:00 PM), http://www.huffingtonpost.com/2012/06/02/hosni
-mubarak-egypts-oust_n_1564603.html.  Moreover, former Tunisian President Zine El Abidine Ben Ali was tried in absentia in 2011.  Bouazza Ben Bouazza, Zine El Abidine Ben Ali, Ex-Tunisia President, Gets 20 Years in Absentia, Huffington Post (June 13, 2012, 4:40 PM), http://www.huffingtonpost.com
/2012/06/13/zine-el-abidine-ben-ali-20-years-In-absentia_n_1592983.html.

        [4].   Shackman et al., supra note 2; see also Int’l Inst. for Democracy & Electoral Assistance, Democracy and Deep-Rooted Conflict: Options for Negotiators 1 (Peter Harris & Ben Reilly eds., 1998), available at http://www.idea.int/publications/democracy_and_deep_rooted_conflict/upload
/ddrc_full_en.pdf (stating that between 1989 and 1996, most major conflicts have not occurred between states, but instead have been confined within states).

        [5].   See Paul R. Williams & Michael P. Scharf, Peace with Justice?: War Crimes and Accountability in the Former Yugoslavia 24–29 (2002) (discussing that the three approaches for peace building to end conflict are accommodation, economic inducement, and use of force).  Accommodation ends conflict by meeting the interests and objectives of adversarial parties, often by appeasement, which excludes justice via amnesty in exchange for a solution to conflict.  Id. at 24–26.  Economic inducement seeks to modify a party’s stance through economic incentives or sanctions.  Id. at 26.  Use of force is characterized by military action to affect the behavior of another State or group.  Id. at 27.

        [6].   Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, July 7, 1999 [hereinafter Lomé

Peace Accord], available at http://www.sierra-leone.org/lomeaccord.html.

        [7].   Sarah Williams, Amnesties in International Law: The Experience of the Special Court for Sierra Leone, 5 Hum. Rts. L. Rev. 271, 275–76 (2005).

        [8].   Statute of the Special Court for Sierra Leone, art. 10, Jan. 16, 2002, 2178 U.N.T.S. 145 available at http://www.sc-sl.org/LinkClick.aspx?fileticket
=uClnd1MJeEw%3D& (“An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.”).  Articles 2 through 4 refer to Crimes Against Humanity, Violations of Article 3 Common to the Geneva Convention and of Additional Protocol II, and Other Serious Violations of International Humanitarian Law.  Id. arts. 2–4.

        [9].   Andreas O’Shea, Amnesty for Crime in International Law and Practice 22, 39 (2002); ‘Amnesty’ for Uganda Rebel Chief, BBC (July 4, 2006, 5:38 PM), http://news.bbc.co.uk/2/hi/africa/5147882.stm.  The amnesty agreement would preclude State investigations into crimes covered by the amnesty, which could possibly cover acts such as rape and pillage.  O’Shea, supra, at 41.  By 2011, over 12,000 former Lord’s Resistance Army members had been granted amnesty under the law; however there is uncertainty regarding the constitutionality of the amnesty law.  Simon Jennings, Ugandan War Crimes Trial Hangs in Balance, ReliefWeb (Aug. 25, 2011), http://reliefweb.int/report/uganda/ugandan-war-crimes-trial-hangs-balance.

      [10].   Manisuli Ssenyonjo, Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court, 3 J. Conflict & Security L. 405, 407–08 (2005).

      [11].   ‘Amnesty’ for Uganda Rebel Chief, supra note 9.

      [12].   Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 216–17 (2008).

      [13].   For the purposes of this Article, “internal conflict” will be defined as any civil war, internal armed conflict, rebellion, insurgency, coup attempt, tribal warfare, territorial struggle, action to create an autonomous region within a state, or other organized action rising to a similar level that seriously threatens the State.  For a treaty-based definition of internal “armed conflict,” see infra note 18.

      [14].   This Article agrees with the principle that leaders of prior authoritarian regimes responsible for human rights abuses should be prosecuted; that topic has been thoroughly discussed.  This Article will only discuss amnesty as it relates to resolution of internal conflict and civil wars, particularly for opposition groups that have committed serious offenses.

      [15].   See infra notes 254–57 and accompanying text.

      [16].   See William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J.467, 510–12 (2001) (discussing the validity of the amnesty laws of the Federation of Bosnia and Herzegovina, the Republika of Srpska, and Croatia, and indicating that these agreements comply with international obligations).

      [17].   See infra notes 24–26 and accompanying text.

      [18].   Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 6(5), June 8, 1977, 1125 U.N.T.S. 609.  To be internal “armed conflict,” the situation must involve an action greater than internal tension, riots, or isolated and sporadic acts of violence.  See id. art. 1.

      [19].   Mahnoush H. Arsanjani, The International Criminal Court and National Amnesty Laws, 93 Am. Soc’y Int’l L. Proc. 65, 65 (1999) (indicating that the purpose of Article 6(5) in Protocol II was to encourage “gestures of reconciliation,” which can be accomplished through amnesty); Naomi Roht-Arriaza, Special Problems of a Duty to Prosecute: Derogation, Amnesties, Statutes of Limitation, and Superior Orders, in Impunity and Human Rights in International Law and Practice 57, 59 (Naomi Roht-Arriaza ed., 1995) (reflecting the desirability of integrating past rebels or insurgents into normal national life).  Article 6(5) of Protocol II is sufficiently broad enough to encourage amnesty for both insurgents and State officials or agents.  Id.; cf. Cassel, supra note 1, at 218 (explaining that combatants in international conflicts receive significant protection against punishment for participating in the hostilities and that Protocol II acts to encourage amnesty for noninternational combatants who do not receive the same legal protection).

      [20].   See Christine Bell, Peace Agreements and Human Rights 263 (2000) (indicating that Protocol II does not impose an obligation to prosecute and scholars are divided on whether it provides a basis for individual criminal responsibility).  The International Committee of the Red Cross (“ICRC”) has interpreted Article 6(5) narrowly and stated that is does not apply to amnesties for violations of international humanitarian law, but the ICRC is a nonlegal entity, and the wording of Protocol II is still unclear.  Id. at 265.

      [21].   Roht-Arriaza, supra note 19 (discussing the failure of the Soviet bloc States to gain approval for a proposal that would have prevented Protocol II from circumventing prosecution for crimes against humanity).

      [22].   See Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 526 (1999).

      [23].   Burke-White, supra note 16, at 482 (indicating that blanket amnesties, which are usually broad or all encompassing and traditionally decreed by outgoing dictators for self protection, offer general protection against civil and criminal charges and often do not differentiate between common crimes, political crimes, and international crimes).  International legal entities have rejected blanket amnesties, and in recent cases, even domestic courts have declined to enforce these amnesties. Id. at 522; Cassel, supra note 1, at 215 (commenting on the Inter-American Commission’s declaration that self-amnesties are “legal nullities”); Christopher C. Joyner,Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability, 26 Denv. J. Int’l L. & Pol’y 591, 616–17 (1998) (stating that only government policy makers may authorize impunity); Roht-Arriaza, supra note 19, at 60–62 (discussing the Inter-American Commission on Human Rights rulings concerning Argentina, El Salvador, and Uruguay that continuously found the self-amnesties decreed by Latin American dictators to not be legally enforceable).  “Where amnesties are granted through non-legitimate means . . . they may legitimately be denied legal force due to their irregular means of promulgation . . . .”  Id. at 58; see also Kristin Henrard, The Viability of National Amnesties in View of the Increasing Recognition of Individual Criminal Responsibility at International Law, 8 Mich. St. U.-DCL J. Int’l L. 595, 641–42 (1999) (stating that blanket amnesties are “completely unacceptable and of no legal value”).

      [24].   Roman Boed, The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations, 33 Cornell Int’l L.J. 297, 323 (2000) (“Amnesties granted by States in violation of their conventional duties cannot be considered valid on the international plane and cannot have any effect on the prerogatives of other States.”); Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 Law & Contemp. Probs. 41, 43 (1996) (stating that Article 27 of the Vienna Convention on the Law of Treaties prevents States from using internal law as a justification for failing to perform a duty in a treaty).  Scharf also notes that the duty to prosecute under the Geneva Conventions is strictly limited to international armed conflict.  Id. at 44.  Article 2 in each of the four Geneva Conventions states that international armed conflict is declared war or other armed conflict that arises between two or more States.  Id.; e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 2, Aug. 12, 1949, 75 U.N.T.S. 31.

      [25].   Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277.  The Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) includes specific provisions that “persons committing genocide . . . shall be punished” and persons “shall be tried by a competent tribunal of the State in the territory of which the act was committed.”  Id. arts. 4, 5; see also Restatement (Third) of Foreign Relations Law § 702 cmt. d (1986) (“A state violates customary law if it practices or encourages genocide, fails to make genocide a crime or to punish persons guilty of it, or otherwise condones genocide.”); Orentlicher, Settling Accounts, supra note 1, at 2562–64 (discussing that almost the entire Genocide Convention is designed to fulfill the purpose of preventing genocide through punishment of the crime and thus any amnesty precluding either domestic or international prosecution is void).

      [26].   Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 19, 1984, 1465 U.N.T.S. 85, modified, 24 I.L.M. 535 (entered into force June 26, 1987).  The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”) expressly requires parties to extradite someone if the State does not “submit the case to its competent authorities for the purpose of prosecution.”  Id. art. 7; see alsoBoed, supra note 24, at 311–12, 320–21 (stating that the wording of the Torture Convention requires States to prosecute violations or extradite under the principle ofaut dedere aut judicare (“extradite or prosecute”)); Scharf, supra note 24, at 46–47 (indicating that even though the wording of the Torture Convention is slightly different than the Genocide Convention, it still indicates a duty to prosecute); Gwen K. Young, Comment, Amnesty and Accountability, 35 U.C. Davis L. Rev. 427, 450 (2002) (discussing that the European Court for Human Rights ruled that amnesties do not prevent criminal proceedings against those who commit torture).  The duty to prosecute is only statutory and not from customary law due to lack of State practice, but there have been trends such as the Committee Against Torture’s 1990 statement that the Torture Convention “should oblige” all States to prosecute, which may indicate the principle is rooted in custom.  Scharf, supra note 24, at 47–48;cf. Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law 118–19 (2d. ed. 2001) (discussing customary law and torture and indicating that the exclusion of amnesty for States party to the convention extends not only to actions by the government, but also to any group acting in an official capacity, including guerrilla groups and insurgent rebels).

      [27].   Restatement (Third) of Foreign Relations Law § 102(1) (“A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major systems of the world.”).

      [28].   See Boed, supra note 24, at 314 (indicating that a duty must be based in custom and that there is disagreement if custom exists).

      [29].   International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.

      [30].   American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.

      [31].   Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.

      [32].   E.g., Orentlicher, Settling Accounts, supra note 1, at 2568 (“[P]rosecution and punishment are the most effective—and therefore only adequate—means of ensuring a narrow class of rights that merit special protection.”); Roht-Arriaza, supra note 1, at 474–83 (noting that the ICCPR, American Convention, and European Convention recognize a right to a remedy, which includes a duty to prosecute); cf. Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 Leiden J. Int’l L. 5, 15 (1994) (arguing that the treaties, declarations, and practices viewed together show that the international community accepts the obligation to prosecute).

      [33].   See Orentlicher, Settling Accounts, supra note 1, at 2551–52, 2568 (noting that the Conventions require States to respect the enumerated rights and guarantee that people are able to exercise those rights); Roht-Arriaza, supra note 1, at 474–83 (discussing the Conventions’ requirement to provide a remedy and arguing that the treaties include investigation and prosecution as components of a remedy).

      [34].   E.g., Orentlicher, Settling Accounts, supra note 1, at 2568 (arguing that authoritative interpretations of these treaties suggest that a party to the treaties fails its duties if it does not investigate the violations and bring to justice those responsible); Roht-Arriaza, supra note 1, at 467–68 (arguing that an obligation to “ensure” rights creates an affirmative obligation to prosecute).

      [35].   E.g., Roht-Arriaza, supra note 1, at 488. (discussing that a right to a remedy is a common feature of human rights instruments).  Roht-Arriaza argues that since a treaty obligation is nonderogable, the rights enumerated in the treaty are nonderogable, and thus amnesty preventing accountability breaches the treaty.  Id.

      [36].   Orentlicher, Settling Accounts, supra note 1, at 2571–76 (discussing declarations concerning torture in Zaire, extralegal executions in Suriname, and disappearances in Uruguay, with the HCR declaring that steps must be taken to provide justice and remedies).  Even though the drafters of the ICCPR never considered requiring parties to punish violations, nothing in the history of the Convention is inconsistent with a duty to prosecute.  Id. at 2569–71.

      [37].   Id. at 2576–79 (discussing the judgment from the Inter-American Court of Human Rights in the Velasquez Rodriguez case, which suggested a duty to punish all violations of the American Convention).  Orentlicher also notes that the Chairman of the Inter-American Commission on Human Rights strongly opposed amnesty that prevents prosecution of serious human rights abuses.  Id. at 2579; see also Roht-Arriaza, supra note 1, at 469–70 (discussing the Velasquez Rodriguezcase and contending that the holding implies a duty to prevent, investigate, and punish any violation of the American Convention in addition to restoring rights and paying compensation).  See generally, Naomi Roht-Arriaza & Lauren Gibson, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843 (1998) (providing a general overview of Latin American amnesty laws and challenges to them in various courts).

      [38].   Orentlicher, Settling Accounts, supra note 1, at 2581 (indicating that the European Court indirectly affirmed the principle that punishment is necessary to ensure the rights in the European Convention).

      [39].   E.g., Emily W. Schabacker, Reconciliation or Justice and Ashes: Amnesty Commissions and the Duty to Punish Human Rights Offenses, 12 N.Y. Int’l L. Rev. 1, 25 (1999) (arguing the language from the HRC does not indicate an absolute duty); Scharf, supra note 1, at 26 (rejecting the authoritative interpretation rationale based on statements by the HRC).

      [40].   Scharf, supra note 1, at 26 (noting that the HRC is only an administrative body to monitor compliance).

      [41].   Id.

      [42].   See id. at 26–27 (contending the parties to the treaty relied upon a certain meaning when they ratified the ICCPR).

      [43].   See, e.g., id. at 27 (discussing that the HRC left the door open to alternative measures).  In 1992, the HRC said amnesties are “generally incompatible” with the ICCPR, indicating that some amnesties are acceptable.  Id.; Schabacker, supra note 39.

      [44].   E.g., Scharf, supra note 1, at 27–28 (“The court . . . did not direct the Honduran government to institute criminal proceedings against those responsible for the disappearance of Manfredo Velásquez . . . . [Nor did it] specifically refer to criminal prosecutions as opposed to other forms of disciplinary action or punishment.”).

      [45].   See Scharf, supra note 24, at 51–52 (indicating that it could involve a different form of disciplinary action); cf. Schabacker, supra note 39, at 31 (citations omitted) (arguing that even though academics cite Velasquez Rodriguez as an important case, it only applies to Latin America and has not significantly influenced other international courts since the decision).

      [46].   Boed, supra note 24, at 314; see also M. Cherif Bassiouni, “Crimes Against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457, 473–75 (1994) (describing the failure of legal instruments to indicate rules of enforcement).

      [47].   Restatement (Third) of Foreign Relations Law § 102(2) & cmt. c (1986).

      [48].   Id. § 102 cmt. b.

      [49].   E.g., Bassiouni, supra note 46, at 480–81 (relying upon conventional law and U.N. General Assembly resolutions); Edelenbos, supra note 32 (relying upon treaties and the practice of prosecuting crimes against humanity committed during World War II); Orentlicher, Settling Accounts, supra note 1, at 2583–86 (citing treaties and U.N. resolutions reaffirming the Nuremberg precedents as an indication of a norm); Roht-Arriaza, supra note 1, at 489 (examining the combination of treaty law, judicial decisions, U.N. resolutions, and the law of State responsibility of injury to aliens as proof of a customary duty to prosecute).

      [50].   See, e.g., Roht-Arriaza, supra note 1, at 490 (stating both the International Court of Justice and the U.S. Supreme Court held that treaties can create binding obligations on nonparties if they indicate customary law).  Treaty provisions can become customary rules of law if participation is widespread and representative of the international community.  Id. at 490–91; cf. Orentlicher, Settling Accounts, supra note 1, at 2593 n.250, 2594 n.252 (discussing that although the Convention on the Non-Applicability of Statutory Limitations to Certain War Crimes and Crimes Against Humanity did not receive widespread support due to the inclusion of the crime of apartheid and the fact that it did not explicitly require parties to prosecute, it was based upon the perception that international law already required punishment).

      [51].   G.A. Res. 2840 (XXVI), U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429, ¶ 1, (Dec. 18, 1971).

      [52].   G.A. Res. 3074 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, U.N. Doc. A/9030, ¶ 1 (Dec. 3, 1973).

      [53].   E.g., Bassiouni, supra note 46, at 479–81 (listing legal instruments indicating that a duty to prosecute emerged into customary international law); Edelenbos, supra note 32, at 14–15 (discussing the 1989 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provision requiring people accused of these acts to be brought to justice); Orentlicher, Settling Accounts, supra note 1, at 2593 & n.251 (discussing the importance of the 1973 resolution and providing a list of other U.N. resolutions requiring States to ensure prosecution and punishment of crimes against humanity); Roht-Arriaza,supra note 1, at 498 (citing the U.N.’s 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power as a resolution calling on all member States to prosecute those guilty of human rights crimes).

      [54].   Boed, supra note 24, at 315 (citing G.A. Res. 2840, supra note 51).

      [55].   G.A. Res. 3074, supra note 52.

      [56].   See Roht-Arriaza, supra note 1, at 492, 496 (citing Restatement (Third) of Foreign Relations Law § 102 cmt. c (1986)) (referencing the governments of Uruguay and Chile as examples of nations that tried to provide diplomatic representations of compliance with international law even though they failed in reality to prosecute).

      [57].   Id. (contending that, when States have created amnesty laws, they have justified them as required by exigent circumstances that trump their obligations to investigate or prosecute).

      [58].   Id. at 496–97.

      [59].   See, e.g., Boed, supra note 24, at 315; Scharf, supra note 1, at 35.  There is an unsettled debate concerning the legal weight of General Assembly resolutions and their effect on international customary law.  Most commentators do not suggest that General Assembly resolutions create binding norms of international law but instead suggest that they may possibly be evidence of opinio juris.  E.g., id. (recognizing a State’s obligation to prosecute arising from U.N. General Assembly resolutions).  The political nature of the U.N., and the knowledge that the resolutions are not binding, reduces even the capacity to evaluate the strength of opinio juris shown in the resolutions.  Id. at 37; see also Christoph Schreuer, Recommendations and the Traditional Sources of Law, 20 German Y.B. Int’l L. 103, 107–09 (1977); Stephen M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 Proc. Am. Soc’y Int’l L. 301, 301–03 (1979).

      [60].   E.g., Scharf, supra note 1, at 35 n.242 (citing G.A. Res. 3074, supra note 52) (noting that the resolution was “adopted by a vote of 94 in favor to none against with 29 abstentions”).

      [61].   G.A. Res. 2312 (XXII), U.N. GAOR, 22d Sess., Supp. No. 16, U.N. Doc A/6716, at 81 (Dec. 14, 1967).

      [62].   Declaration of Territorial Asylum, 1967 U.N.Y.B. 758, 759, U.N. Sales No. E.68.1.1.

      [63].   Scharf, supra note 22, at 521.

      [64].   See, e.g., Schabacker, supra note 39, at 39; Scharf, supra note 1, at 35–36.

      [65].   Scharf, supra note 1, at 36–37 (indicating that the U.N. blocked prosecutions of the Khmer Rouge in Cambodia, encouraged Nelson Mandela to grant unconditional amnesty for apartheid in South Africa, and helped negotiate the much criticized Haitian amnesty agreement); cf. Schabacker, supra note 39, at 38–39 (stating that State practice is not uniform since nations have employed wide variations of truth commissions and amnesty provisions).  Schabacker notes nonprosecution is so common and widespread throughout the world that the U.N. Commissioner for Human Rights convened a special body out of concern.  Id. at 39.

      [66].   See Scharf, supra note 1, at 37.

      [67].   Kareem Fahim, Power Ceded, Yet President of Yemen Declares Amnesty, N.Y. Times, Nov. 28, 2011, at A11.

      [68].   Arab Spring Justice – but a Free Pass for Yemen’s Saleh, Christian Sci. Monitor (Jan. 9, 2012), http://www.csmonitor.com/Commentary/the-monitors
-view/2012/0109/Arab-Spring-justice-but-a-free-pass-for-Yemen-s-Saleh.

      [69].   E.g., Edelenbos, supra note 32, at 21 (discussing that invoking the interests of national reconciliation or the instability of the democratic process indicates an emerging opinio juris); Roht-Arriaza, supra note 1, at 495–96 (noting that, in humanitarian and human rights law, verbal declarations by the government and consent to international instruments are better indicators of State practice and opinio juris).  The rule comes from a Nicaragua case in the International Court of Justice where the court stated that, when a nation acts in a manner inconsistent with a recognized rule but justifies the action via an exception within the rule, the nation confirms, rather than undermines, the rule.  Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 98 (June 27).

      [70].   See, e.g., Scharf, supra note 1, at 38 (arguing that most States never mention the existence of a duty to prosecute and that the existence of exceptions contained within this duty demonstrate that it is not absolute).

      [71].   Rome Statute of the International Criminal Court, July 17, 1998, 37 I.L.M. 999 [hereinafter Rome Statute] (entered into force July 1, 2002).

      [72].   Boed, supra note 24, at 316 & n.114 (quoting Rome Statute, supra note 71, pmbl.).

      [73].   Id.

      [74].   E.g., Jean Graven, Les Crimes Contre L’Humanité, in 76 Recueil Des Cours 427, 433 (1950).

      [75].   Hague Convention IV – Laws and Customs of War on Land, pmbl., Oct. 18, 1907, 36 Stat. 2277 (“[T]he inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” (emphasis added)); see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11, 16–17 (1997) (discussing the impact and limitations of the Martens Clause).

      [76].   Bassiouni, supra note 75, at 14–17 (indicating that the principle was applied by the Commission on the Responsibilities of the Authors of War and Enforcement of Penalties in its investigations into violations of the laws and customs of war).

      [77].   Id. at 17 (discussing the treaty signed at the end of World War I).  The Treaty of Sevres was never ratified and none of the prosecutorial provisions ever enacted.  Id.; see also Phyllis Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22 Fordham Int’l L.J. 457, 459 (1998) (noting that all the later treaties concluding World War I declined to prosecute crimes against humanity).

      [78].   Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, art. 6(c), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, 288 [hereinafter European Axis Agreement].  See generally Beth Van Schaack, The Definition of Crimes Against Humanity: Resolving the Incoherence, 37 Colum. J. Transnat’l L. 787, 798–807 (1999) (providing a history of the development and application of crimes against humanity as an offense under the jurisdiction of the IMT Charter).

      [79].   European Axis Agreement, supra note 78.

      [80].   Id.

      [81].   See Ratner & Abrams, supra note 26, at 47 (indicating that this clause was a serious compromise between the Allied powers).

      [82].   International Military Tribunal for the Far East, art. 5(c), Jan. 19, 1946, amended Apr. 26, 1946, T.I.A.S. No. 1589.

      [83].   Control Council Law No. 10, art. II(c), May 8, 1945, reprinted in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 33–34 (2d ed., 1999) (indicating that Control Council Law No. 10 provided for prosecution of crimes against humanity by the occupying powers within their respective zones).

      [84].   The International Military Tribunal for the Far East (“IMTFE”) omitted prosecution based upon religious grounds since it was not necessary and removed the phrase “against any civilian population” to expand the class of victims.  Bassiouni, supra note 75, at 37.  Article II of Control Council Law No. 10 expanded on the list of crimes enumerated in the IMT and the IMTFE to include imprisonment, torture, and rape, and also omitted the nexus of occurring “before or during the war.”  Id. at 38.

      [85].   G.A. Res. 174(II), U.N. GAOR, 2d Sess., U.N. Doc. A/519, at 105 (Nov. 21, 1947) (establishing the ILC); see also Bassiouni, supra note 83, at 179–93 (describing the various ILC attempts to codify crimes against humanity from 1950 to 1996 and indicating the variations of each text); Matthew Lippman, Crimes Against Humanity, 17 B.C. Third World L.J. 171, 228–32, 260–64 (1997) (providing a history of the Draft Code and discussing developments since the 1950s).  The attempts to codify “crimes against humanity” were efforts to affirm and clarify the offenses defined in the IMT Nuremberg Charter that only applied to the defeated nations of World War II.  Bassiouni, supra note 83, at 178.

      [86].   Draft Code of Offences against the Peace and Security of Mankind, U.N. GAOR, 9th Sess., U.N. Doc. A/12693 (1951).

      [87].   Id. art. 2, para. 11; see Lippman, supra note 85, at 232 (discussing how the Draft Code was a substantial departure from the Nuremberg Principles of the IMT by codifying offenses that posed a threat to the security of the international community simply by being severe atrocities against large numbers of people).

      [88].   Bassiouni, supra note 83, at 186 (contrasting 1954 Draft Code Article 2(11) with IMT Charter Article 6(c)).  But see Lippman, supra note 85, at 231–32 (discussing that the removal of the requirement that the act must be committed in connection with another offense was very controversial because some feared the definition would extend international jurisdiction into purely domestic affairs of States).

      [89].   See Hwang, supra note 77, at 469–73 (providing an overview of the prosecutions of Klaus Barbie, Paul Touvier, and Imre Finta).  For France’s prosecution of Klaus Barbie, former head of the Gestapo in Lyon during World War II, crimes against humanity were defined as acts “in the name of a State practicing a hegemonic political ideology, [which] have been committed in a systematic fashion, not only against persons because they belong to a racial or religious group, but also against the adversaries of this [State] policy, whatever the form of their opposition.”  Id. at 470 (second alteration in original) (quoting Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 289, 339 (1994)).  For Touvier, the French Court of Appeals established three elements for crimes against humanity: the systematic nature of the crimes, participation in a common plan, and intention to carry out a State policy of political hegemony.  Id. at 472.  In the trial of Finta for atrocities committed in Hungary in 1944, the Supreme Court of Canada applied section 7(3.76) of the Canadian Criminal Code, which defined crimes against humanity as “murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons . . . .”  Id. at 472 n.106 (quoting Criminal Code, R.S.C. 1985, c. C-46, s. 7(3.76) (Can.) (repealed 2000)).

      [90].   S.C. Res. 955, ¶ 1, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]; S.C. Res. 827,¶ 2, U.N. Doc. S/RES/827 (May 25, 1993).

      [91].   U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, annex, U.N. Doc. S/25704 (May 3, 1993) [hereinafter ICTY Statute]; see S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), amended S.C. Res. 1411, U.N. Doc. S/RES/1411 (May 17, 2002) (adopting the Statute of the ICTY).

      [92].   ICTR Statute, supra note 90, annex.

      [93].   Bassiouni, supra note 83, at 194–96 (giving a textual comparison between the statutes and indicating that the differences emerged because Yugoslavia involved an international conflict while Rwanda’s was of a purely internal nature).  See generally Guénaël Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int’l L.J. 237 (2002) (discussing the meaning of the various elements of crimes against humanity as demonstrated in the judgments of the two tribunals); Van Schaack, supra note 78, at 826–40 (discussing the adjudication of and commentary on the definition of crimes against humanity by the ad hoc tribunals).

      [94].   ICTY Statute, supra note 91, art. 5 (“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflicts, whether international or internal in character, and directed against any civilian population . . . .”).

      [95].   ICTR Statute, supra note 90, art. 3 (“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds . . . .”); see alsoDavid J. Scheffer, War Crimes and Crimes Against Humanity, 11 Pace Int’l L. Rev. 319, 328–29 (1999) (indicating that in the adjudication of the ICTR, the Akayesudecision created new precedent by establishing that rape can stand on its own as a crime against humanity).

      [96].   Orentlicher, Settling Accounts, supra note 1, at 2585 (indicating that the exact meaning of crimes against humanity is “shrouded in ambiguity”); Darryl Robinson, Defining “Crimes Against Humanity” at the Rome Conference, 93 Am. J. Int’l L. 43, 43 n.4 (1999) (discussing the difficulty in determining a definition at the Rome Conference due to past inconsistencies); Van Schaak, supra note 78, at 792 (stating that the definition of crimes against humanity has often been incoherent).

      [97].   Boed, supra note 24, at 302–03; Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 791–800 (1988).

      [98].   Randall, supra note 97, at 800 (contrasting the international community’s perspective and relevant treaty law on piracy and slave trading).

      [99].   See Bassiouni, supra note 83, at 227–28 (differentiating universal jurisdiction from all other types of jurisdiction).  The other commonly acknowledged bases for jurisdiction are territorial, active personality or nationality, passive personality, and protective.  Id. at 227; see also Hwang, supra note 77, at 469 nn.79–81 (defining the different bases of jurisdiction).

    [100].   See Bassiouni, supra note 83, at 228–29 (stating there are certain crimes so serious in their nature that those who commit them are hostis humani generis(“an enemy of all mankind”) and thus affect the interests of all States); see also CrimC (Jer) 40/61 Attorney General of Israel v. Eichmann, 45 PM 3, Part II, ¶ 12 (1961) (“The abhorrent crimes defined in this Law are crimes not under Israeli law alone.  These crimes which offended the whole of mankind and shocked the conscience of nations are grave offenses against the law of nations itself (‘delicti juris gentium’).  Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial.  The jurisdiction to try crimes under international law is universal.”).

    [101].   See M. Cheriff Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81, 88(2001) (equating modern principles of universal jurisdiction to the ancient Roman concept of actio popularis—the community acting for the good of the whole).

    [102].   See Boed, supra note 24, at 299–300 (explaining the principle of erga omnes, which entails States having an obligation not to violate basic human rights).

    [103].   See id. at 301–02 (discussing that erga omnes obligations do not automatically establish universal jurisdiction for various crimes).

    [104].   See Bassiouni, supra note 83, at 232–34 (examining conventional laws that clearly state principles of universal jurisdiction, such as the Geneva Conventions, the Apartheid Convention, the Convention on the Law of the Sea, the Genocide Convention, and the Hostages Convention); Bassiouni, supra note 101, at 119 (indicating that scholarship generally supports the customary law proposition and thus the author continues to evaluate State practice for a determination of customs toward universal jurisdiction); see also Scharf, supra note 1, at 34 (noting that there is no treaty for crimes against humanity that includes the principle of aut dedere au judicare (“extradite or prosecute”)).

    [105].   E.g., Boed, supra note 24, at 308 (indicating that a State’s exercise of jurisdiction for crimes against humanity would likely be valid even when the violation of law is committed by foreign nationals abroad and the State lacked any nexus to the crime); L.C. Green, Low-Intensity Conflict and the Law, 3 ILSA J. Int’l & Comp. L. 493, 516 (1997) (“[I]t may probably be said that it is now well established that crimes committed during a low-intensity or non-international armed conflict which amount to crimes against humanity are . . . subject to universal jurisdiction . . . .”); Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int’l L. 554, 569 (1995) (“It is now widely accepted that crimes against humanity . . . are subject to universal jurisdiction.”); Orentlicher,Cambodian Killing Fields, supra note 1, at 705 (“International legal responsibility for some offenses is reflected in the fact that genocide, certain war crimes, and crimes against humanity are subject to universal jurisdiction.”).  But see Bassiouni, supra note 101, at 136 (contending that the fact that a very small number of States have enacted legislation fails to prove there is customary law).

    [106].   Bassiouni, supra note 101, at 83.  Bassiouni later stated that national legislation and judicial practice is currently insufficient to establish an international customary practice for universal jurisdiction.  Id. at 150.

    [107].   See Scharf, supra note 1, at 34–35 (discussing that domestic courts of all nations could punish violators if enabled).

    [108].   See Restatement (Third) of Foreign Relations Law § 404 (1986) (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern . . . .”).

    [109].   M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Practice 660–63 (2011).

    [110].   See supra notes 24–26 and accompanying text; see also O’Shea, supra note 9, at 197–98 (noting that a customary duty for States to prosecute would mean that all States are bound to this obligation and therefore have no other option except for the alternative of extradition).

    [111].   An exception is the crime of torture, which is an enumerated act within crimes against humanity and is also subject to its own convention, which appears to prohibit amnesty.  See sources cited supra note 26.

    [112].   See Garth Meintjes, Domestic Amnesties and International Accountability, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court 83, 86 (Dinah Shelton ed., 2000) (discussing that international law would not invalidate a domestic amnesty, but conversely domestic amnesty would not bar international criminal liability).

    [113].   This situation would apply to States that employ a “dualist” approach to international law.  Id.  The confusion with crimes against humanity is contrasted with the crimes of genocide or torture, which, due to treaty and customary obligations to prosecute, render domestic amnesty invalid and cannot preclude prosecution either domestically or internationally.  Id. at 87; see also Naomi Roht-Arriaza, Combating Impunity: Some Thoughts on the Way Forward, 59 Law & Contemp. Probs. 93, 100 & n.21 (1996) (suggesting that domestic amnesty would not preclude international prosecution and citing the 1997 Spanish arrest warrant for an Argentine general despite domestic amnesty).

    [114].   See Robinson, supra note 96, at 43 (indicating that this was the first time the definition of crimes against humanity was not imposed on a population by either the victors in a war or by Security Council mandate).  The definition was reached by consensus after negotiations involving 160 States.  Id.

    [115].   See Rep. of the Int’l Law Comm’n, 48th Sess, May 6–July 26, 1996, art. 18, cmt. 2, U.N. Doc. A/51/10; GAOR, 51st Sess., Supp. No. 10 (1996) (incorporating the definition of crimes against humanity from the IMT Charter with later developments in international law).

    [116].   Rome Statute, supra note 71, art. 7(1).

    [117].   Id. art. 7(2); see also Rep. of the Preparatory Comm. on the Establishment of an Int’l Criminal Court (vol. I), para. 86, U.N. Doc. A/51/22; GAOR, 51st Sess., Supp. No. 22 (1996) [hereinafter Rep. of the Preparatory Comm. (vol. I)] (discussing that “civilian population” is commonly used to refer to situations involving armed conflict in international humanitarian law, but in the current context that distinction is unnecessary since the statute for crimes against humanity applies to all citizens of a State regardless of the existence of armed conflict).

    [118].   Rape, murder, assault, deprivation of physical liberty/false imprisonment, persecution, etc., as defined by municipal statutes, are only subject to the rules governing internal law.  See generally Van Schaack, supra note 78 (investigating elements to distinguish crimes against humanity from domestic crimes).

    [119].   See Rep. of the Preparatory Comm. (vol. I), supra note 117, para. 84 (focusing primarily on the criteria in Article 3 of the ICTR Statute).

    [120].   ICTR Statute, supra note 90, art. 33 (“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for . . . attack[s] against any civilian population on national, political, ethnic, racial or religious grounds . . . .”).

    [121].   Rep. of the Preparatory Comm. (vol. I), supra note 117, para. 87.

    [122].   Id. paras. 88–89; see also Robinson, supra note 96, at 45–46 (noting that a minority of delegations felt that crimes against humanity could only be committed in an armed conflict, but a majority of delegations believed that this restriction would be inconsistent with post-IMT developments); cf. Hwang, supra note 77, at 489 (stating that the failure to include a nexus to armed conflict as an element created concern about how to distinguish domestic crimes from those that are serious crimes of international concern).

    [123].   See Preparatory Comm’n for the Int’l Criminal Court, Finalized Draft Text of the Elements of Crimes, art. 7, U.N. Doc. PCNICC/2000/1/Add.2 (2000) [hereinafter Elements of Crimes Finalized Draft].

    [124].   Id.

    [125].   Id.  This may be an application of the principle espoused by the Chamber of the ICTY, which only required the violator to have “knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis.”  Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Opinion and Judgment, ¶ 659 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).

    [126].   Rome Statute, supra note 71, art. 7.

    [127].   See supra notes 86–88 and accompanying text.

    [128].   See Rep. of the Int’l Law Comm’n, supra note 115, art. 18, cmt. (5) (indicating that the action may come from a government or from an organization or a group, may or may not be affiliated with a government, and applies to acts by private citizens or agents of a State).  The text omits any intention or goal of the attack and states only that it must be organized.  Id. art. 18, cmt. (3).  This would be consistent with the application of crimes against humanity to German industrialists and businessmen who took advantage of slave labor for private gain during World War II.  See Ratner & Abrams, supra note 26, at 67.

    [129].   Three draft proposals over three consecutive years all included the wording “systematic [and][or] widespread.”  Rep. of Preparatory Comm. on the Establishment of an Int’l Criminal Court, Addendum, at 30–31, U.N. Doc. A/Conf.183/2/Add.1 (1998); Decisions Taken by the Preparatory Comm. at Its Session Held from 11 to 21 Feb. 1997, at 3, U.N. Doc. A/AC.249/1997/L.5; GAOR, 52nd Sess. (1997); Rep. of the Preparatory Comm. on the Establishment of an Int’l Criminal Court (vol. II), at 65, U.N. Doc. A/51/22; GAOR, 51st Sess., Supp. No. 22A (1996).  The fact that the two options were shown in successive drafts over several years shows debate and inability to decide this wording.

    [130].   Rep. of the Int’l Law Comm’n, supra note 115, art. 18 & cmts. (4)–(5).

    [131].   Id. art. 18, cmt. (4).  The purpose was to exclude an isolated act by an individual acting independently and directing the attack against a single victim.  Id.

    [132].   Id. art. 18, cmt. (3).  The purpose of this requirement was to exclude random acts of violence not connected to a broader plan.  Id.

    [133].   See Elements of Crimes Finalized Draft, supra note 123, art. 6(a) (“The perpetrator killed one or more persons.” (emphasis added)).

    [134].   Rep. of the Int’l Law Comm’n, supra note 115, art. 18, cmt. (4).  This would be consistent with previous ICTY rulings that a single act could constitute a crime against humanity when taken within the context of a widespread systematic attack.  Prosecutor v. Blagojević & Jokić, Case No. IT-02-60-T, Trial Chamber Opinion and Judgment, ¶ 545 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 17, 2005); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Opinion and Judgment, ¶ 649 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).

    [135].   See U.N. Secretary-General, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, ¶ 24, U.N. Doc. S/2006/893 (Nov. 15, 2006) (recognizing the possibility that the assassination of Mr. Rafik Hariri, the former Lebanese prime minister, satisfied the customary requirements for a crime against humanity); cf. Ratner & Abrams, supra note 26, at 61 (suggesting that the execution of Hungarian leader Imre Nagy in 1956 by Soviet authorities was a crime against humanity because the Soviets intended the act to intimidate the entire civilian population).

    [136].   Cf. Ratner & Abrams, supra note 26, at 61–62 (suggesting that “a group of Rwandan Hutus under the influence of drugs ransacking a Tutsi town and massacring its inhabitants” would constitute a crime against humanity).

    [137].   Tadic, Case No. IT-94-1-T, ¶ 649 (“Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable.  Although it is correct that isolated, random acts should not be included in the definition of crimes against humanity, that is the purpose of requiring that the acts be directed against a civilianpopulation and thus ‘[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution.’” (alteration in original) (citation omitted)).

    [138].   See Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Chamber Judgment, ¶ 550 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000) (“For example, the act of denouncing a Jewish neighbour to the Nazi authorities – if committed against a background of widespread persecution – has been regarded as amounting to a crime against humanity.” (citation omitted)).

    [139].   Hwang, supra note 77, 497 & nn.239–40 (describing from her notes the Canadian proposal at the Rome Conference).  Many nongovernmental organizations were concerned this was an attempt to make the elements de facto cumulative.  Id. at 498–99.

    [140].   Webster’s Third New International Dictionary 1485 (Philip Babcock Gove ed., 1993) (defining “multiple” as “consisting of, including, or involving more than one.”).

    [141].   Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, No. ICC-02/11, ¶¶ 28–29 (Oct. 3, 2011) [hereinafter Côte d’Ivoire Investigation].

    [142].   Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Jun. 12, 2002).

    [143].   Id. ¶ 98.

    [144].   Côte d’Ivoire Investigation, supra note 141, ¶¶ 28, 42–43.

    [145].   See generally Asia-Pacific Ctr. for the Responsibility to Protect, Cyclone Nargis and the Responsibility Project: Myanmar/Burma Briefing No. 2 (May 16, 2008), available at http://www.r2pasiapacific.org
/documents/Burma_Brief2.pdf (discussing whether the blocking of humanitarian assistance by the Myanmar (Burma) government constituted crimes against humanity).  The French Foreign Minister and Ambassador argued that a refusal to accept aid after an environmental disaster is a crime against humanity if it results in systematic or widespread death.  Id. at 2.

    [146].   Rome Statute, supra note 71, art. 7(2)(b) (“‘Extermination’ includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”).

    [147].   E.g., Mugesera v. Can., [2005] 2 S.C.R. 100 (Can.), ¶¶ 157–58 (stating that there currently does not appear to be any requirement that a policy underlie an attack); The Queen v. Munyaneza, [2009] QCCS 2001 ¶ 114 (Can. Que.) (noting that “international jurisprudence establishes that the attack need not be the result of an official policy of the State or government”).

    [148].   Bassiouni, supra note 109, at xxxiv.

    [149].   Rome Statute, supra note 71, art. 10 (“Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”).

    [150].   E.g., Statute of the Special Court for Sierra Leone, supra note 8, art. 2 (“The Special court shall have power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population . . . .”); On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, United Nations Transitional Administration in East Timor, sec. 5, U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000) (“‘Crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack and directed against any civilian population, with knowledge of the attack . . . .”).

    [151].   See Bassiouni, supra note 101, at 94–95 (noting that advocates have relied on certain judicial opinions in an attempt to show that “unbridled universal jurisdiction” is established law).  This is because “[u]niversal jurisdiction transcends national sovereignty” with no limits of territorial jurisdiction.  Id. at 96.

    [152].   Boed, supra note 24, at 306 (indicating that a recent study found that twenty-four States have passed legislation permitting this type of jurisdiction); David Scheffer, Opening Address, 35 New Eng. L. Rev. 233, 236 (2001) (observing that Canada, France, Germany, the United Kingdom, and other signatories of the ICC have created new legislation to conform their laws to the definition of crime in the Rome Statute).  Canada now permits a domestic court to exercise universal jurisdiction for crimes against humanity committed outside of Canada against foreign victims if the perpetrator is present in Canada.  Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, arts. 6, 8(b) (Can.).

    [153].   See Leila Nadya Sadat, Redefining Universal Jurisdiction, 35 New Eng. L. Rev. 241, 243 (2001) (noting that national courts have increasingly been responsible for the prosecution of foreigners for crimes committed in a different state); see also Monica Hans, Comment, Providing for Uniformity in the Exercise of Universal Jurisdiction: Can Either the Princeton Principles on Universal Jurisdiction or an International Criminal Court Accomplish This Goal?, 15 Transnat’l Law.357, 368–78 (2002) (examining recent legal developments in Belgium and Spain).

    [154].   Scheffer, supra note 152, at 233 (“Universal jurisdiction is not a broadly adhered-to standard.  Everyone talks about universal jurisdiction, but almost no one practices it.  It has been a mostly rhetorical exercise since World War II.”).  In past years, governments were very reluctant and resisted exercising jurisdiction over Pol Pot, Kurd leader Ocalan, and former Ethiopian leader Mengistu.  Id. at 235–36.

    [155].   See Bassiouni, supra note 101, at 91–92.  States exercised territorial jurisdiction over the IMT and IMTFE tribunals as occupying powers.  Id. at 91.  The Security Council established ICTY and ICTR based on Chapter VII powers with enforcement established via ad hoc tribunals.  Id.

    [156].   Regina v. Bartle, [1999] 1 A.C. 147 (H.L.) (appeal taken from U.K.), reprinted in 38 I.L.M. 581, 582–83 (1999).  See generally Naomi Roht-Arriaza, The Pinochet Precedent and Universal Jurisdiction, 35 New Eng. L. Rev. 311 (2001) (providing background information on Regina and its impact on both Argentina and Chile).

    [157].   See Roht-Arriaza, supra note 156, at 314 (noting that, in the beginning, the case purposefully featured victims from the forum State and, therefore, used a basis of jurisdiction other than universality).

    [158].   Regina, 38 I.L.M. at 591.

    [159].   Roht-Arriaza, supra note 156, at 313.

    [160].   Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–2008, 30 Mich. J. Int’l L. 927, 931–32 (2009).  There have also been attempted exercises of universal jurisdiction in Africa, such as Senegal’s 2000 indictment of Hissene Habre, former dictator of Chad, on charges of torture.  Reed Brody, The Prosecution of Hissène Habré – An “African Pinochet”, 35 New Eng. L. Rev. 321, 327–34 (2001) (stating that the case signaled that the “Pinochet precedent” will be used outside of Europe); Ex-Chad Ruler Is Charged by Senegal with Torture, N.Y. Times, Feb. 4, 2000, at A3 (indicating that the Pinochet arrest inspired the Habre indictment).

    [161].   R v. Zardad, Cent. Crim. Ct. (Old Bailey), Apr. 7, 2004, ¶¶ 13–14 (Eng.) (unpublished), available at http://www.redress.org/downloads/news/zardad
%207%20apr%202004.pdf.

    [162].   Id. ¶¶ 11–12.

    [163].   Vikram Dodd, Terror Police Feared Gun Battle with Israeli General, Guardian (Feb. 19, 2008, 5:34 PM), http://www.guardian.co.uk/uk/2008/feb
/19/uksecurity.israelandthepalestinians.

    [164].   Paisley Dodds, UK Tightens Rules on Arresting Foreigners, Guardian (Sept. 15, 2011), http://www.guardian.co.uk/world/feedarticle/9848978.

    [165].   Prosecutor v. Kallon, Case No. SCSL-2004-15-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, ¶¶ 71, 88 (Mar. 13, 2004) (Spec. Ct. Sierra Leone).

    [166].   Id. ¶ 88.

    [167].   Id. ¶¶ 67, 70.

    [168].   Pub. Prosecuting Auth. v. Repak, Case No. 08-018985MED-OTIR/08, Judgment, ¶¶ 6–11 (Dec. 2, 2008) (Nor.).

    [169].   Id. ¶¶ 8, 10.

    [170].   Id. ¶ 4.

    [171].   Id. ¶ 9.

    [172].   Id. ¶¶ 8, 16.

    [173].   Id. ¶ 8.

    [174].   Id.

    [175].   See generally Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (2001) (campaigning for all States to enact universal jurisdiction legislation).

    [176].   Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, Bundesgesetzblatt, Teil I [BGBl. I] 1074, as amended, §§ 230(1), 232 (Ger.).

    [177].   Code de Procédure Pénale [C. pr. pén] arts. 410, 487 (Fr.); Wetboek van Strafvordering [Sv] art. 280 (Neth.).

    [178].   Hans, supra note 153, at 381–82 (noting that Belgium has been at the forefront of States using domestic law enabling universal jurisdiction and is especially aggressive in attempting to hold foreign leaders accountable for crimes against humanity).  Belgium charged Ndombasi with crimes against humanity and war crimes for inciting racial hatred that resulted in several hundred deaths.  Id. at 382.

    [179].   See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 20–21, 25–26, 32–33 (Feb. 14).  Arrest warrants for Zimbabwean President Robert Mugabe and a case against then-President George W. Bush were dropped for the same reason.  See Kaleck, supra note 160, at 936–37, 940.

    [180].   Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. at 63–65, 68 (joint separate opinion of Judges Higgins, Kooijmans and Buergenthal).

    [181].   See Kaleck, supra note 160, at 933–35 (indicating that Belgium alone has initiated cases against former Chinese President Jiang Zemin, former U.S. President George H.W. Bush, former Secretary of Defense and Vice President Richard Cheney, and former Chadian Dictator Hissene Habre, and has attempted a case against a former Israeli prime minister).

    [182].   Restatement (Third) of Foreign Relations Law § 403(1) (1986) (“[A] state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.”).

    [183].   See id. §§ 403–04.

    [184].   See Ratner & Abrams, supra note 26, at 143–44 (discussing that many States showed a willingness to eliminate statutes of limitations for crimes against humanity).  On the international level, the international community formed the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity to prohibit States from imposing any temporal limitations for these crimes.  Id. at 143.  As of 2000, there were only forty-four parties to the treaty.  Id.

    [185].   The principle of complementarity between States has also been raised as a potential problem for prosecution.  Kaleck, supra note 160, at 960.  Since this determination is within the sole discretion of the prosecuting State, however, it does not serve as a barrier to the threat of prosecution.  See id. at 960–61.

    [186].   See Bartram S. Brown, The Evolving Concept of Universal Jurisdiction, 35 New Eng. L. Rev. 383, 390 (2001) (discussing that the law rises above the interests of individual States and States no longer have a legitimate interest in shielding their citizens).

    [187].   See Sadat, supra note 153, at 258–59 (discussing that most international conflicts of laws apply the principle that each State may apply its own law to a problem unless there is a prohibition).

    [188].   See id. (indicating that an amnesty for a crime violating an international norm would be ineffective if the defendant travels abroad).

    [189].   Rome Statute, supra note 71, pmbl. (affirming that serious crimes of international law must not go unpunished); see Young, supra note 26, at 458 (indicating that the language of the Rome Statute establishes a commitment to individual responsibility and ending impunity).

    [190].   Rome Statute, supra note 71, art. 1 (The jurisdiction “shall be complementary to national criminal jurisdictions”); Johan D. van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 Emory Int’l L. Rev. 1, 66–71 (2000) (“ICC jurisdiction is complementary to national courts . . . .”).  Complementarity denotes that “national courts have the first right and obligation to prosecute perpetrators of international crimes, and because ICC jurisdiction is complementary to national courts, ICC jurisdiction can only be invoked if the national court is unwilling or unable to prosecute.”  Id. at 66.

    [191].   Rome Statute, supra note 71, art. 12(2)(a).

    [192].   Id. art. 12(2)(b).

    [193].   Young, supra note 26, at 464 (noting that there is no explicit mention of amnesty in the Rome Statute, but the ICC must eventually consider the issue if it is going to act as a substitute for national prosecution); see also Arsanjani, supra note 19, at 67 (stating that at the preparatory phase of negotiations, the delegates did not seriously discuss how to address domestic amnesties due to pressure from human rights groups).

    [194].   An international conference was held in Rome from June 15 to July 17, 1998 to produce the statute for the establishment of the ICC.  History of the ICC, Coalition for Int’l Crim. Ct., http://www.iccnow.org/?mod=Icchistory (last visited Oct. 1, 2012).

    [195].   See Scharf, supra note 22, at 521–22 (citing Interview with Philippe Kirsch, Rome Diplomatic Conference Chairman, in Fr. (Nov. 19, 1998)).  The adopted provisions reflect “creative ambiguity.”  Id. at 522 (citing Interview with Philippe Kirsch, supra).

    [196].   Rome Statute, supra note 71, art. 5.

    [197].   As of February 1, 2012, 139 States signed the Rome Statute, and 121 ratified and became party to the ICC.  Ratification Status of the International Criminal Court, Coalition for Int’l Crim. Ct., http://www.iccnow.org/?mod
=romeratification (last visited Oct. 1, 2012).  Guatemala became the most recent party when its Congress voted to ratify the Rome Statute on January 26, 2012.  Press Release, Int’l Criminal Court, Guatemala Becomes the 121st State to Join the ICC’s Rome Statute System (Apr. 3, 2012), http://www.icc-cpi.int/NR/exeres/E2BBA18C-A830-4504-B9BE
-6F118C3690F7.htm.

    [198].   Rome Statute, supra note 71, art. 86 (imposing an affirmative duty to cooperate fully with the ICC in its investigation and prosecution of crimes against humanity).  States must also comply with requests for arrest and surrender of perpetrators.  Id. art. 89(1).

    [199].   Id. pmbl. (affirming responsibility for effective prosecution and punishment for serious crimes and declaring that all States have a duty to exercise criminal jurisdiction over those liable for international crimes); Arsanjani, supra note 19, at 67 (noting that the Rome Statute appears hostile to amnesties for crimes against humanity); Scharf, supra note 22, at 522 (citing Rome Statute, supra note 71, pmbl.) (indicating that the Preamble suggests that amnesty is incompatible with the purpose of the ICC).

    [200].   See discussion of “complementarity” supra note 190.

    [201].   Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, art. 40, NS/RKM/1004/006 (Oct. 24, 2004) (“The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes . . . .  The scope of any amnesty or pardon that may have been granted prior to the enactment of this Law is a matter to be decided by the Extraordinary Chambers.”); Statute of the Special Court for Sierra Leone, supra note 8 (“An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.”); see also S.C. Res. 1757, Attachment art. 6, U.N. Doc. S/RES/1757 (May 30, 2007) (“An amnesty granted to any person for any crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution.”).

    [202].   See Rome Statute, supra note 71, pmbl. (noting that the States who became parties to the Rome Statute were “[d]etermined to put an end to impunity for the perpetrators of these crimes”).

    [203].   E.g., Scharf, supra note 22, at 524–25 (noting that both Articles 17 and 20 prevent the trying of a case if it is already being tried in another court); Young,supra note 26, at 465–69 (indicating that Articles 17 and 20 might permit amnesty if it is combined with a truth commission or civil proceedings instead of a criminal trial).

    [204].   Rome Statute, supra note 71, art. 17(1)(a).

    [205].   Id. art. 17(2)(a).

    [206].   Id. art. 17(2)(c).

    [207].   Id. art. 20(3).

    [208].   Id. art. 20(3)(b).

    [209].   See Webster’s Third New International Dictionary, supra note 140, at 71.

    [210].   Cf. Young, supra note 26, at 464–65 (noting that a literal reading of the Articles indicates that they require an actual trial).  Investigation must involve identifying those responsible, imposing sanctions, and providing reparation to victims.  Id. at 479 n.260 (citing Chanfeau Orayce v. Chile, Cases 11.505 et al., Inter-Am. Comm’n H.R., Report No. 25/98, OEA/ser.L/V/II.98, doc. 7 rev., ¶ 70 (Apr. 7, 1998)).

    [211].   Henrard, supra note 23, at 629 (indicating that the prosecutor could refuse to prosecute based upon the belief that an amnesty agreement is acceptable); Scharf, supra note 22, at 524 (discussing that the ICC’s prosecutor can decide to respect an amnesty-for-peace agreement); Young, supra note 26, at 469–70 (noting that the ICC’s prosecutor may determine whether amnesty serves the interests of justice).

    [212].   Rome Statute, supra note 71, art. 53(1)(c).  The prosecutor can decline to initiate an investigation after examining the seriousness of the crime and the interests of the victims and then deciding “there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”  Id.

    [213].   Id. art. 53(3)(a) (“[T]he Pre-Trial Chamber may review a decision of the Prosecutor . . . not to proceed and may request the Prosecutor to reconsider that decision.”).

    [214].   Côte d’Ivoire Investigation, supra note 141, ¶ 207.

    [215].   Rome Statute, supra note 71, art. 53(3)(a).  The choice is up to the Prosecutor whether to recognize societal choices.  Id.; see also Richard J. Goldstone & Nicole Fritz, ‘In the Interests of Justice’ and Independent Referral: The ICC Prosecutor’s Unprecedented Powers, 13 Leiden J. Int’l L. 655, 659 (2000) (noting that the factors influencing domestic decisions to not prosecute are not necessarily replicated internationally).

    [216].   See Rome Statute, supra note 71, art. 29 (“The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.”); id. art. 53(4) (“The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.”).

    [217].   Id. art. 120.

    [218].   Id. Declaration of Colombia, ¶ 1 (“None of the provisions of the Rome Statute concerning the exercise of jurisdiction by the International Criminal Court prevent the Colombian State from granting amnesties, reprieves or judicial pardons for political crimes, provided that they are granted in conformity with the Constitution and with the principles and norms of international law accepted by Colombia.”).

    [219].   Id. art. 120 (“No reservations may be made to this Statute.”)

    [220].   All Situations, Int’l Crim. Ct., http://www.icc-cpi.int/Menus/ICC
/Situations+and+Cases/Situations/ (last visited Oct. 1, 2012).

    [221].   All Cases, Int’l Crim. Ct., http://www.icc-cpi.int/Menus/ICC
/Situations+and+Cases/Cases/ (last visited Oct. 1, 2012).

    [222].   Id.  The indictments led to the first successful conviction in the ICC on March 14, 2012, which was for rebel leader Thomas Lubanga Dyilo of the Democratic Republic of Congo.  Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, ¶¶ 1, 1358 (Mar. 14, 2012).

    [223].   Vienna Convention on the Law of Treaties, art. 27, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”).

    [224].   Rome Statute, supra note 71, art. 59(1) (stating that a State which has received a request for arrest and surrender shall immediately comply with the request); see also Vienna Convention on the Law of Treaties, supra note 223, art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”).

    [225].   Charles Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 205, 212 (2000).

    [226].   Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity Under International Law 12 & n.16, 25 (2007) (discussing amnesties granted by the U.S. government, including to participants in the Whiskey Rebellion and to both U.S. citizens and soldiers after the U.S. Civil War and the Korean War); O’Shea, supranote 9, at 20–21 (discussing that between 1867 to 1872, President Andrew Johnson and the U.S. Congress passed a general amnesty act after the Civil War and the President of Brazil negotiated the end of a war by granting amnesty to the rebels).

    [227].   26 Apr. 2001, Parl. Deb., H.C. (2001) (U.K.), available at http://www.publications.parliament.uk/pa/cm200001/cmstand/d/st010426/pm
/10426s01.htm (“[M]any of the crimes that the IRA and some of the loyalist groups had committed could be categorized as crimes against humanity as set out in the statute of Rome . . . .  It is perfectly clear to all of us that it would [be] easy for an international court to argue that those on either side who had been responsible for such atrocities could be hauled before it.  People in this country would greatly resent that.  Some of us bitterly resent the fact that the Government gave an amnesty to some of those in the IRA who were responsible for the most horrendous terrorist crimes and who murdered friends of ours.  Nevertheless, we accept that some leeway had to be given in a spirit of reconciliation if peace was to be secured in Northern Ireland.”).

    [228].   See Bell, supra note 20, at 6 (discussing that peace agreements “embody a set of understandings between some of the protagonists to a conflict” as to exactly how the conflict will be resolved).

    [229].   E.g., Naomi Roht-Arriaza, Prosecutions of Heads of State In Latin America, in Prosecuting Heads of State, supra note 3, at 46, 46–76 (discussing that Latin America has seen a significant reversal with previous amnesty laws overturned decades later by domestic courts).

    [230].   See Williams & Scharf, supra note 5, at 30 (noting that officials engaged in negotiating the end of the conflict in the former Yugoslavia contended that assurances of amnesty were necessary as an incentive to end fighting).

    [231].   Cf. Bell, supra note 20, at 286 (discussing that amnesty is normally a common feature when there is no victory or “overthrow” by any of the parties at the end of the conflict).

    [232].   Id. (noting that the move towards accountability affects the mechanisms available for dealing with past conflict and abuses).

    [233].   U.N. Charter art. 24.  The Security Council consists of fifteen members of the U.N., with five permanent members.  See Membership in 2012, U.N. Security Council, http://www.un.org/sc/members.asp (last visited Oct. 1, 2012).  Its purpose is to ensure effective action in the U.N. by having a smaller representative council capable of imposing binding decisions.  U.N. Charter arts. 24–26.

    [234].   U.N. Charter art. 24.

    [235].   Id. art. 39.

    [236].   E.g., S.C. Res. 918, ¶ 13, U.N. Doc. S/RES/918 (May 17, 1994) (using Chapter VII powers to impose a weapons and parts embargo on Rwanda in an attempt to resolve the conflict); S.C. Res. 873, ¶¶ 1, 4, U.N. Doc. S/RES/873 (Oct. 13, 1993) (permitting the releasing of frozen funds under Chapter VII powers, but confirming the possible imposition of other measures to assist in the negotiations to restore democracy in Haiti).

    [237].   E.g., S.C. Res. 169, ¶¶ 1, 6, U.N. Doc. S/RES/169 (Nov. 24, 1961) (requesting States to refrain from supplying weapons which could be used by secessionist groups in the Congo); S.C. Res. 161, ¶ 1, U.N. Doc. S/RES/161 (Feb. 21, 1961) (permitting the U.N. to use force if necessary to prevent civil war in the Congo).

    [238].   S.C. Res. 161, supra note 237 (reiterating that the plight of people suffering under a purely internal conflict in Congo affects both world peace and international cooperation).

    [239].   U.N. Charter arts. 39, 41.

    [240].   Id. art. 36(2).

    [241].   See id. arts. 24, 25.

    [242].   Member States of the United Nations, United Nations, http://www.un.org/en/members/index.shtml (last visited Oct. 1, 2012).

    [243].   See U.N. Charter arts. 1(1), (3), 24(2).

    [244].   Rome Statute, supra note 71, art. 16 (“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”).

    [245].   Id.

    [246].   Ruth Wedgwood, The International Criminal Court: An American View, 10 Eur. J. Int’l L. 93, 98 (1999).

    [247].   Rome Statute, supra note 71, arts. 17(1)(d), 53(1)(c).

    [248].   U.N. Charter art. 103.

    [249].   Id.

    [250].   R v. Sec’y of State for Defence, [2007] UKHL 58, 1 A.C. 332 (H.L.) [26–39] (appeal taken from Eng.).

    [251].   Id.

    [252].   Id. at [27].

    [253].   See generally U.N. Secretary-General, The Situation of Democracy and Human Rights in Haiti, U.N. Doc. A/47/975-S/26063 (July 12, 1993).

    [254].   Scharf, supra note 1, at 7 (quoting U.N. SCOR, 48th Sess., 3238th mtg. at 120, 126, U.N. Doc. S/INF/49 (1993)).

    [255].   See generally S.C. Res. 948, U.N. Doc S/RES/948 (Oct. 15, 1994).

    [256].   See generally S.C. Res. 2014, U.N. Doc S/RES/2014 (Oct. 21, 2011).

    [257].   Id. ¶ 4.

    [258].   Assia Boundaoui, Yemeni Americans Protest Against Saleh’s US Trip, World (Feb. 23, 2012), http://www.theworld.org/2012/02/yemeni
-americans-protest-against-salehs-us-trip/.

    [259].   See U.N. Charter art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” (emphasis added)).  Though the Security Council has utilized a variety of terms to indicate binding authority, the clearest usage is when the Security Council states that it “decides” a certain action.

    [260].   An example would be Colombia and its multifaceted civil war including widespread atrocities.  See Villa-Vicencio, supra note 225, at 206 (suggesting that legal absolutism is sometimes not helpful and is unrealistic).

    [261].   See Committee on Economic, Social and Cultural Rights Concludes Session, ScienceBlog (Dec. 9, 1997), http://scienceblog.com/community/older
/archives/L/1997/B/un971881.html (noting that the committee adopted a “General Comment” that began to examine whether the Security Council must determine if human rights suffering is occurring as a result of Chapter VII sanctions).

    [262].   See U.N. Charter art. 27(3).

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