Genocide, rape, and crimes against humanity: an affirmation of individual accountability in the former Yugoslavia in the Karadzic actions.

• Author: Isenberg, Beth Ann
• Position: Conceptualizing Violence: Present and Future Developments in International Law

1. INTRODUCTION

   The United States has the opportunity to make a positive, definitive, and necessary statement in the realm of fundamental human rights law. After a history of conflict, there is "[o]nce again . . . genocide occurring in Europe. Affirmative steps must be made this time to stop such crimes and to punish those who have committed, planned, encouraged, condoned, or otherwise participated in such atrocities and crimes against Creation."(1) While many would prefer to classify the presently occurring atrocities as "ethnic shifting," rather than genocide or "ethnic cleansing," the press and a number of world agencies have reported that those who refuse to "shift" and many of those willing to relocate or fulfill the requirements of those in power are regardless "cleansed."(2)

   The harshness and incredible nature of this intense ethnic hatred and the divisions which persist are even more difficult to comprehend in a geographic region of such cultural diversity. In the former Yugoslavia, "no one culture holds a majority, . . . cross cultural marriages abound, and . . . only an individual's last name serves to identify him or her as a member of a particular minority."(3) Throughout the history of this region, however, ethnic tensions have existed. The categorical distinctions are strict, and the roots of the present ethnic divisions can be traced back more than 600 years to the Battle of Kosovo.(4) The "interlocking struggles" of separate peoples tenuously linked together as one nation state show little sign of ceasing, particularly as the ethnic tensions have manifested in the present civil and international conflict.(5)

   The establishment of the Tribunal of Criminal Justice by the United Nations Security Council(6) is reminiscent of the trials at Nuremberg(7) and Tokyo, and recalls the 1947 version of the "new world order" which incorporated a

   "return to fundamental [American] principles" of international law.

   These principles included applying international law to the goal of

   achieving justice defined by morality, recognizing the rights of

   individuals under international law, removing the defense of official

   state action from the application of international law to the conduct of

   individuals, limiting a nation's sovereignty in accordance with the

   demands of international law, and making even private citizens

   responsible for violations of international law.(8)

   After 1947, these principles began to be incorporated into many treaties, publications, and judicial decisions in such a way that they were becoming customary international law.(9)

   Tremendous domestic and international concern exists that the perpetrators of some of the worst humanitarian abuses are brought to justice.(10) The United States is currently faced with the question of whether these principles have graduated to a level of customary international law, particularly when considered in light of the recent decision by the United States Court of Appeals for the Second Circuit in Kadic v. Karadzic,(11) which may provide for a civil cause of action against an individual responsible for the atrocities being committed in the former Yugoslavia. The limited scope of this Comment prevents discussion of the many relevant and pertinent tangential aspects implicated in the Karadzic case. Part II focuses on the foundations for a cause of action against an individual for violations of international law, and Part III discusses the decisions of the district court and the Court of Appeals for the Second Circuit. In conclusion, Part IV of this Comment briefly addresses the implications of the Karadzic decisions for the courts of the United States and the resulting position of the United States in foreign relations.

2. PRIVATE DUTIES FROM PRIVATE RIGHTS

   The citizens of the United States often take for granted the many privileges and fundamental freedoms that comprise the way of life in the United States. It is critical for all citizens to recognize that with private rights come both duties and responsibilities. In fulfillment of these duties, the world has a responsibility to address the horrendous human rights violations currently occurring in Bosnia. The United States has the ability not only to recognize these duties, but also to provide a forum for claims against individuals for such violations. Both international law and the law of the United States provide for civil remedies in the courts of the United States.(12)

   Private duties in international and domestic arenas arise from private rights. "[E]ven before the state, as with the state, there are recognizable rights and duties of humanity--human, civil, and even political rights and duties regardless of the absence or the existence of the modern state and its duties under international law."(13) Private rights and private duties have been incorporated into a growing number of international agreements and instruments,(14) most notably with the creation of the Universal Declaration of Human Rights (Universal Declaration)(15) and the American Declaration of the Rights and Duties of Man (American Declaration).(16) The American Declaration emphasizes the responsibilities of all in the pursuit of liberty: "[t]he fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty.'"(17) Article 30 of the Universal Declaration also emphasizes these responsibilities, ties them to private duties, and adds that "[t]he duties implied are duties not to engage in action aimed at the destruction of the human rights of others."(18)

   In the Bosnian conflict, the destruction of the human rights of others confronts the world. The world has a responsibility to address the human rights violations occurring in Bosnia. Nearly all of the human rights agreements since World War II embody the recognition of private duties and do not proscribe individual responsibility either expressly or through implication.(19) It is imperative that the world take notice and act to address the gross human rights violations occurring in Bosnia. Such notice and action is essential, especially in light of the fact that "there is simply no requirement in general human rights instruments that human rights infractions be perpetrated at the hands of officials, under 'color of law,' . . . or as a matter of 'official policy.'"(20) Furthermore, at least one scholar has argued that a broader application of both criminal and civil sanctions against private individuals is reasonable and necessary on the international stage.(21)

   The courts of the United States provide a potential forum for claims of human rights violations in the Bosnian conflict. The United States has long "recognized that an individual can both sue and be sued in federal courts for conduct in violation of international law."(22) "[N]umerous prosecutions of individuals for violations of international law have occurred throughout our history. Civil or criminal sanctions for private violations of international law were often interchangeable depending on who was seeking enforcement, an individual, the government or both."(23) Furthermore, the United States Supreme Court explicitly affirmed the history of individuals being held accountable for violations of international law in 1942, when it stated that "'[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of . . . individuals.'"(24)

   The duty to address the situation in Bosnia is further accentuated by international and domestic law, which allows foreign tort claims to be adjudicated in the courts of the United States. The judicial history of the United States is in accordance with section 404 and comments (a) and (b) of the Third Restatement of the Foreign Relations Law,(25) such that the violations of international law as a concern of the entire global community confer universal jurisdiction so that civil and criminal sanctions attach to individual violators.(26) While universal jurisdiction applies to the violation of jus cogens,(27) the body of international humanitarian law sets out minimum standards for human rights applicable to all parties(28) involved in an armed conflict. As embodied in the Geneva Conventions(29) and Protocols I(30) and II,(31) these minimum standards have become part of customary international law and are, therefore, applicable to all groups in the present Bosnian conflict.(32) Furthermore, the Geneva Conventions,(33) the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention),(34) and international court decisions,(35) when viewed in conjunction with the recent recognition by the United States of individual rights and subsequent obligations under international law in Filartiga v. Pena-Irala,(36) provide both the standards and means of holding individuals accountable for violations of international law.(37)

   Fairness requires that those who receive the protection of

   international law also be subject to the obligations which pertain

   under such law, especially obligations to refrain from genocide, other

   crimes against humanity and war crimes, as well as the

   responsibilities that flow from the commission of such international

   delicts.(38)

   Thus, the law of the United States and international law, both through agreements(39) and custom, provide the groundwork and standards for the present case facing the judicial system of the United States. The operative questions being not only can the United States hold an individual accountable for the atrocities committed in Bosnia, but also whether the United States should exercise her prestige and power in making a judicial human rights statement to the world in light of the potential foreign relations...