From Nuremberg to Bosnia to the Nobel Peace Prize
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Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 1997 What Price Peace: From Nuremberg to Bosnia to The Nobel Peace Prize Malvina Halberstam Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Malvina Halberstam, What Price Peace: From Nuremberg to Bosnia to The Nobel Peace Prize, 3 International Law Students Association Journal of International & Comparative Law 571 (1997). Available at: https://larc.cardozo.yu.edu/faculty-articles/348 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. WHAT PRICE PEACE: FROM NUREMBERG TO BOSNIA TO THE NOBEL PEACE PRIZE Malvina Halberstam • In the fifty years that have elapsed since the Nuremberg Trials, we have made tremendous progress in the development of human rights. The Genocide Convention,1 the Convention on Civil and Political Rights,2 the Convention on the Elimination of Racial Discrimination,3 the Convention on the Elimination of Discrimination Against Women; and the Convention Against Torture5 have all been adopted by the United Nations and ratified by the vast majority of states in the world. 6 • Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University Prepared for presentation at the Panel on International Human Rights and Humanitarian Law After Bosnia, The International Law Weekend, New York, November 1, 1996. The author wishes to thank Allan Blutstein, Cardozo 1997, for his assistance in the preparation of this article. 1. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277. 2. International Convention on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. 3. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195. 4. Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979), reprinted in 19 I.L.M. 33 (1980). 5. International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 34th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1984), reprinted in 23 I.L.M. 1027 (1987) . 6. Some of these are now considered to be binding under customary law and even to constitute jus cogens . See Jordan J. Paust, The Significance and Determination of Customary International Human Rights Law: The Complex Nature, Sources and Evidence of Customary Human Rights, 25 GA. 1. INT'L. & COMP. L. 147, 153 (1996) (noting that the prohibition of genocide is a well-recognized peremptory norm of jus cogens); see also RESTATEMENT (fHIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 702, and cmts. d, f (1987) [hereinafter RESTATEMENT); Jordan J. Paust, Symposium, The Ratification of the International Covenant on Civil and Political Rights: Avoiding 'Fraudulent ' Executive Policy: Analysis of Non-Self Execution of the Covenant on Civil and Political Rights, 42 DEPAUL L. REV . 1257, 1274 (1993) (explaining that certain rights reflected in the Covenant on Civil and Political Rights have now become peremptory norms of jus cogens); Nadine Strossen, Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 HASTINGS L.J. 805, 817 (1990) (noting that human rights values embodied in the U.N. Charter, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights are all elements of customary international law that are rapidly ' 572 ILSA Journa.l of Int'l & Comparative Law [Vol. 3:571 Treaties prohibiting various aspects of terrorism, such as hostage taking,' airplane hijacking,' sabotage,9 seizure of ships on the high seas, 10 and attacks on diplomats, 11 have also been ratified by a large number of states. 12 These Conventions, not only prohibit the conduct, but make it criminal 13 or require states parties to make the conduct criminal under their 1 internal laws, • punishable by "severe penalties,"" and require any state in which an alleged offender is found to either prosecute or extradite him. 16 In one respect, however, we have not progressed, and seem to have regressed: those responsible for war crimes, crimes against humanity and terrorism, still go unpunished. They walk free, with impunity, and in some cases are even courted by heads of state and honored with the most prestigious awards that the international community can bestow. In the case of the former Yugoslavia, an International Criminal Tribunal has been established to try those responsible for war crimes and establishing themselves asjus cogens); Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than the States, 32 AM. U. L. REV. 1, 11-12 (1982) (noting that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, as well as about fifty additional declarations and conventions concerning issues such as discrimination against women and racial discrimination, have become a part of international customary law). 7. International Convention Against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. 11081, 1315 U.N.T.S. 205 [hereinafter Hostage Convention] . 8. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641 , 860 U.N.T.S. 105 [hereinafter Hijacking Convention] . 9. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565, 974 U.N.T.S. 177, reprinted in 10 I.L.M. 1151 [hereinafter Sabotage Convention]. 10. Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, 27 I.L.M. 668 (1988) [hereinafter Maritime Terrorism Convention] . 11 . Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167 [hereinafter Internationally Protected Persons Convention] . 12. As of January 1, 1996, -157 States had ratified the Hijacking Convention, supra note 8; U.S. DEP'T OF STATE, TREATIES IN FORCE 326-27 (1996); 157 States had ratified the Sabotage Convention, supra note 9, at 327-28; 94 States had ratified the Internationally Protected Persons Convention, supra note 11, at 441-42; 76 States had ratified the Hostage Convention, supra note 7, at 442; and 32 States had ratified the Maritime Terrorism Convention, supra note 10, at 398. 13. See Hijacking Convention, supra note 8, art. 2; Sabotage Convention, supra note 9, art. 1; Hostage Convention, supra note 7, art. 1; Maritime Terrorism Convention, supra note 10, art. 3. 14. See Internationally Protected Persons Convention, supra note 11, art 2. 15. See e.g., Hijacking Convention, supra note 8, art. 2, 22 U.S.T. at 1646, 860 U.N.T.S. 110. 16. See Hijacking Convention, supra note 8, art. 7; Sabotage Convention, supra note 9, art. 7; Internationally Protected Persons Convention, supra note 11, art. 7; Hostage Convention, supra note 7, art. 8; Maritime Terrorism Convention, supra note 10, art. 10. 1997] Halberstam 573 crimes against humanity. 11 A number of persons, including prominent leaders in the conflict, responsible for unspeakable atrocities, have been indicted. 11 But, they have not been apprehended and brought to trial. 19 There appears to be great reluctance to do s0. 20 Although they have been barred from running for office, and display of their pictures has been prohibited, those seeking office showed empty frames to convey the message that they identify with and have the support of these leaders whose image was barred. 21 The question of whether the leaders should be prosecuted has been the subject of scholarly debate, with some commentators taking the position that perhaps we should forego prosecution. 22 For example, Professor Ruth Wedgwood stated, [i]t may not be possible to bring about a peace settlement in the fonner Yugoslavia if the Tribunal is going forward with active prosecutions of the state leaders of the belligerent parties . You may need to accept a punto final, and sacrifice the prosecutorial interest in general deterrence for the sake of future peace. 23 She suggests that "the slow start. of the Tribunal reflects a fear that the Tribunal's work could impede the peace process. "24 The picture is even bleaker with respect to those responsible for terrorist acts . No international tribunal has been established to try terrorists who have killed innocent men, women, and children. Although 17. See U.N. SCOR, Res. 827, May 25, 1993, reprinted in 32 I.L.M. 1203. 18. See William Drozdiak, Top Serbs Charged With War Crimes, WASH. POST, July 26, 1995, at Al (reporting the tribunals indictment of Bosnian-Serb leader Radovan Karadzic and his top military commander, Ratlco Mladic). 19. See Robert Marquand, Bosnia War Crimes Judge Talks of Quitting, CHRISTIAN SCIENCE MONITOR, Oct. 22, 1996, at 1 (noting that only seven of 74 people indicted by the tribunal for war crimes are in custody, none of whom are leaders). 20. See Philip Shenon, Mixed Signals on Bosnia War Crime Issue, N.Y. TIMES, June 4, 1996, at Al (discussing statements by Pentagon officials that NATO commanders are reluctant to step up efforts to capture accused war criminals because arrests might endanger peacekeeping forces).