Genocide, Rape, and Crimes against Humanity: An Affirmation of Individual Accountability in the Former Yugoslavia in the Karadzic Actions

By Isenberg, Beth Ann | Albany Law Review, Spring 1997 | Go to article overview
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Genocide, Rape, and Crimes against Humanity: An Affirmation of Individual Accountability in the Former Yugoslavia in the Karadzic Actions


Isenberg, Beth Ann, Albany Law Review


I. 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.

II. 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.

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