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Valparaiso University Law Review Volume 18 Number 2 Winter 1984 pp.373-414 Winter 1984 A World Genocide Tribunal – Rampart Against Future Genocide: Proposal for Planetary Preventive Measures Supplementing a Genocide Early Warning System Luis Kutner Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Luis Kutner, A World Genocide Tribunal – Rampart Against Future Genocide: Proposal for Planetary Preventive Measures Supplementing a Genocide Early Warning System, 18 Val. U. L. Rev. 373 (1984). Available at: https://scholar.valpo.edu/vulr/vol18/iss2/4 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Kutner: A World Genocide Tribunal – Rampart Against Future Genocide: Prop A WORLD GENOCIDE TRIBUNAL- RAMPART AGAINST FUTURE GENOCIDE: PROPOSAL FOR PLANETARY PREVENTIVE MEASURES SUPPLEMENTING A GENOCIDE EARLY WARNING SYSTEM* Luis Kutner** The Armenians had been disarmed and destroyed piecemeal, the men by massacre, the women and children by being driven and over-driven along the wintry roads in- to the desert, naked and hungry, the common prey of any passer by, until death took them. The young Turks had killed the Armenians, and for the same reason they herded Arab Moslems and Arab Christians into the same prison, and hanged them together on the same scaffold. Jemal Pasha united all classes, conditions and creeds in Syria, under pressure of a common misery and peril, and so made a concerted revolt possible.' I. INTRODUCTION This paper considers the feasibility of establishing a world genocide tribunal, adopted by treaty-statute, to try and punish perpetrators of acts of genocide. The proposed tribunal would apply international law, including the Convention on the Prevention and Punishment of Genocide, the Helsinki Accords, and other human rights declarations, covenants and conventions, directly on the individual, whether violator or victim, and function as a guardian of human liberty and the sanctity of life, giving constructive notice to terrorists and tyrants that no abuse of human beings will be tolerated by the inter- national community. The tribunal, functioning jointly with a genocide early warning system or world ombudsman, would initiate appropriate preventive * This paper was presented before the International Conference on the Holocaust and Genocide on June 22, 1983. ** LL.B.; J.D.; Member, Illinois Bar; Chairman, Commission for International Due Process of Law; 1972 Congressional Nominee, Nobel Peace Prize; Consul for Ecuador; Consul General For Guatemala; Special Assistant Attorney General, State of Illinois; former visiting Associate Professor, Yale Law School; lecturer in many univer- sities including The University of Denver; author of WORLD HEAS CORPUS, THE LIVING WILL AND THE RIGHT TO DIE WITH DIGNITY; Member, Senior Citizens Crime Commission, World Advocates Center, World Court of Public Opinion, World Court of Human Rights. The research of Ernest Katin, Ph.D., of Israel, is gratefully acknowledged. 1. T. LAWRENCE, SEVEN PILLARS OF WISDOM. Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 2 [1984], Art. 4 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 measures. The tribunal would be empowered to hear petitions of in- dividuals or groups and to take action to prevent or mitigate poten- tial genocidal actions. Individuals arbitrarily restrained in genocide related action would be conferred with the right to petition for writs of World Habeas Corpus, the internationalization of the common law writ. The some 850 million people who are among the dispossessed groups of the world would be provided with redress and protection from the powerful. The tribunal would be a legal breakthrough for public world order. Nazism, with its espousal of the "super-race," and the designa- tion of Jews and other national groups as "sub-human," rejected the concept of humanity. The holocaust epitomized the negation of human rights. The war atrocities so shocked mankind that the need for establishing a new world order became apparent. The holocaust had represented a climax of accumulated violations of human rights by the Nazi regime. The right to life was denied. The doctrine of state sovereignty had impeded effective inter- national action. In the 1930's the notion still prevailed in too many places that human rights issues were primarily matters of domestic concern. The protection of human rights as such was seriously neglected. Rene Cassin described the situation which prevailed when Hitler came to power: Complaints were formulated against him in Geneva for the violation of guarantees laid down in regular treaties and Hitler replied: "I am master in my own house. You have no right to interfere with me in my dealings with persons resident in Germany." Or in other words "I have powers of life and death over my people. It is no concern of yours." It was then that the great conflict occurred. Since there had been no organization of human rights; human beings in Germany were left to be crushed by the power in the land. Later it was the men of other nations, followed by the nations themselves and finally by the whole world that came into the war. Thus it was that, at the end of the war, it proved to be necessary to organize the international pro- tection of human rights, simply because the world had gone through a blood bath owing to the lack of this precaution 2. Cassin, InternationalInstitutions, in WORLD VETERANS FEDERATION INSTITU- TIONS FOR THE PROTECTION OF HUMAN RIGHTS 19, 20-21 (1964), quoted in Kutner, World Habeas Corpus, Human Rights and World Community, 17 DE PAUL L. REv. 3, 23 (1967). https://scholar.valpo.edu/vulr/vol18/iss2/4 Kutner: A World Genocide Tribunal – Rampart Against Future Genocide: Prop 1984] WORLD GENOCIDE TRIBUNAL Unfortunately, the present world system for protecting human rights, including genocide, is ineffective. Mass killings and gross violations of human rights have continued unchecked. The concept of "heritage of mankind" and "crimes against humani- ty" has been characterized as "contemporary pomposities."3 The Nuremberg Judgment, the Genocide Convention, the Universal Declaration on Human Rights and the Covenants and Conventions had purportedly placed legal restraints on governments. However, the end of World War II did not result in the establishment of a new world order. The decentralized post-Westphalian system continued to prevail as based on state sovereignty. The individual remained an object and not a subject of international law.4 The present international system fails to provide an effective mechanism for the protection of the in- dividual's basic right to life and to freedom from arbitrary detention. The twentieth century has already witnessed several holocausts and the technical means exist for repeated holocausts. The ideology and the remnants of hatred from the Nazi regime continue to pose a planetary threat. But holocausts and new acts of genocide can be averted. Herein will be considered the present state of international law as developed since 1945 and the proposal will be presented for an effective solution leading to a transition towards a legal world order. II. THE NUREMBERG TRIBUNAL-WAR CRIMES AND CRIMES AGAINST HUMANITY The persecutions, expulsions and exterminations of millions of human beings aroused a general sentiment for protection of the human being.5 This sentiment found expression in the Atlantic Charter and in President Roosevelt's formulation of the Four Freedoms. At the end of World War II it was concretely expressed in the London Agree- ment and accompanying Charter of August 8, 1945.6 The London Agreement provided for the establishment of an international military tribunal for the trial of war criminals. The constitution, jurisdiction 3. W. LEVI, CONTEMPORARY INTERNATIONAL LAW: A CONCISE INTRODUCTION 273 (1979). 4. See Lane, Mass Killing by Governments: Lawful in the World Legal Order, 12 INT'L LAW AND POLITICS 239 (1978). 5. See L. Kutner, WORLD HABEAS CORPUS 1 (1962) (introduction by Quincy Wright). 6. London Agreement of August 8, 1945 [hereinafter cited as Agreement], with accompanying charter [hereinafter cited as Charter], E.A.S. No. 472, 82 U.N.T.S. 284 reprinted in 39 AM. J. INT'L L. 258 (Supp. 1945) (official documents). Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 2 [1984], Art. 4 376 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 and functions of the international military tribunal were contained in the accompanying Charter. Together, the London Agreement and Charter were the constitutive authority for the international military tribunal at Nuremberg. The law contained in the London Charter was "decisive and binding upon the Tribunal."7 The charter provides for the punishment of "persons who, acting in the interest of the European Axis coun- tries, whether as individuals or as members of organizations, commit- ted any of the following crimes: (a) crimes against peace; (b) war crimes; (c) crimes against humanity."' The definitions of "war crimes" and "crimes against humanity" as expressed in Section 6 of the charter overlapped. These terms are defined as follows: (b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian populations of or in occupied territory ... (c) Crimes against humanity: namely, murder, exter- mination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where per- petrated.9 Most of the offenses committed during World War II could fit either category.

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