From the Exile Files: An Essay on Trading Justice for Peace

38 Pages Posted: 8 Sep 2005 Last revised: 2 Mar 2020

See all articles by Michael P. Scharf

Michael P. Scharf

Case Western Reserve University School of Law

Date Written: 2006

Abstract

In the spring and summer of 2003, the United States offered exile in lieu of invasion and prosecution to two rogue leaders accused of committing international crimes - Iraqi President Saddam Hussein (who declined) and Liberian President Charles Taylor (who accepted). In this essay, the author argues that the offer to Hussein was inappropriate, as it violated international treaties requiring prosecution, but that the offer to Taylor was permissible under international law. The essay examines the costs and benefits of amnesty and exile-for-peace deals and the limited nature of the international duty to prosecute. Where the duty to prosecute does apply (as where there are accusations of grave breaches of the Geneva Convention, the crime of genocide, and torture), the author argues that it is important that States and international organizations honor it, lest they signal disrespect for the important treaties from which the duty arises, potentially putting their own citizens at risk. Most importantly, the essay reveals that, contrary to the popular scholarly view, there does not yet exist a duty to prosecute crimes against humanity under customary international law or under the natural law concept of "jus cogens."

Keywords: Iraqi President Saddam Hussein, Liberian President Charles Taylor, International duty to prosecute, Amnesty and exile-for-peace deals, International Law, Geneva Convention, jus cogens, crimes against humanity, war crimes, universal jurisdiction, amnesty, and exile

JEL Classification: K33

Suggested Citation

Scharf, Michael P., From the Exile Files: An Essay on Trading Justice for Peace (2006). 63 Washington and Lee Law Review 339 (2006); Case Legal Studies Research Paper No. 05-31. Available at SSRN: https://ssrn.com/abstract=799004

Michael P. Scharf (Contact Author)

Case Western Reserve University School of Law ( email )

Case Western Reserve University, School of Law
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