Peace vs Justice

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m a r g a r e t e . m c g u i n n e s s

Peace v. Justice: The Universal Declaration of Human

Rights and the Modern Origins of the Debate*

Whereasdisregard and contempt for human rights have resulted in barbarousacts which have outraged the conscience of mankind.1

The diplomatic process that led to the adoption of the Universal Declaration ofHuman Rights (or the Declaration) began in 1946 in New York City, where thenuclear UN Commission on Human Rights met for the first time and set outthe guidelines for drafting the text adopted by General Assembly resolution in

1948.2

Together with two other diplomatic eventsthe San Francisco Confer-ence of1945, which adopted the UN Charter (or the Charter), and the LondonConference that same year, at which the Allies agreed on the legal contours ofthe postwar Nuremberg prosecutionsthe Declaration laid out the normativeunderpinnings of an international system governed by the rule of law andrespect for human rights. This founding trifecta would be relied on by futuregenerations of lawyers and diplomats to create institutions aimed to prevent andlimit 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 theinstitutional structures of these distinct projectscollective security, humanrights, and international criminal lawdiverged almost immediately after they

were created, each has influenced and affected the developments of law anddiplomatic practice in the other. And the interconnectivity, occasional incom-mensurability, and fragmentation among the three projects present an ongoingchallenge to addressing challenges to international peace. This article examinesone 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 andsources.

1. The Universal Declaration of Human Rights, preamble, second recital, adopted as GARes. 217 (III) (1948).

2. The Tokyo Trials for war crimes committed by Japan played an important part in thepostwar development of international criminal liability but has had little impact on the narrativesurrounding the larger international human rights and international criminal law projects. See,for example, Allison Marston Danner, Beyond the Geneva Conventions: Lessons from theTokyo 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 unilateralprocess creating it, the prosecutorial strategy deployed, the deficiency 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


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of the Declaration considered (or failed to consider) the role of rights protectionas either a necessary precursor or a hindrance to an enduring global peace.

The drafting of the UN Charter was deeply intertwined with the conclusionof 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-WWIIcollective security systembuilding as it did on the failed League of Nationsformally sought to reconcile and link two central goals: to maintain peace andsecurity 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 ofthe Charter, which declares that the United Nations are determined to savesucceeding generations from the scourge of war as well as to reaffirm faith infundamental 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 nexusbetween the aggression of the Axis powers and the rejection by those regimes ofthe universality of rights. Ending war and stabilizing peace lie at the center ofthe UN legal framework; maintaining peace and security is the work of theSecurity Council, the only UN organ with the power to bind member states toits resolutions.4 The human rights institutions of the United Nations, in par-ticular the Human Rights Commission (or the Commission), which sponsoredthe drafting of the Declaration, were created under the umbrella of the General

Assembly, a plenary body of member states that permits a universal approach tosetting norms but possesses no binding legal authority or enforcement mecha-nism to compel member states to action.5This asymmetry between the hard lawgoverning the use of force and the less robust mechanisms of human rightsprotections remains an enduring characteristic of the international system.

On one hand, in the language of the preamble and in the creation of theEconomic and Social Council to address issues of human rights, the new UNCharter explicitly recognized that protection of the dignity and rights of theindividual 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. UN Charter, preamble.4. UN Charter chaps. V, VI and VII.5. UN Charter chap. IV.6. UN Charter chapter IX, article 55 begins,

With a view to the creation of conditions of stability and well-being which are necessaryfor peaceful and friendly relations among nations based on respect for the principle ofequal 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 inter-

national cultural and educational cooperation; and

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legal order constructed by, of, and for the sovereign nation state. This internalcontradiction is embodied by the nonintervention provisions of article 2(7) ofthe Charter, which provides that [n]othing contained in the present Chartershall authorize the United Nations to intervene in matters which are essentially

within the domestic jurisdiction of any state or shall require the Members tosubmit such matters to settlement under the present Charter; but this principleshall not prejudice the application of enforcement measures.7

Within the nascent international criminal law project, the Nurembergprocess sought to erase certain privileges of sovereignty by removing particularcrimeswar crimes and crimes against humanityfrom the exclusive jurisdic-tion of states. One goal was to deter future aggression through individualliability and the removal of individual immunities to prosecution. But Nurem-berg 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 andatrocities committed by the Nazi regime as part of its peacetime domesticgoverning policies.8 It was the war, rather than the atrocities themselves, thattriggered the imposition of international jurisdiction.9

Unlike the conflicts of today, the end to the total war was accomplishedthrough unconditional surrenders in Europe and the Pacific. Yet, despite notbeing a negotiated peace, several questions that bedevil peace processes today

were present at the end of the war and surfaced throughout the discussions ofthe text of the Declaration. The core of this debate, pitting the idea of univer-

salism of rights applicable across a range of social and cultural contexts againsta pragmatic/realist account of resolving armed conflicts was reflected, at timesmore implicitly than explicitly, in the drafting process of the Declaration.10Thedrafting of the Declaration occurred over three phases: The Drafting Commit-tees work in 194711 and early1948,12 discussions of committees draft by the fullHuman Rights Commission in 194713 and 1948,14 and the later debates over thedraft at the meetings of Economic and Social Council and the General Assemblyin 1948, including the final adoption of the Declaration as a General Assemblyresolution 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, Geno-cide in International Law and International Relations Prior to 1948, in The Genocide Conven-tion Sixty Years After its Adoption, ed. Christoph Safferling and Eckart Conze (The Hague, 2010).

10. The official documents of these meetings are now, helpfully, available online at the DagHammarskjold 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

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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 theconnection 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 theUnited States. Small and medium statesWestern and non-Westernplayedan important and influential role.16What the delegates had in common was thatthey had all experienced, in one way or another, the Second World War. But thelessons they would draw from the war as they set out to design the human rightssystem were often at odds. The delicate balance between peace and justice laidout in the Charter had quickly been tested by the Nuremberg trials and by thetime of the first meeting of the Human Rights Commission had been exposed asa relatively complex bargain. By the end of the drafting process, the debate was

overshadowed and increasingly influenced by the emerging ideological strugglesof the Cold War. A future of international politics carried out in accordance withrespect for a universal conception of rights was an abstract ideal, even for themost committed delegates.

Several issues that have proved problematic for peacemakers in the interimyears were raised, discussed, and, in many cases, left unresolved during thedrafting process. First, the issue of retroactive application of law to a formerregime or particular governmental leaders proved controversial, despite generalsupport among the delegates of the Nuremberg processs application of victors

justice. Second, the question whether human rights observance is a necessaryprecondition to enduring peace, raised philosophical debates, frequently split-ting along ideological lines, about the purposes of a human rights framework.

And third, a significant threshold institutional question hovered above theproceedings: how would any new human rights institutions, in particular theHuman Rights Commission, influence or complement the central peace andsecurity functions of the Security Council?

The first meeting of the nine-member nuclear Human Rights Commissionin 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 sacrifice ofso many lives, the lessons which will aid us to achieve the highest aspirations of

15. Scholars who have criticized the Declaration as representing exclusively Westernvalues have pointed to the Western education and professional backgrounds of some non-Western delegates such as Charles Malik and P. C. Change as evidence that these influentialdrafters were more Western in their outlook. May Ann Glendon has persuasively responded tothis 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 Rooseveltand 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



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mankind.17Moreover, at the initial session it was recommended that, while theCommission began is work on crafting an international bill of rights, thegeneral principle should be accepted that provisions for basic human rights beincluded in international treaties, particularly peace treaties, that similar provi-

sions be accepted by all States, Members of the United Nations, and by Statesseeking admission to the United Nations.18 The Commission also recom-mended 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 Fromthe beginning, the Commission saw its task of articulating and promulgating acharter of human rights as complementary to the United Nations broadermission to prevent war and also viewed forward-looking commitments to humanrights 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 existedaround the globe, and to draw on expertise about human rights from govern-ments and nongovernmental experts and organizations. John Humphrey, aCanadian international law expert, was appointed head of the new UN Secre-tariat Division of Human Rights that coordinated the information gathering,and it was Humphrey (not Rene Cassin, as Cassin later claimed) who providedthe initial draft of the Declaration.20 Humphreys office was also assigned by theCommission to include information on the Nuremberg and Tokyo trials whichmight be important in the field of human rights.21 That report, titled Infor-

mation Concerning Human Rights Arising from Trials of War Criminals wassubmitted to the Commission in December 1947, provided details of what wasknown about the full scope of atrocities committed by the Axis powers.22

The first full meeting of the eighteen-member UN Human Rights Commis-sion in January1947, at which Eleanor Roosevelt was elected chair, did not goentirely smoothly. Delegates argued about political philosophy and the nature ofrights and foreshadowed the central conflict for the drafting process to come:how their work should be implemented, in particular whether the work of theCommission 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 specific

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 theHuman Rights Commission. UN Document E/CN.4 SR.43, 8. See Johannes Morsink, TheUniversal Declaration of Human Rights: Origins, Drafting and Intent(Philadelphia, 1999), 40 n.9,



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Hernn Santa Cruz (Chile), Ren Cassin (France), Geoffrey Wilson (for LordDukeston) (United Kingdom), and Vladimir Koretsky (USSR), held its firstmeeting in June 1947. In the intervening months since the Commissions initialmeeting and the Drafting Committee gathering, world events had changed

dramatically. The United States had sent aid to Turkey and Greece withoutconsultation to the new Security Council, and U.S. assistance to WesternEurope through the Marshall Plan had begun. With the Cold War setting in, theuse of the Security Council as a collective security mechanism was beginning tolook like a dead letter. These outside realities had an effect on the delegates andon the product of their deliberations, which shifted over the course of thenegotiations from a project aimed at drafting a binding international agreementon human rights to one of a statement of principles adopted as a nonbindingGeneral Assembly resolution.

At the initial meetings, the question of accountability for past war crimes orhuman rights abuses was not explicitly discussed, since by 1945, any earlierdebates over accountability within and among the Allied governments had beenresolved in favor of trials.24 As Gary Bass has chronicled, the U.S. decision toprosecute, rather than seek brutal vengeance through summary executions,deportations, and demilitarization and de-industrialization of the German home-land, was a victory for the American tradition of rights and a particularly

American brand of legalism: punishment only for those who could be proved tobe 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 postwarorder, one in which the people of Germany and the other Axis powers would learnto embrace a culture of civil and political rights under the rule of law. Further,earlier proposals to returnGermany to a pastoral preindustrialstate were defeatedon 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 centralrole in constructing the framework of civil, political, economic, and social rightsof 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 initialapproval at the Quebec Conference of September 1944 of summary executions of Nazi warcriminals, an idea put forward by Treasury Secretary Henry Morgenthau, Jr.). Bass recountssome of Morgenthaus more extreme suggestions, including mass deportations of Germancitizens and complete de-industrialization of Germany. Ibid., 15260.

25. Ibid., 16466 (discussing Stimsons explicit reliance on the criminal procedural protec-tions 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 fromStimson 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 beingsand to live in the pursuit of happiness and victors and vanquished alike are entitled to freedomfrom economic want. Ibid., 168.



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The Holocaust did not, however, play a leading role at the Nurembergtrials.28 To the extent that crimes of the Holocaust were addressed at Nurem-berg, they were lumped with other war crimes and atrocities, which U.S. ChiefProsecutor Robert Jackson saw as peripheral to the big event: showing that the

Nazis designed an illegal attack on the international peace. The other atroci-ties, Jackson claimed, were all preparatory to it or done in execution of it.29

International criminal prosecution was connected not to the commission ofatrocities but to war. As Jackson reported, The reason that this program ofextermination of Jews and destruction of the rights of minorities becomes aninternational 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 wehave no basis for dealing with atrocities.30 Similarly, for the British, the Holo-caust and other war crimes were very important but secondary reason for

punishment of the Germans for their conduct of the war.31

The USSR hadtaken a different tack pre-Nuremberg, moving swiftly to try Germans for warcrimes in the areas the Soviets reoccupied in late 1943 and early 1944. At theLondon Conference, the Soviets agreed to U.S. plans for Nuremberg asreflected in the Charter of the International Military Tribunal (IMT), but laterreveled in using the trials for propaganda and worked to undermine theirlegitimacy by threatening to turn them into show trials.32

Indeed, the failure of the Nuremberg trials to address the peacetime crimesof the Holocaust prompted Raphael Lemkin to pursue a separate path through

the new General Assembly to criminalize genocidethe term Lemkin hadcoined to describe a states elimination, or attempt to eliminate, and entirepeople.33 Lemkins efforts at the General Assembly were more successful,leading to the 1946 resolution declaring genocide to be an international crimeand later to the adoption in December 1948 of the Genocide Conventionjusttwo 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 ledthem 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 Report1945).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 Nurembergduring 1945 and 1946, and his work defining genocide as a crime separate from other offensesto the laws of war was well known to Jackson and his team. But Lemkin only partially succeededin his efforts to have genocide included in the charges at the IMT; the U.S. prosecution teaminserted 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 andon the High Seas. Apart from this minor victory for the application of his new term, Nurem-berg was largely a disappointment to Lemkin; the IMT judgment did not include atrocities



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The failure to include in the Nuremberg indictments crimes committedwithin sovereign territory that were unconnected to the war did not, however,reflect any ambiguity or reluctance to punish the Axis powers more generally forthe war. The idea of waiving prosecution or negotiating away any backward-

looking process of accountability in exchange for peace was never an option.Rather, the choice was between an accounting for Axis war crimes via a judicialprocess or through summary justice on the front lines (i.e., shootings carried outby the military). Nonetheless, the discussion of how extensive de-nazificationtrials in occupied Germany should be, and how deep into the ranks of the Nazileadership, SS, and SA they should reach, reflected concerns about the balancebetween accountability for the past and the need to rebuild and establish newnorms to protect the peace. A similar concern about balancing past accountabil-ity with the need for enduring peacetime institutions animates contemporary

discussions of post-war justice.34

The evolution of the Declarations preamble text reflected different perspec-tives among the drafters of the causes of the war and the preconditions for alasting peace. Humphreys draft contained in its preamble the following prin-ciples: 1. That there can be no peace unless human rights and freedoms arerespected; and 4. That there can be no human freedom or dignity unless warand the threat of war are abolished.35 During the first meeting of the DraftingCommittee, Cassin rewrote and reorganized the Humphrey draft, revising thepreamble 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 principalcauses 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 longsas war and the threat of war are not abolished;

3. It was proclaimed as the supreme aim of the recent conflict that humanbeings should enjoy freedom of speech and worship and be free from fearand want;

4. In the Charter of26 June 1945 (The UN Charter) we reaffirmed our faithin fundamental human rights, in the dignity and worth of the humanperson and in the equal rights of men and women.36

This debate over the relationship between human rights and peace emergedduring the first meetings of the Human Rights Commission and gathered some

34. For a comprehensive overview of the issue raised by accountability or past atrocities, seeMartha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence(Boston, 1998).



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steam during the December 1948 debates over the Declaration at the ThirdCommittee 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 humanrights of the Universal Declaration should be viewed instrumentally. Johannes

Morsink suggests that Pavlov and the Soviet delegation took the view that therights enumerated in the Declaration have no legitimacy in their own right, butderive all their authority and justification from the goal and the cause of worldpeace which they are meant to serve.37 Rene Cassin strongly disagreed with thisapproach, citing the Nazi regimes atrocities as proof that a violation of humanrights in one country can be used as a precursor to attacks on the independenceof 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 sovereigntythrough several discussions with Vladimir Koretsky, the legal adviser to theSoviet delegation.38 Cassin relied on the UN Charter itself as the normativefoundation for the notion that rights transcend national claims of sovereignty. Inthat regard, he sought to balance the emerging conflict between delegates whosought to emphasize the central role of the individual and those that placedcommunitarian 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 ameans to achieving peace, which in turn reflected back to the goals of theCharter. Beneath all this lay Cassins own strong belief that the deprivation ofrights in Nazi Germany was a central cause of the war.

Not all participants in the drafting process or the delegates who voted on theDeclaration at the General Assembly shared the view that particular domestic

violations of rightstaking place wholly outside of warcould either be said tocause aggression or to require international scrutiny of state behavior. For the

Soviets, the idea of rights deprivations as a causus bellistrengthened the view thatinternational law could be used as a means to examine a full range on internal statebehavior, including political rights, which the Soviets believed to be fully withinthe discretion of the state. Moreover, Pavlov and others contested Cassinsaccount of the role of human rights deprivations as a cause of the World War II.

Cassins approach carried the day, and the preamble as finally adopted retainsCassins tone and specific reference to the war:

WHEREAS recognition of the inherent dignity and of the equal and inalien-able rights of all members of the human family is the foundation of freedom,

justice and peace in the world, and



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WHEREAS disregard and contempt for human rights resulted, beforeand during the Second World War, in barbarous acts which outraged theconscience of mankind and made it apparent that the fundamental freedoms

were one of the supreme issues of the conflict. . . . 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 occurredboth before and during the war. In declaring fundamental freedoms one of thesupreme issues of the war, it opens the door to questions of causation: Isthe protection of human rights a necessary perquisite for peace? Are rights-regarding states less likely to go to war with one another? The contemporarydebates over these questions reflect ongoing philosophical divisions over theconnection between rights and war as well as some healthy contestation ofempirical claims about the causes of war and peace.

Scholars and lawyers who claim that human rights protection should not besubordinated to the quest for peace look for support from one or several of thefollowing accounts of rights and peacemaking: human rights-regarding states,like democracies, are less likely to go to war with one another; where war isaccompanied by massive human rights atrocities, including genocide, account-ability for the abuses is necessary to rebuilding a civil society that promotespeace; accountability for crimes serves a pedagogical purpose and deters futureacts that might disturb the peace; and, justice, as reflected in backward-lookingmechanisms of accountability and forward-looking instruments to protecthuman rights, is a central normative goal of the collective security order.40

Under this last account, only peace with accountability can be considered a justor legitimate peace. Within each of these accounts lie deeper debates over theform and content of accountabilitywhether it is based on a Nuremberg modelof prosecution or some other more locally devised modes of accounting, retri-bution and/or reconciliation.41

In response to these claims of the necessity of justice, others have argued thatthe maintenance of peace is the central normative goal of the internationalorder.42 In an era of protracted and complex armed conflicts, many of which arefought within state borders between state and nonstate actors, and are accom-panied 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 viola-

tions, see: Diane F. Orentlicher, Swapping Amnesty for Peace and the Duty to ProsecuteHuman 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 achievejustice).

42. Louis Henkin has most famously called enforcement of the peace and security functions



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is made that rigid considerations of justice must be set aside to stop the killingand abuses. And because modern wars are unlikely to end with unconditionalsurrender to a state actor, the argument is made that accountability and humanrights protections can and should be bargained away in the pursuit of peace.43

Under this account, conditioning peace on accountabilitywhether domestic orinternationalis not only unnecessary but may create perverse incentives thatprolong war and suffering.44 Requirements that postwar regimes adopt particu-lar human rights norms should, under this view, be contingent on the ability tobroker peace.

The substance of the particular rights that were ultimately included in theDeclaration bears the marks of the war experience and of these philosophicaldivides. 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 ofnegative rights (the right to have government infringements on liberty keptin check) and positive rights (the right to collective provisions of social andeconomic rights) enumerated in the text.45 He also asserted that the persis-tent violations of human rights and fundamental freedoms in one part of the

world jeopardize the rights of people in other countries and will inevitablyresult in a situation that will eventually threaten the peace of nations.46 The pro-tection of human rights, in Humphreys view, would help secure a globalpeace.

Johannes Morsink has documented the ways in which the final draft of theDeclaration directly reflects the immediate experience of the war. More explic-itly than the Nuremberg process itself, the Declaration took into account boththe prewar deprivations of rights by the Nazi regime and the Holocaust itself.47

Morsink reaches the bold conclusion that the experience of the Holocaust gavethe delegates the confidence and certainty to believe in the truths theyenshrined in the Declaration, namely that all human beings are born free andequal 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 conflict resolutionapproaches, see I. William Zartman and Victor Kremenyuk, eds., Negotiating Forward- andBackward-Looking Outcomes (Lanham, MD, 2005).

44. See, for example, Julian Ku and Jide Nzibile, Do International Criminal TribunalsDeter or Exacerbate Humanitarian Atrocities? Washington University Law Review 84 (2006):777.

45. John P. Humphrey, The Universal Declaration of Human Rights, InternationalJournal 4, no. 4 (Autumn 1949): 352.

46. ibid.

47. See Johannes Morsink, World War Two and the Universal Declaration, HumanRights 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



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delineation of the rights in the Declaration as a direct repudiation of the fascistmodel of the state and of individual autonomy within the state. And while thisconclusion is generally inferred from the experience of the drafters prior to theirdiscussions from the text of the Declaration, rather than on explicit references to

Nazi practices or the Holocaust in discussions of the draft, delegates did occa-sionally discuss the proposed rights as a repudiation of the Nazi period. 50

For example, Cassin looked at the declaration in Article 1 that all humanbeings are born free and equal in dignity and rights and endowed with reasonand conscience and should act towards one another in a spirit of brotherhoodas alluding to liberty, equality and fraternity because during the war these greatfundamental principles of mankind had been forgotten.51 The assertion ofinequality of man was the perquisite of Hitlers attacks on liberty. [M]illions ofmen had lost their lives, precisely because [the principles of dignity and equality]

had been ruthlessly flouted.52

The nondiscrimination principles in Article 2, serve as a kind of umbrellaprovision requiring that the rights enshrined in the Declaration be appliedwithout distinction of any kind, such as race, colour, sex, language, religion,political or other opinion, national or social origin, property, birth or otherstatus, and without regard to the status of the place where the individualresides.53 Article 7 provides for equal protection and nondiscrimination beforethe law.54 These nondiscrimination principles have been adopted in every sub-sequent 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 opportunityto criticize civil rights conditions in the United States, a theme that wouldrepeat 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 surgicalexperiments done by the Nazis. The Uruguayan delegation proposed adding aright 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 thetext and the Holocaust on the availability of the war crimes report prepared for the Commissionby the UN Office of Human Rights. Morsink, Drafting and Intent, 40.

51. UN Document AC.1/SR.8, 252. 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.



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right to life, in particular, reflected some concern about the many ways in whichlife was cheap to the Nazi regime.57 The discussion of the cheapness of life inNazi Germany raised the opportunity for delegates to focus on maltreatment ofindividuals in other states. The Soviet delegation in the Third Committee

criticized British colonial policies and referred to the lynching of African Ameri-cans. The UK delegate responded in kind with a statement about Stalinsconcentration camps. In his words, the discovery of concentration camps inNazi Germany had proved that it was possible for a totalitarian State to concealit activities from its own population and even from its officials and that once aState resorted to police methods it could no longer stop.58

Article 4 forbids slavery and servitude in all their forms. Cassin includedthe latter phrase because there were attenuated forms of slavery carried out byGermany.59 Though perhaps few of the delegates from the east needed a

reminder of it, the War Crimes Report delivered to the Commission hadincluded a summary of Nazi enslavement and forced labor practices. Similarly,the provisions of Article 5 prohibiting torture [and] cruel, inhuman or degrad-ing treatment or punishment were influenced by the medical experimentsunder taken by the Nazi regime on living human beings.

Articles 6 through 12 provide for legal rights, which include the right to legalpersonality (art. 6), equality before the law (art. 7), right to effective remedyunder law (art. 8), freedom from arbitrary arrest and detention (art. 9), anindependent judiciary (art. 10), a presumption of innocence (art. 11), and a right

to privacy (art. 12). These articles were heavily influenced by domestic bills ofrights that had been reviewed by the Drafting Committee. The reassertion ofeach of these fundamental judicial rights was a direct response to the breakdownof the independent judiciary and any equality of law or protection from arbitrarytreatment under the Third Reich. Disagreements on these provisions generallyrevolved around differences between legal systems and the need for consensuslanguage to express particular ideas.

Article 11, however, provided a particular problem for the delegates. Asoriginally 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, inconformity with the law, and after a fair trial at which he has had an oppor-tunity for a full public hearing. Nor shall anyone be convicted of a crimeunless 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 asundermining morale, spreading malicious propaganda, or for merely proclaiming the war islost. Morsink, Drafting and Intent, 40 n.10.



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offense, nor be subjected to a penalty greater than that applicable at the timeof the commission of the offense.60

Cassins rewrite separated the article into two paragraphs, editing the firstparagraph to read No one shall be held guilty of any offence until legallyconvicted, which became in the final draft Everyone charged with a penaloffence has the right to be presumed innocent until proved guilty according tolaw.61

The latter part of the original Humphrey provision concerning nullen crimesine lege (no crime without law) posed potential conflicts with jurisprudence ofthe Nuremberg and Tokyo tribunals. Morsink notes that some delegationsthought that at least some of the Nuremberg charges were not firmly groundedin pre-existent international law, which in their eyes made the judgments ques-tionable from a strictly legal point of view.62The working draft at the time theSecond Session of the Commission met read, No one can be convicted of acrime unless he has violated some law in effect at the time of the act charged asan offence nor be subjected to a penalty greater than that applicable at the timeof the commission of the offences.63 The Belgian and Philippine delegationsraised the concern that this provision conflicted with the Nuremberg judgmentsand proposed an amendment that read Nothing in this Article shall prejudicethe trial and punishment of any person for the commission of any act which, atthe time it was committed, was criminal according to the general principles oflaw recognized by civilized nations.64 The Soviet delegate also expressedconcern about a potential conflict, requesting that the text be amended topreclude the defense ofnullen crime sine lege (i.e., the defense raised by some ofthe Nuremberg defendants that their acts were legal at the time they werecommitted). The Chinese representative at the meeting, Dr. C. H. Wu, stated itmore starkly, noting that The Commission was on the horns of a dilemma. Onthe one hand, there was the principle that no one should be judged guilty of anact which was not a crime at the time of its commission. On the other hand, hecould understand the view that the Nuremberg War Crimes Trial should not bedeclared illegal.65 He proposed limiting the retroactivity exception to gravecrimes against humanity, an amendment that was defeated on the grounds thatit was seen as too restrictive and only reflected one category of crimes chargedat 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 final sentence not included

here read: No one, even if convicted for a crime, can be subjected to torture. It was droppedduring discussion in the Third Committee and didnt affect the discussion of the retroactivityprovisions. E/CN.4/21, 75.



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The debate over nonretroactivity was an important one, and carried over tothe Third Session of the Commission. The representative of the World JewishCongress fought back attempts to omit the so-called Nuremberg clause arguingthat its omission would be contrary to the Hague Convention of1907 as well as

to the principles established by the IMT, which protected the law of humanityagainst violation by national laws. Removing that clause would constitute astep back in international law.66 After more debate, a subcommittee of theUnited Kingdom, India, France, China, and Yugoslavia was given the task ofdeciding the text of the article. The Nuremberg clause was dropped alto-gether, replaced by: No one shall be held guilty of any offences on account ofany act or omission which did not constitute an offence, under national orinternational law, at the time when it was committed,67 language that is veryclose to the final text of Article 11. At the Third Committee, some delegates

(e.g., Cuba) expressed concern that the language appeared to validate andlegitimize, as a matter of international law, the Nuremberg judgments. Others,like Belgium and Greece, took the opposite view: the text did not go far enoughin explicitly endorsing the judgments and might still be used by some as a toolfor criticizing Nuremberg.68 The majority of the delegates took the middleground, supporting what became the final text: No one shall be held guilty ofany penal offence on account of any act or omission which did not constitute apenal offence, under national or international law, at the time when it wascommitted.69 The scope of what constitutes a penal offence under interna-

tional law has expanded considerably since 1948, as a result of the growth ofinternational criminal law in the postCold War period and the establishment ofthe International Criminal Court in 2002. Attention to the problem of retro-activity and nullen crime sine lege in Article 11 helped pave the way for legitimiz-ing those future efforts, which do not carry the taint of victors justice borneby the Nuremberg and Tokyo efforts.

In discussions of other political and civil rights provisions, the hardeningconflict between the United States and the Soviet Union was on display. Article21, for example, provides for a right to participate in government. This provi-

sion also drew from the survey of world constitutions prepared by Humphreyand his staff. It does not, however, include a specific right to form politicalparties, after objection by the Soviet Delegation during the Third Committee toa 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.



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Morsink notes that the Declaration omits specific mention of the ideologicallosers of the war, fascism and Nazism, but also omits what he calls thewinning ideology, democracy.71 Taken together, however, the political andcivil rights provisions of the Declaration provide a framework for the right to

representative forms of government, governed by the rule of law, in whichpeople 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 directrepudiation of the fascist model of state power, even if the particular label ofdemocracy is not attached to those provisions. The fact that the language ofthe Declaration has been directly or indirectly incorporated into thirty-fivedemocratic national constitutions since 1948 indicates the broad compatibilityof the Declaration with democratic norms.

The three transnational provisions of the Declaration, those that refer to howindividuals are treated between and among nation states and to the recognitionof persons internationally, are more directly tied to international governanceand the maintenance of peace.72The inclusion of each of these provisions can betraced directly to the war: the failure of states to accept refugees from NaziGermany, the denial of exit visas and other restrictions on the movement ofpeoples, 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 theborders of each state.

(2) Everyone has the right to leave any country, including his own, and toreturn 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 thatinternational 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 asylumfrom persecution.

(2) This right may not be invoked in the case of prosecutions genuinelyarising from non-political crimes or from acts contrary to the purposesand principles of the United Nations.

As with Article 13, the language went through many redrafts, reflecting theconcern 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



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individuals who might not otherwise be accepted for normal immigration intotheir states. The draft language to be granted asylum was replaced by toenjoy asylum, based on the objection of many states to the notion of anobligation to grant asylum where the contours of the duty to provide asylum

were not fully articulated. The Soviet Union and other delegations raised thespecter of being required to accept as a refugee an individual who had commit-ted domestic or international crimes. The solution was the inclusion of languageexcepting the obligation to grant asylum in the case of individuals prosecuted fornonpolitical crimes or who act contrary to the UN purposes. Cassin and othersrecognized that, in addition to these legal concerns, the potential financialburden on individual states facing an influx of refugees might require assistancefrom the United Nations.74 This was not a theoretical problem; by the time ofthe meeting of the Third Committee in late 1948, the Israel-Palestinian crisis

had sent500,000 refugees into neighboring states. While no language was addedrequiring UN support or intervention, it became clear that concerns surround-ing financial and material support of individuals displaced by war and the legalissue of repatriation of refugees to their home states would need to be addressedby the United Nations in the future.75

Article 15 provides the right to nationality and the right to change nation-ality. The right to nationality was a significant response to Nazi policies andatrocities, in particular the systematic stripping of citizenship of Jews as a meansto enable confiscation 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 discussionabout the role of the United Nations. Several amendments were proposed that

would impose an obligation on the United Nations to prevent statelessness. Thefinal language was straightforward: Everyone has a right to a nationality. Noone shall arbitrarily denied of his nationality nor to be denied to change hisnationality.76

The section of the Declaration dedicated to economic, social, and culturalrightsArticles 22 through 27appears on its face less directly concerned with

the causes of war and atrocities. But in her broad history of the Declarationsorigins, Mary Ann Glendon concludes that Article 26 is one of the few articlesof the Declaration directly influenced by the European Holocaust.77 Althoughthe record makes it difficult to weigh which provisions were more or lessdirectly influenced by the Holocaust, education was indeed seen by the del-egates 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.



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December 1947 meeting in Geneva commented that the working draft provideda technical framework but failed to capture the spirit governing education,lack of attention two that in Germany, he claimed, had been the main cause oftwo catastrophic wars.79 His proposed language was reflected in the final lan-

guage of Article 26(2), and the final text reads as follows:

Education shall be directed to the full development of the human personalityand to the strengthening of respect for human rights and fundamental free-doms. It shall promote understanding, tolerance and friendship among allnations, racial or religious groups, and shall further the activities of theUnited Nations for the maintenance of peace.80

The latter part of Article 26(2) was added on the motion by Mexico and theUnited States at the Third Committee meeting in 1948.81 While the formal

right to education would be more fully articulated in the International Covenanton Economic, Social and Cultural Rights (ICESCR), Article 26(2) laid out abroad normative commitment that was explicitly linked to international peaceand security.

The Soviets injected politics into the discussions of Article 27the right toparticipate in culture and enjoy the fruits of scientific achievements. The text asadopted reads as follows:

(1) Everyone has the right freely to participate in the cultural life of thecommunity, to enjoy the arts and to share in scientific advancement andits benefits.

(2) Everyone has the right to the protection of the moral and materialinterests resulting from any scientific, literary or artistic production of

which he is the author.82

The Soviet delegation nearly succeeded in its attempt to link a Soviet concep-tion of democracy and the cause of peace to the right to scientific explorationand knowledge. The Soviets proposed to amend the language of Article 27 withthe 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 amend-ment was Soviet criticism of the U.S. nuclear program and the Americandecision to use nuclear weapons against Japan as well as the Soviet rhetoricalcondemnation of the militarization of science in the United States. Pavlovargued that universities in the United States were transformed into veritablelaboratories of research for military purposes and that men of learning found

79. Ibid.80. Universal Declaration of Human Rights, art. 26(2).81. Glendon, A World Made New, 189.



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their personal freedom restricted.84 But other delegations worried that, withoutan agreement on the term democracy, the phrase would permit states to directthe 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 putin service of the democratic state. The debate again centered on the meaningof the term democratic, and also on the role of the state. Delegates supportiveof communitarian and more explicitly Communist conceptions of state power

were comfortable subordinating the recognition of rights to the needs of thestate, which they viewed as having already perfected democracy. On the otherside were delegations who viewed rights recognition as normatively superior tothe idea of state interests. For them, protection of human rights was a prereq-uisite 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 themember states to the commitments of the declaration by adopting the principlesas domestic law and tying it to their commitments under the UN Charter. Hispurpose was to internationalize human rights; to convert these broad prin-ciples into international obligations.86 As the drafting project shifted away fromone aimed at creating a binding treaty, that element of Humphreys draftreemerged in two different forms. First, in Article 29,

(1) Everyone has duties to the community in which alone the free and fulldevelopment of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject onlyto such limitations as are determined by law solely for the purpose ofsecuring due recognition and respect for the rights and freedoms ofothers and of meeting the just requirements of morality, public order andthe general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to thepurposes 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 actaimed 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 govern-

ment under which adherence to human rights could be seen as exclusively the purview ofinternational law. His proposal thus envisioned concurrent jurisdiction between a nationalconstitutions bill of rights and any binding international rights covenant.



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The effect of both these provisions is to make the individual an actor in inter-national law, a development that would have implications for the role of indi-

viduals in peace processes. And, perhaps more subtly, the Declaration nudged inthe direction of preferencing a particular kind of liberal democratic form of

government in its limitation on rights measured against the needs of a demo-cratic society.

The negotiated text is not, of course, the whole story of the legacy of theDeclaration in the context of peace processes. Over the past sixty years, theDeclaration has influenced the very structure of the international system andthe states that are members of that system. In addition to being integrated intonational constitutions, it served as the basis for the two central human rightscovenantsthe 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 founda-tion for any discussion of human rights behavior within the United Nations andother international human rights institutions. Judging states against the rightsenumerated in the Declaration has become broadly accepted as the meansthrough which the international community evaluates the acceptability of statebehavior, including for the purpose of imposing international sanctions and theuse 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 concern-ing civil and political rightshas influenced the process of peacemakingdirectly. Since the adoption of the Declaration, scores of formal peace agree-ments have been concludedforty-nine since the end of the Cold War. Of thesepostCold War agreements, twenty-three make explicit reference to the Dec-laration, and almost all the remaining agreements invoke the norms of theDeclaration in their discussions of human rights. Christine Bell refers to the lawcreated by these peace processes as lex pacificatoria, or the law of peace.89Thislex pacificatoria increasingly includes formalized mechanisms for postconflict

human rights institutions and some means of addressing war crimes and masshuman rights violations that accompanied the conflict. More broadly, the Dec-larations elevation of the rights of individuals in a way that renders themsubjects of international law, and not merely objects or passive beneficiaries of it,has meant that the principles can be and have been invoked by anyone with aninterest in the outcome of a peace process, including both victims and perpe-trators of war-time atrocities.



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