margaret e.

mcguinness

Peace v. Justice: The Universal Declaration of Human Rights and the Modern Origins of the Debate*
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.1 The diplomatic process that led to the adoption of the Universal Declaration of Human Rights (or the Declaration) began in 1946 in New York City, where the nuclear UN Commission on Human Rights met for the rst time and set out the guidelines for drafting the text adopted by General Assembly resolution in 1948.2 Together with two other diplomatic eventsthe San Francisco Conference of 1945, which adopted the UN Charter (or the Charter), and the London Conference that same year, at which the Allies agreed on the legal contours of the postwar Nuremberg prosecutionsthe Declaration laid out the normative underpinnings of an international system governed by the rule of law and respect for human rights. This founding trifecta would be relied on by future generations of lawyers and diplomats to create institutions aimed to prevent and limit war, hold accountable the political and military leaders responsible for violating core principles of internationally recognized law, and support the development and enforcement of international human rights norms. While the institutional structures of these distinct projectscollective security, human rights, and international criminal lawdiverged almost immediately after they were created, each has inuenced and affected the developments of law and diplomatic practice in the other. And the interconnectivity, occasional incommensurability, and fragmentation among the three projects present an ongoing challenge to addressing challenges to international peace. This article examines one part of the history of that interconnectivity: the ways in which the drafters

*Special thanks go to Bianca Nicoletti and Thomas Combs for assistance with research and sources. 1. The Universal Declaration of Human Rights, preamble, second recital, adopted as GA Res. 217 (III) (1948). 2. The Tokyo Trials for war crimes committed by Japan played an important part in the postwar development of international criminal liability but has had little impact on the narrative surrounding the larger international human rights and international criminal law projects. See, for example, Allison Marston Danner, Beyond the Geneva Conventions: Lessons from the Tokyo Tribunal in Prosecuting War and Terrorism, 46 Virginia Journal of International Law 83: 8896 (2005) (describing the ambivalent legacy of the Tokyo Tribunal based on the unilateral process creating it, the prosecutorial strategy deployed, the deciency of procedural protections for the defendants, and the split judicial opinions that were ultimately issued). Diplomatic History, Vol. 35, No. 5 (November 2011). 2011 The Society for Historians of American Foreign Relations (SHAFR). Published by Wiley Periodicals, Inc., 350 Main Street, Malden, MA 02148, USA and 9600 Garsington Road, Oxford OX4 2DQ, UK.

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749..768

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of the Declaration considered (or failed to consider) the role of rights protection as either a necessary precursor or a hindrance to an enduring global peace. The drafting of the UN Charter was deeply intertwined with the conclusion of a war against an enemy that used mass atrocity as a central instrument of both its external military aggression and its internal governing policies and practices. Against that backdrop, the Charter sets forth the ways in which the post-WWII collective security systembuilding as it did on the failed League of Nations formally sought to reconcile and link two central goals: to maintain peace and security around the world and at the same time foster respect for human rights within domestic legal systems. These twin goals are described in the preamble of the Charter, which declares that the United Nations are determined to save succeeding generations from the scourge of war as well as to reafrm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.3 The Charter drafters were motivated in part by what they viewed as the nexus between the aggression of the Axis powers and the rejection by those regimes of the universality of rights. Ending war and stabilizing peace lie at the center of the UN legal framework; maintaining peace and security is the work of the Security Council, the only UN organ with the power to bind member states to its resolutions.4 The human rights institutions of the United Nations, in particular the Human Rights Commission (or the Commission), which sponsored the drafting of the Declaration, were created under the umbrella of the General Assembly, a plenary body of member states that permits a universal approach to setting norms but possesses no binding legal authority or enforcement mechanism to compel member states to action.5 This asymmetry between the hard law governing the use of force and the less robust mechanisms of human rights protections remains an enduring characteristic of the international system. On one hand, in the language of the preamble and in the creation of the Economic and Social Council to address issues of human rights, the new UN Charter explicitly recognized that protection of the dignity and rights of the individual stood as pillar of the new international order.6 But on the other, the United Nations sought to enforce international peace and security through a

3. 4. 5. 6.

UN Charter, preamble. UN Charter chaps. V, VI and VII. UN Charter chap. IV. UN Charter chapter IX, article 55 begins, With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: 1. higher standards of living, full employment, and conditions of economic and social progress and development; 2. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and 3. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

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legal order constructed by, of, and for the sovereign nation state. This internal contradiction is embodied by the nonintervention provisions of article 2(7) of the Charter, which provides that [n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures.7 Within the nascent international criminal law project, the Nuremberg process sought to erase certain privileges of sovereignty by removing particular crimeswar crimes and crimes against humanityfrom the exclusive jurisdiction of states. One goal was to deter future aggression through individual liability and the removal of individual immunities to prosecution. But Nuremberg focused centrally on the crime of Nazi aggression and crimes committed in furtherance of the war, rather than on the on the human rights abuses and atrocities committed by the Nazi regime as part of its peacetime domestic governing policies.8 It was the war, rather than the atrocities themselves, that triggered the imposition of international jurisdiction.9 Unlike the conicts of today, the end to the total war was accomplished through unconditional surrenders in Europe and the Pacic. Yet, despite not being a negotiated peace, several questions that bedevil peace processes today were present at the end of the war and surfaced throughout the discussions of the text of the Declaration. The core of this debate, pitting the idea of universalism of rights applicable across a range of social and cultural contexts against a pragmatic/realist account of resolving armed conicts was reected, at times more implicitly than explicitly, in the drafting process of the Declaration.10 The drafting of the Declaration occurred over three phases: The Drafting Committees work in 194711 and early 1948,12 discussions of committees draft by the full Human Rights Commission in 194713 and 1948,14 and the later debates over the draft at the meetings of Economic and Social Council and the General Assembly in 1948, including the nal adoption of the Declaration as a General Assembly resolution in December of 1948.
7. UN Charter art. 2(7). 8. See Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ, 2000), 17779, 193. 9. This neglect of the crimes of the Holocaust at Nuremberg in turn set in motion the separate process leading to the drafting and passage of the Genocide Convention. See John Q. Barrett, Raphael Lemkin and Genocide at Nuremberg, 19451946; William A. Schabas, Genocide in International Law and International Relations Prior to 1948, in The Genocide Convention Sixty Years After its Adoption, ed. Christoph Safferling and Eckart Conze (The Hague, 2010). 10. The ofcial documents of these meetings are now, helpfully, available online at the Dag Hammarskjold Library site dedicated to the history of the Universal Declaration, http:// www.un.org/Depts/dhl/udhr/. 11. Drafting Committee International Bill of Human Rights, 1st sess. ( June 1947). 12. Drafting Committee International Bill of Human Rights, 2nd sess. May (1948). 13. Commission on Human Rights, 1st sess. ( January-February1947); Commission on Human Rights, 2nd sess. (December 1947). 14. Commission on Human Rights, 3rd sess. (May-June 1948).

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The delegates at these meetings represented a diversity of legal traditions, forms of government, and cultural norms, and held differing views of the connection of the nascent human rights project to global peace and security.15 Contrary to several of the myths that have grown up about the drafting of the Declaration, the process was neither dictated nor especially dominated by the United States. Small and medium statesWestern and non-Westernplayed an important and inuential role.16 What the delegates had in common was that they had all experienced, in one way or another, the Second World War. But the lessons they would draw from the war as they set out to design the human rights system were often at odds. The delicate balance between peace and justice laid out in the Charter had quickly been tested by the Nuremberg trials and by the time of the rst meeting of the Human Rights Commission had been exposed as a relatively complex bargain. By the end of the drafting process, the debate was overshadowed and increasingly inuenced by the emerging ideological struggles of the Cold War. A future of international politics carried out in accordance with respect for a universal conception of rights was an abstract ideal, even for the most committed delegates. Several issues that have proved problematic for peacemakers in the interim years were raised, discussed, and, in many cases, left unresolved during the drafting process. First, the issue of retroactive application of law to a former regime or particular governmental leaders proved controversial, despite general support among the delegates of the Nuremberg processs application of victors justice. Second, the question whether human rights observance is a necessary precondition to enduring peace, raised philosophical debates, frequently splitting along ideological lines, about the purposes of a human rights framework. And third, a signicant threshold institutional question hovered above the proceedings: how would any new human rights institutions, in particular the Human Rights Commission, inuence or complement the central peace and security functions of the Security Council? The rst meeting of the nine-member nuclear Human Rights Commission in May 1946 fully realized the importance of achieving and promoting the recognition- and observance of human rights and fundamental freedoms for all, in the hope of drawing from the last world war which demanded the sacrice of so many lives, the lessons which will aid us to achieve the highest aspirations of

15. Scholars who have criticized the Declaration as representing exclusively Western values have pointed to the Western education and professional backgrounds of some nonWestern delegates such as Charles Malik and P. C. Change as evidence that these inuential drafters were more Western in their outlook. May Ann Glendon has persuasively responded to this critique with examples of the way in which these non-Western delegates brought insights from their own cultures to the table. May Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York, 2001), 22426. 16. See Susan Eileen Walz, Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights, Human Rights Quarterly 23, no. 1 (February 2001): 4472.

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mankind.17 Moreover, at the initial session it was recommended that, while the Commission began is work on crafting an international bill of rights, the general principle should be accepted that provisions for basic human rights be included in international treaties, particularly peace treaties, that similar provisions be accepted by all States, Members of the United Nations, and by States seeking admission to the United Nations.18 The Commission also recommended a role for itself in assisting the Security Council by pointing to cases where violation of human rights may constitute a threat to the peace.19 From the beginning, the Commission saw its task of articulating and promulgating a charter of human rights as complementary to the United Nations broader mission to prevent war and also viewed forward-looking commitments to human rights as a necessary part of peace agreements. In order to provide a starting point for discussion, the Commission tasked the Secretariat to compile information on various bills or rights as they existed around the globe, and to draw on expertise about human rights from governments and nongovernmental experts and organizations. John Humphrey, a Canadian international law expert, was appointed head of the new UN Secretariat Division of Human Rights that coordinated the information gathering, and it was Humphrey (not Rene Cassin, as Cassin later claimed) who provided the initial draft of the Declaration.20 Humphreys ofce was also assigned by the Commission to include information on the Nuremberg and Tokyo trials which might be important in the eld of human rights.21 That report, titled Information Concerning Human Rights Arising from Trials of War Criminals was submitted to the Commission in December 1947, provided details of what was known about the full scope of atrocities committed by the Axis powers.22 The rst full meeting of the eighteen-member UN Human Rights Commission in January 1947, at which Eleanor Roosevelt was elected chair, did not go entirely smoothly. Delegates argued about political philosophy and the nature of rights and foreshadowed the central conict for the drafting process to come: how their work should be implemented, in particular whether the work of the Commission should result in an enforceable treaty that bound the member states.23 The Drafting Committee, comprised of Roosevelt (United States), P. C. Chang (China), William Hodgson (Australia), Charles Malik (Lebanon),

17. UN Document E/38/Rev. l, 3. 18. Ibid., 7 (italics added). 19. Ibid., 5. 20. See Glendon, A World Made New, 4748, 65. 21. UN Document E/38/Rev. 1, 6. 22. UN Document E/CN.4/W.20. The purpose of the report was to serve the specic purpose of contribution to the international bill of rights or international declaration or convention on civil liberties. Ibid., vi. The report was discussed at the Second Session of the Human Rights Commission. UN Document E/CN.4 SR.43, 8. See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia, 1999), 40 n.9, 4043. 23. Glendon, A World Made New, 3546.

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Hernn Santa Cruz (Chile), Ren Cassin (France), Geoffrey Wilson (for Lord Dukeston) (United Kingdom), and Vladimir Koretsky (USSR), held its rst meeting in June 1947. In the intervening months since the Commissions initial meeting and the Drafting Committee gathering, world events had changed dramatically. The United States had sent aid to Turkey and Greece without consultation to the new Security Council, and U.S. assistance to Western Europe through the Marshall Plan had begun. With the Cold War setting in, the use of the Security Council as a collective security mechanism was beginning to look like a dead letter. These outside realities had an effect on the delegates and on the product of their deliberations, which shifted over the course of the negotiations from a project aimed at drafting a binding international agreement on human rights to one of a statement of principles adopted as a nonbinding General Assembly resolution. At the initial meetings, the question of accountability for past war crimes or human rights abuses was not explicitly discussed, since by 1945, any earlier debates over accountability within and among the Allied governments had been resolved in favor of trials.24 As Gary Bass has chronicled, the U.S. decision to prosecute, rather than seek brutal vengeance through summary executions, deportations, and demilitarization and de-industrialization of the German homeland, was a victory for the American tradition of rights and a particularly American brand of legalism: punishment only for those who could be proved to be guilty through a fair trial with a panoply of procedural protections.25 From its beginnings, the prosecutorial project was connected to the idea of a just postwar order, one in which the people of Germany and the other Axis powers would learn to embrace a culture of civil and political rights under the rule of law. Further, earlier proposals to return Germany to a pastoral preindustrial state were defeated on the grounds that economic punishment was contrary to a just postwar order, and a violation of Roosevelts Four Freedomsin particular the freedom from want and freedom from fearthe content of which would come to play a central role in constructing the framework of civil, political, economic, and social rights of the Declaration.26 Secretary of State Henry L. Stimson also viewed collective punishment as inimical to an enduring peace.27
24. Gary Bass, Stay the Hand of Vengeance, 15051, 16673 discussing Roosevelts initial approval at the Quebec Conference of September 1944 of summary executions of Nazi war criminals, an idea put forward by Treasury Secretary Henry Morgenthau, Jr.). Bass recounts some of Morgenthaus more extreme suggestions, including mass deportations of German citizens and complete de-industrialization of Germany. Ibid., 15260. 25. Ibid., 16466 (discussing Stimsons explicit reliance on the criminal procedural protections outlines in the American Bill of Rights as a basis for constructing war crimes trials). 26. The plan was also defeated by public opinion. See ibid., 16869. Bass quotes from Stimson as appealing to Roosevelt to reject Morgenthaus plan on the grounds that the United States maintained a belief that all men, in the long run, have the right to be free human beings and to live in the pursuit of happiness and victors and vanquished alike are entitled to freedom from economic want. Ibid., 168. 27. Stimson commented that Morgenthaus proposed pastoralization of Germany will tend through bitterness and suffering to breed another war. Ibid., 167.

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The Holocaust did not, however, play a leading role at the Nuremberg trials.28 To the extent that crimes of the Holocaust were addressed at Nuremberg, they were lumped with other war crimes and atrocities, which U.S. Chief Prosecutor Robert Jackson saw as peripheral to the big event: showing that the Nazis designed an illegal attack on the international peace. The other atrocities, Jackson claimed, were all preparatory to it or done in execution of it.29 International criminal prosecution was connected not to the commission of atrocities but to war. As Jackson reported, The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was part and a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities.30 Similarly, for the British, the Holocaust and other war crimes were very important but secondary reason for punishment of the Germans for their conduct of the war.31 The USSR had taken a different tack pre-Nuremberg, moving swiftly to try Germans for war crimes in the areas the Soviets reoccupied in late 1943 and early 1944. At the London Conference, the Soviets agreed to U.S. plans for Nuremberg as reected in the Charter of the International Military Tribunal (IMT), but later reveled in using the trials for propaganda and worked to undermine their legitimacy by threatening to turn them into show trials.32 Indeed, the failure of the Nuremberg trials to address the peacetime crimes of the Holocaust prompted Raphael Lemkin to pursue a separate path through the new General Assembly to criminalize genocidethe term Lemkin had coined to describe a states elimination, or attempt to eliminate, and entire people.33 Lemkins efforts at the General Assembly were more successful, leading to the 1946 resolution declaring genocide to be an international crime and later to the adoption in December 1948 of the Genocide Conventionjust two days before the adoption of the Universal Declaration of Human Rights.
28. Indeed, it has been argued that the expressed anti-Semitism of Stimson and others led them to downplay Morgenthaus passion on the issue of retribution against the Nazis as a result of his being Jewish. See ibid., 17380. 29. Ibid., 177. 30. Ibid. (citing Jackson Report 1945). 31. Ibid., 193 (quoting Donald Somervell). 32. Ibid., 195203. 33. See William Schabas, Genocide in International Law and International Relations Prior to 1948, in The Genocide Convention Sixty Years after its Adoption, ed. C. Safferling and E. Conze (The Hague 2010). As John Barrett has documented, Lemkin was present at Nuremberg during 1945 and 1946, and his work dening genocide as a crime separate from other offenses to the laws of war was well known to Jackson and his team. But Lemkin only partially succeeded in his efforts to have genocide included in the charges at the IMT; the U.S. prosecution team inserted genocide as in Count Three of the IMT Indictment, charging war crimes in a section describing Murder and Ill-treatment of Civilian Populations of or in Occupied Territory and on the High Seas. Apart from this minor victory for the application of his new term, Nuremberg was largely a disappointment to Lemkin; the IMT judgment did not include atrocities committed prior to the commencement of the war and did not use the term genocide. Barrett, Raphael Lemkin and Genocide at Nuremberg, 19451946, 4546.

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The failure to include in the Nuremberg indictments crimes committed within sovereign territory that were unconnected to the war did not, however, reect any ambiguity or reluctance to punish the Axis powers more generally for the war. The idea of waiving prosecution or negotiating away any backwardlooking process of accountability in exchange for peace was never an option. Rather, the choice was between an accounting for Axis war crimes via a judicial process or through summary justice on the front lines (i.e., shootings carried out by the military). Nonetheless, the discussion of how extensive de-nazication trials in occupied Germany should be, and how deep into the ranks of the Nazi leadership, SS, and SA they should reach, reected concerns about the balance between accountability for the past and the need to rebuild and establish new norms to protect the peace. A similar concern about balancing past accountability with the need for enduring peacetime institutions animates contemporary discussions of post-war justice.34 The evolution of the Declarations preamble text reected different perspectives among the drafters of the causes of the war and the preconditions for a lasting peace. Humphreys draft contained in its preamble the following principles: 1. That there can be no peace unless human rights and freedoms are respected; and 4. That there can be no human freedom or dignity unless war and the threat of war are abolished.35 During the rst meeting of the Drafting Committee, Cassin rewrote and reorganized the Humphrey draft, revising the preamble to connect peace with the just treatment of individuals and more explicitly connecting the Declaration to the causes of last war: 1. Ignorance and contempt of human rights have been among the principal causes of the sufferings of humanity and particularly of the massacres which have polluted the earth in two world wars; 2. There can be no peace unless human rights and freedoms are respected and, conversely, human freedom and dignity cannot be respected as longs as war and the threat of war are not abolished; 3. It was proclaimed as the supreme aim of the recent conict that human beings should enjoy freedom of speech and worship and be free from fear and want; 4. In the Charter of 26 June 1945 (The UN Charter) we reafrmed our faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.36 This debate over the relationship between human rights and peace emerged during the rst meetings of the Human Rights Commission and gathered some

34. For a comprehensive overview of the issue raised by accountability or past atrocities, see Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, 1998). 35. UN Document E/CN.4/AC.1/3, 2. 36. UN Document E/CN.4/21 Annex D (Draft Declaration of Human Rights: preamble)

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steam during the December 1948 debates over the Declaration at the Third Committee and General Assembly. One sharp difference arose between the Soviet and French delegations. Alexei Pavlov of the Russian delegation suggested that, because the drafters had not come to a consensus of what a right was, in an abstract sense, the human rights of the Universal Declaration should be viewed instrumentally. Johannes Morsink suggests that Pavlov and the Soviet delegation took the view that the rights enumerated in the Declaration have no legitimacy in their own right, but derive all their authority and justication from the goal and the cause of world peace which they are meant to serve.37 Rene Cassin strongly disagreed with this approach, citing the Nazi regimes atrocities as proof that a violation of human rights in one country can be used as a precursor to attacks on the independence of other countries. The Soviets viewed human rights in service of world peace; Cassin saw a world order based on respect for human rights. Cassin clashed with the Soviets from the beginning, pushing back on the general Soviet objection to the Declaration as an intrusion into state sovereignty through several discussions with Vladimir Koretsky, the legal adviser to the Soviet delegation.38 Cassin relied on the UN Charter itself as the normative foundation for the notion that rights transcend national claims of sovereignty. In that regard, he sought to balance the emerging conict between delegates who sought to emphasize the central role of the individual and those that placed communitarian or collectivist goals at the heart of rights. And in drafting a preamble that connected the Declaration with the prevention of future wars, Cassin staked out the claim that preserving and protecting human rights was a means to achieving peace, which in turn reected back to the goals of the Charter. Beneath all this lay Cassins own strong belief that the deprivation of rights in Nazi Germany was a central cause of the war. Not all participants in the drafting process or the delegates who voted on the Declaration at the General Assembly shared the view that particular domestic violations of rightstaking place wholly outside of warcould either be said to cause aggression or to require international scrutiny of state behavior. For the Soviets, the idea of rights deprivations as a causus belli strengthened the view that international law could be used as a means to examine a full range on internal state behavior, including political rights, which the Soviets believed to be fully within the discretion of the state. Moreover, Pavlov and others contested Cassins account of the role of human rights deprivations as a cause of the World War II. Cassins approach carried the day, and the preamble as nally adopted retains Cassins tone and specic reference to the war: WHEREAS recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, and
37. Morsink, Drafting and Intent, 318. 38. Glendon, A World Made New, 5970, discusses Cassins role.

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WHEREAS disregard and contempt for human rights resulted, before and during the Second World War, in barbarous acts which outraged the conscience of mankind and made it apparent that the fundamental freedoms were one of the supreme issues of the conict. . . . 39 The preamble does not declare that the deprivation of rights caused the war, but it does make note that the disregard and contempt for rights occurred both before and during the war. In declaring fundamental freedoms one of the supreme issues of the war, it opens the door to questions of causation: Is the protection of human rights a necessary perquisite for peace? Are rightsregarding states less likely to go to war with one another? The contemporary debates over these questions reect ongoing philosophical divisions over the connection between rights and war as well as some healthy contestation of empirical claims about the causes of war and peace. Scholars and lawyers who claim that human rights protection should not be subordinated to the quest for peace look for support from one or several of the following accounts of rights and peacemaking: human rights-regarding states, like democracies, are less likely to go to war with one another; where war is accompanied by massive human rights atrocities, including genocide, accountability for the abuses is necessary to rebuilding a civil society that promotes peace; accountability for crimes serves a pedagogical purpose and deters future acts that might disturb the peace; and, justice, as reected in backward-looking mechanisms of accountability and forward-looking instruments to protect human rights, is a central normative goal of the collective security order.40 Under this last account, only peace with accountability can be considered a just or legitimate peace. Within each of these accounts lie deeper debates over the form and content of accountabilitywhether it is based on a Nuremberg model of prosecution or some other more locally devised modes of accounting, retribution and/or reconciliation.41 In response to these claims of the necessity of justice, others have argued that the maintenance of peace is the central normative goal of the international order.42 In an era of protracted and complex armed conicts, many of which are fought within state borders between state and nonstate actors, and are accompanied by atrocities committed by state and nonstate actors alike, the argument
39. Universal Declaration of Human Rights. 40. For examples of these arguments favoring postatrocity accountability for rights violations, see: Diane F. Orentlicher, Swapping Amnesty for Peace and the Duty to Prosecute Human Rights Crimes, ILSA Journal of International and Comparative Law 3 (19961997): 713; Leila Sadat Exile, Amnesty and International Law, Notre Dame Law Review 81, no. 3 (2005): 955. 41. See Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge 2007) (explaining the multiple dimensions of international criminal law and its ability to achieve justice). 42. Louis Henkin has most famously called enforcement of the peace and security functions of the Charter as the raison detre of the United Nations. Louis Henkin, How Nations Behave, 2nd ed. (New York, 1979), 165.

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is made that rigid considerations of justice must be set aside to stop the killing and abuses. And because modern wars are unlikely to end with unconditional surrender to a state actor, the argument is made that accountability and human rights protections can and should be bargained away in the pursuit of peace.43 Under this account, conditioning peace on accountabilitywhether domestic or internationalis not only unnecessary but may create perverse incentives that prolong war and suffering.44 Requirements that postwar regimes adopt particular human rights norms should, under this view, be contingent on the ability to broker peace. The substance of the particular rights that were ultimately included in the Declaration bears the marks of the war experience and of these philosophical divides. In a speech given several months after the passage of the Declaration, John Humphrey made explicit the connection between the experience of the second world war and the events which gave rise to it and the promotion of negative rights (the right to have government infringements on liberty kept in check) and positive rights (the right to collective provisions of social and economic rights) enumerated in the text.45 He also asserted that the persistent violations of human rights and fundamental freedoms in one part of the world jeopardize the rights of people in other countries and will inevitably result in a situation that will eventually threaten the peace of nations.46 The protection of human rights, in Humphreys view, would help secure a global peace. Johannes Morsink has documented the ways in which the nal draft of the Declaration directly reects the immediate experience of the war. More explicitly than the Nuremberg process itself, the Declaration took into account both the prewar deprivations of rights by the Nazi regime and the Holocaust itself.47 Morsink reaches the bold conclusion that the experience of the Holocaust gave the delegates the condence and certainty to believe in the truths they enshrined in the Declaration, namely that all human beings are born free and equal in dignity and rights. 48 He further concludes that the war experience, rather than philosophical argument, provided the epistemic foundation for the particular rights discussed and adopted.49 Morsink, along with others, views the
43. For historical examples of the trade-offs inherent in different conict resolution approaches, see I. William Zartman and Victor Kremenyuk, eds., Negotiating Forward- and Backward-Looking Outcomes (Lanham, MD, 2005). 44. See, for example, Julian Ku and Jide Nzibile, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities? Washington University Law Review 84 (2006): 777. 45. John P. Humphrey, The Universal Declaration of Human Rights, International Journal 4, no. 4 (Autumn 1949): 352. 46. ibid. 47. See Johannes Morsink, World War Two and the Universal Declaration, Human Rights Quarterly 14 (1993): 357505; see also Morsink, Drafting and Intent, 3691. 48. Morsink, World War Two and the Universal Declaration, 358 (quoting Article 1 of the Declaration). 49. Ibid. See also Morsink, Drafting and Intent, 3691.

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delineation of the rights in the Declaration as a direct repudiation of the fascist model of the state and of individual autonomy within the state. And while this conclusion is generally inferred from the experience of the drafters prior to their discussions from the text of the Declaration, rather than on explicit references to Nazi practices or the Holocaust in discussions of the draft, delegates did occasionally discuss the proposed rights as a repudiation of the Nazi period.50 For example, Cassin looked at the declaration in Article 1 that all human beings are born free and equal in dignity and rights and endowed with reason and conscience and should act towards one another in a spirit of brotherhood as alluding to liberty, equality and fraternity because during the war these great fundamental principles of mankind had been forgotten.51 The assertion of inequality of man was the perquisite of Hitlers attacks on liberty. [M]illions of men had lost their lives, precisely because [the principles of dignity and equality] had been ruthlessly outed.52 The nondiscrimination principles in Article 2, serve as a kind of umbrella provision requiring that the rights enshrined in the Declaration be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and without regard to the status of the place where the individual resides.53 Article 7 provides for equal protection and nondiscrimination before the law.54 These nondiscrimination principles have been adopted in every subsequent major human rights instrument.55 In contrast with the Soviet Unions more generalized concern about the intrusions into the workings of the state, the Soviet delegation strongly supported the nondiscrimination provisions, which it saw as empowering states to prevent private acts of discrimination. Alexei Pavlov happily used the discussion of discrimination as an opportunity to criticize civil rights conditions in the United States, a theme that would repeat itself in international meetings throughout the early years of the Cold War. Discussion leading to the Article 3 guarantee of the right to life, liberty and security of person included comments by the Cuban delegate at the Third Committee to add personal integrity to the article as a response to the surgical experiments done by the Nazis. The Uruguayan delegation proposed adding a right to ones honor, which they believed would be particularly welcomed by Jews and by all who had suffered indignities at the hands of the Nazis.56 The
50. Morsink, for example, bases many of his inferences about the connection between the text and the Holocaust on the availability of the war crimes report prepared for the Commission by the UN Ofce of Human Rights. Morsink, Drafting and Intent, 40. 51. UN Document AC.1/SR.8, 2 52. Morsink, Drafting and Intent, 99. 53. Declaration of Human Rights art. 2. 54. Declaration of Human Rights art. 7. 55. See, for example, the nondiscrimination principles of the ICCPR and ICESCR. 56. Morsink, Drafting and Intent, 40. (citing the Third Committee, 173)(Protection against attacks on honor was ultimately included in Article 12.).

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right to life, in particular, reected some concern about the many ways in which life was cheap to the Nazi regime.57 The discussion of the cheapness of life in Nazi Germany raised the opportunity for delegates to focus on maltreatment of individuals in other states. The Soviet delegation in the Third Committee criticized British colonial policies and referred to the lynching of African Americans. The UK delegate responded in kind with a statement about Stalins concentration camps. In his words, the discovery of concentration camps in Nazi Germany had proved that it was possible for a totalitarian State to conceal it activities from its own population and even from its ofcials and that once a State resorted to police methods it could no longer stop.58 Article 4 forbids slavery and servitude in all their forms. Cassin included the latter phrase because there were attenuated forms of slavery carried out by Germany.59 Though perhaps few of the delegates from the east needed a reminder of it, the War Crimes Report delivered to the Commission had included a summary of Nazi enslavement and forced labor practices. Similarly, the provisions of Article 5 prohibiting torture [and] cruel, inhuman or degrading treatment or punishment were inuenced by the medical experiments under taken by the Nazi regime on living human beings. Articles 6 through 12 provide for legal rights, which include the right to legal personality (art. 6), equality before the law (art. 7), right to effective remedy under law (art. 8), freedom from arbitrary arrest and detention (art. 9), an independent judiciary (art. 10), a presumption of innocence (art. 11), and a right to privacy (art. 12). These articles were heavily inuenced by domestic bills of rights that had been reviewed by the Drafting Committee. The reassertion of each of these fundamental judicial rights was a direct response to the breakdown of the independent judiciary and any equality of law or protection from arbitrary treatment under the Third Reich. Disagreements on these provisions generally revolved around differences between legal systems and the need for consensus language to express particular ideas. Article 11, however, provided a particular problem for the delegates. As originally drafted by Humphrey (under a different article number) it provided as follows: No one shall be convicted of a crime except by judgment of a court of law, in conformity with the law, and after a fair trial at which he has had an opportunity for a full public hearing. Nor shall anyone be convicted of a crime unless he has violated some law in effect at the time of the act charged as an

57. As Morsink notes, within the Reich itself, the death penalty became more frequently used over the war years, rising to over 5,191 death sentences in 1944 for crimes such as undermining morale, spreading malicious propaganda, or for merely proclaiming the war is lost. Morsink, Drafting and Intent, 40 n.10. 58. Ibid., 4041 (quoting Christopher Mayhew, at theThird Committee 160.) 59. UN Document SR.13, 2.

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offense, nor be subjected to a penalty greater than that applicable at the time of the commission of the offense.60 Cassins rewrite separated the article into two paragraphs, editing the rst paragraph to read No one shall be held guilty of any offence until legally convicted, which became in the nal draft Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.61 The latter part of the original Humphrey provision concerning nullen crime sine lege (no crime without law) posed potential conicts with jurisprudence of the Nuremberg and Tokyo tribunals. Morsink notes that some delegations thought that at least some of the Nuremberg charges were not rmly grounded in pre-existent international law, which in their eyes made the judgments questionable from a strictly legal point of view.62 The working draft at the time the Second Session of the Commission met read, No one can be convicted of a crime unless he has violated some law in effect at the time of the act charged as an offence nor be subjected to a penalty greater than that applicable at the time of the commission of the offences.63 The Belgian and Philippine delegations raised the concern that this provision conicted with the Nuremberg judgments and proposed an amendment that read Nothing in this Article shall prejudice the trial and punishment of any person for the commission of any act which, at the time it was committed, was criminal according to the general principles of law recognized by civilized nations.64 The Soviet delegate also expressed concern about a potential conict, requesting that the text be amended to preclude the defense of nullen crime sine lege (i.e., the defense raised by some of the Nuremberg defendants that their acts were legal at the time they were committed). The Chinese representative at the meeting, Dr. C. H. Wu, stated it more starkly, noting that The Commission was on the horns of a dilemma. On the one hand, there was the principle that no one should be judged guilty of an act which was not a crime at the time of its commission. On the other hand, he could understand the view that the Nuremberg War Crimes Trial should not be declared illegal.65 He proposed limiting the retroactivity exception to grave crimes against humanity, an amendment that was defeated on the grounds that it was seen as too restrictive and only reected one category of crimes charged at Nuremberg. The Belgian/Philippine language was adopted.

60. UN Document AC.1/3 (italics added). 61. Morsink, Drafting and Intent, 5253. 62. Ibid., 52. 63. Ibid., 5354 (quoting UN Document E/CN.4/21, 75). A nal sentence not included here read: No one, even if convicted for a crime, can be subjected to torture. It was dropped during discussion in the Third Committee and didnt affect the discussion of the retroactivity provisions. E/CN.4/21, 75. 64. UN Document E/CN.4/SR.36, 12, 58. 65. Morsink, Drafting and Intent, 5455 (quoting UN Document E/CN.4/SR.37, 14).

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The debate over nonretroactivity was an important one, and carried over to the Third Session of the Commission. The representative of the World Jewish Congress fought back attempts to omit the so-called Nuremberg clause arguing that its omission would be contrary to the Hague Convention of 1907 as well as to the principles established by the IMT, which protected the law of humanity against violation by national laws. Removing that clause would constitute a step back in international law.66 After more debate, a subcommittee of the United Kingdom, India, France, China, and Yugoslavia was given the task of deciding the text of the article. The Nuremberg clause was dropped altogether, replaced by: No one shall be held guilty of any offences on account of any act or omission which did not constitute an offence, under national or international law, at the time when it was committed,67 language that is very close to the nal text of Article 11. At the Third Committee, some delegates (e.g., Cuba) expressed concern that the language appeared to validate and legitimize, as a matter of international law, the Nuremberg judgments. Others, like Belgium and Greece, took the opposite view: the text did not go far enough in explicitly endorsing the judgments and might still be used by some as a tool for criticizing Nuremberg.68 The majority of the delegates took the middle ground, supporting what became the nal text: No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.69 The scope of what constitutes a penal offence under international law has expanded considerably since 1948, as a result of the growth of international criminal law in the postCold War period and the establishment of the International Criminal Court in 2002. Attention to the problem of retroactivity and nullen crime sine lege in Article 11 helped pave the way for legitimizing those future efforts, which do not carry the taint of victors justice borne by the Nuremberg and Tokyo efforts. In discussions of other political and civil rights provisions, the hardening conict between the United States and the Soviet Union was on display. Article 21, for example, provides for a right to participate in government. This provision also drew from the survey of world constitutions prepared by Humphrey and his staff. It does not, however, include a specic right to form political parties, after objection by the Soviet Delegation during the Third Committee to a proposal by the Belgian delegation to ensure multiparty elections.70 Further, though Article 21 appears to enumerate a right to participatory government, the word democracy does not appear in the text.

66. UN Document E/CN.4/SR.54, 13. 67. UN Document E/CN.4/SR.56, 4. 68. See Morsink, Drafting and Intent, 5758 for discussion of the positions of Cuba, Mexico, Venezuela, Belgium, and Greece on this issue. 69. Universal Declaration of Human Rights art. 11 (2). 70. See Morsink, Drafting and Intent, 5961.

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Morsink notes that the Declaration omits specic mention of the ideological losers of the war, fascism and Nazism, but also omits what he calls the winning ideology, democracy.71 Taken together, however, the political and civil rights provisions of the Declaration provide a framework for the right to representative forms of government, governed by the rule of law, in which people enjoy rights to be free from oppression, interference, and discrimination, and in which they may exercise rights of free expression, conscience, and belief. In all these dimensions of civil and political rights, the Declaration is a direct repudiation of the fascist model of state power, even if the particular label of democracy is not attached to those provisions. The fact that the language of the Declaration has been directly or indirectly incorporated into thirty-ve democratic national constitutions since 1948 indicates the broad compatibility of the Declaration with democratic norms. The three transnational provisions of the Declaration, those that refer to how individuals are treated between and among nation states and to the recognition of persons internationally, are more directly tied to international governance and the maintenance of peace.72 The inclusion of each of these provisions can be traced directly to the war: the failure of states to accept refugees from Nazi Germany, the denial of exit visas and other restrictions on the movement of peoples, and the stripping of citizenship and the creation of stateless persons. Article 13 addresses internal and international movement: (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.73 Paragraph (2) addresses itself to international movement and the right to exit, and, importantly, the right to return to ones home country. This right to exit implied a correlative duty of another state across that international border to accept the individual for entry. The purpose of Article 14 was to delineate the international duty of states to receive particular individuals who sought protection from persecution in their home country. It reads, (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. As with Article 13, the language went through many redrafts, reecting the concern by the delegates of creating a new obligation on states to receive
71. Ibid., 61. 72. Morsink calls them special international (human) rights on the grounds that they are the sorts of rights that require more than one nation to implement. Ibid., 72. 73. Universal Declaration of Human Rights art. 13.

Peace v. Justice : 765

individuals who might not otherwise be accepted for normal immigration into their states. The draft language to be granted asylum was replaced by to enjoy asylum, based on the objection of many states to the notion of an obligation to grant asylum where the contours of the duty to provide asylum were not fully articulated. The Soviet Union and other delegations raised the specter of being required to accept as a refugee an individual who had committed domestic or international crimes. The solution was the inclusion of language excepting the obligation to grant asylum in the case of individuals prosecuted for nonpolitical crimes or who act contrary to the UN purposes. Cassin and others recognized that, in addition to these legal concerns, the potential nancial burden on individual states facing an inux of refugees might require assistance from the United Nations.74 This was not a theoretical problem; by the time of the meeting of the Third Committee in late 1948, the Israel-Palestinian crisis had sent 500,000 refugees into neighboring states. While no language was added requiring UN support or intervention, it became clear that concerns surrounding nancial and material support of individuals displaced by war and the legal issue of repatriation of refugees to their home states would need to be addressed by the United Nations in the future.75 Article 15 provides the right to nationality and the right to change nationality. The right to nationality was a signicant response to Nazi policies and atrocities, in particular the systematic stripping of citizenship of Jews as a means to enable conscation of property and to eliminate the ability of any state from asserting an interest on the individuals behalf. The debate over statelessness, and the burdens associated with stateless persons, prompted a lively discussion about the role of the United Nations. Several amendments were proposed that would impose an obligation on the United Nations to prevent statelessness. The nal language was straightforward: Everyone has a right to a nationality. No one shall arbitrarily denied of his nationality nor to be denied to change his nationality.76 The section of the Declaration dedicated to economic, social, and cultural rightsArticles 22 through 27appears on its face less directly concerned with the causes of war and atrocities. But in her broad history of the Declarations origins, Mary Ann Glendon concludes that Article 26 is one of the few articles of the Declaration directly inuenced by the European Holocaust.77 Although the record makes it difcult to weigh which provisions were more or less directly inuenced by the Holocaust, education was indeed seen by the delegates as essential to the establishment of freedom, justice and peace in the world.78 An observer from the World Jewish Congress at the Commissions
74. Morsink, Drafting and Intent, 77 (citing UN Document SR.37, 8) (second drafting session). 75. Ibid., 7879; Glendon, A World Made New, 153. 76. See Morsink, Drafting and Intent, 8083. 77. Glendon, A World Made New, 189. 78. Ibid.

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December 1947 meeting in Geneva commented that the working draft provided a technical framework but failed to capture the spirit governing education, lack of attention two that in Germany, he claimed, had been the main cause of two catastrophic wars.79 His proposed language was reected in the nal language of Article 26(2), and the nal text reads as follows: Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.80 The latter part of Article 26(2) was added on the motion by Mexico and the United States at the Third Committee meeting in 1948.81 While the formal right to education would be more fully articulated in the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 26(2) laid out a broad normative commitment that was explicitly linked to international peace and security. The Soviets injected politics into the discussions of Article 27the right to participate in culture and enjoy the fruits of scientic achievements. The text as adopted reads as follows: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientic advancement and its benets. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author.82 The Soviet delegation nearly succeeded in its attempt to link a Soviet conception of democracy and the cause of peace to the right to scientic exploration and knowledge. The Soviets proposed to amend the language of Article 27 with the following condition: the development of science must serve the interest of progress and democracy and the cause of international peace and cooperation.83 The word democracy would prove the sticking point. Motivating the amendment was Soviet criticism of the U.S. nuclear program and the American decision to use nuclear weapons against Japan as well as the Soviet rhetorical condemnation of the militarization of science in the United States. Pavlov argued that universities in the United States were transformed into veritable laboratories of research for military purposes and that men of learning found

79. 80. 81. 82. 83.

Ibid. Universal Declaration of Human Rights, art. 26(2). Glendon, A World Made New, 189. Universal Declaration of Human Rights, art. 27. UN Document E/800. Morsink, Drafting and Intent, 6163.

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their personal freedom restricted.84 But other delegations worried that, without an agreement on the term democracy, the phrase would permit states to direct the purposes of research. Similar objections were raised to the Soviet delegations efforts to include language in Article 29 to ensure that the rights in the declaration could be put in service of the democratic state. The debate again centered on the meaning of the term democratic, and also on the role of the state. Delegates supportive of communitarian and more explicitly Communist conceptions of state power were comfortable subordinating the recognition of rights to the needs of the state, which they viewed as having already perfected democracy. On the other side were delegations who viewed rights recognition as normatively superior to the idea of state interests. For them, protection of human rights was a prerequisite of a democratic society, one that could stand separate from the idea of a democratic state.85 Humphreys initial draft had included two provisions that sought to bind the member states to the commitments of the declaration by adopting the principles as domestic law and tying it to their commitments under the UN Charter. His purpose was to internationalize human rights; to convert these broad principles into international obligations.86 As the drafting project shifted away from one aimed at creating a binding treaty, that element of Humphreys draft reemerged in two different forms. First, in Article 29, (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.87 Second, in Article 30, Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.88

84. Ibid., 62 (quoting UN Document A/777, 629). 85. Ibid., 24850. 86. See Ibid., 8486. Humphrey recognized the unlikelihood of a unitary world government under which adherence to human rights could be seen as exclusively the purview of international law. His proposal thus envisioned concurrent jurisdiction between a national constitutions bill of rights and any binding international rights covenant. 87. Universal Declaration of Human Rights art. 29. 88. Universal Declaration of Human Rights art. 30.

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The effect of both these provisions is to make the individual an actor in international law, a development that would have implications for the role of individuals in peace processes. And, perhaps more subtly, the Declaration nudged in the direction of preferencing a particular kind of liberal democratic form of government in its limitation on rights measured against the needs of a democratic society. The negotiated text is not, of course, the whole story of the legacy of the Declaration in the context of peace processes. Over the past sixty years, the Declaration has inuenced the very structure of the international system and the states that are members of that system. In addition to being integrated into national constitutions, it served as the basis for the two central human rights covenantsthe International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights, which both came into force in 1976as well as numerous international regional human rights treaties. Although it is not a binding legal document, it serves as the normative foundation for any discussion of human rights behavior within the United Nations and other international human rights institutions. Judging states against the rights enumerated in the Declaration has become broadly accepted as the means through which the international community evaluates the acceptability of state behavior, including for the purpose of imposing international sanctions and the use of force against states. This gradual accretion and absorption of the norms of the Declaration into the marrow of the international communityin particular the articles concerning civil and political rightshas inuenced the process of peacemaking directly. Since the adoption of the Declaration, scores of formal peace agreements have been concludedforty-nine since the end of the Cold War. Of these postCold War agreements, twenty-three make explicit reference to the Declaration, and almost all the remaining agreements invoke the norms of the Declaration in their discussions of human rights. Christine Bell refers to the law created by these peace processes as lex pacicatoria, or the law of peace.89 This lex pacicatoria increasingly includes formalized mechanisms for postconict human rights institutions and some means of addressing war crimes and mass human rights violations that accompanied the conict. More broadly, the Declarations elevation of the rights of individuals in a way that renders them subjects of international law, and not merely objects or passive beneciaries of it, has meant that the principles can be and have been invoked by anyone with an interest in the outcome of a peace process, including both victims and perpetrators of war-time atrocities.

89. Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacicatoria (Oxford, 2008).

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