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Abstract

This article will address the question of how the international community should respond when the pursuit of justice and the attainment of peace are incompatible. It begins with an overview of the international human rights movement prior to World War II, a period when there was almost no effort to hold human rights violators accountable. The article then discusses how Nuremberg transformed international human rights law and created the framework for holding individuals accountable for committing egregious human rights violations. In the next section there is a discussion of how, despite Nuremberg, there was an era of impunity as a result of the Cold War. The Cold War permitted many of the twentieth century’s worst human rights violators to escape accountability for their actions. Next, there is a discussion of how the end of the Cold War ushered in a new era of accountability; specifically, in this new era many human rights violators have been brought to justice.

This article suggests that although this new era is welcome, a one size fits all approach should not be adopted. Rather, this paper proposes that whether human rights violators should be prosecuted needs to be determined on a case-by-case basis. It may very well be that in particular situations, an attempt to prosecute may make it more difficult to attain peace and that other approaches may be necessary. The approach taken by South Africa, creating a Truth and Reconciliation Commission and granting amnesty to many perpetrators is examined and supports the position that flexibility is needed when dealing with human rights violators. Finally, the article recommends that when faced with a justice versus peace dilemma, the Security Council should be given the authority to suspend criminal proceedings if it determines that the threat of criminal prosecution presents a risk to international peace and security.

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