A Wolf in Sheep's Clothing? PDF

ARTICLE A WOLF IN SHEEP’S CLOTHING? TRANSITIONAL JUSTICE AND THE EFFACEMENT OF STATE ACCOUNTABILITY FOR INTERNATIONAL CRIMES Laurel E. Fletcher* ABSTRACT If i...

ARTICLE A WOLF IN SHEEP’S CLOTHING? TRANSITIONAL JUSTICE AND THE EFFACEMENT OF STATE ACCOUNTABILITY FOR INTERNATIONAL CRIMES Laurel E. Fletcher* ABSTRACT If international atrocity crimes are acts so egregious that their impunity cannot be legally tolerated, why don’t we punish States that commit them? The rise of international criminal law is celebrated as an achievement of the international rule of law, yet its advance effectively may come at the expense of holding States accountable for their role in mass violence. Transitional justice has emerged as the dominant normative framework for how the international community responds to mass violence. Liberalism strongly influences transitional justice, which has produced individual criminal accountability as the desired form of legal accountability for atrocities. Transitional justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate (lack of positive law). In fact, transitional justice theorization of justice largely ignores legal accountability for States. Without legal accountability, States enjoy moral and legal impunity for their crimes. States escape their legal obligations to repair the injury they cause and to institute reforms that secure a fuller measure of justice and peace. This Article examines * Clinical Professor of Law, University of California-Berkeley, School of Law; J.D., Harvard Law School, 1990; B.A., Brandeis University, 1986. I am grateful to Kathryn Abrams, Roxanna Altholz, Christopher Kutz, Saira Mohamed, Eric Stover, and Harvey M. Weinstein for their valuable feedback and engagement with this project. Participants in the International Workshop at the Frankfurter Cluster of Excellence “The Formation of Normative Orders,” the ASIL Research Forum, and faculty workshops at Berkeley Law and UCLA also provided helpful comments on earlier drafts of this article. I am indebted to Abigail Ludwig ‘15, Sahar Maali ‘15, and Bina Patel ‘16 for their research contributions, to the Berkeley Law librarians for their research support, and to Olivia Layug Balbarin for her generous administrative assistance. 447 448 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 how international law and transitional justice have developed conceptually to effectively prevent legal accountability for States that commit atrocity crimes, and argues that a new politics of transitional justice is necessary to harness the productive potential of State legal accountability to achieve a fuller measure of international justice. ABSTRACT.......................................................................................447 INTRODUCTION.............................................................................449 I. THE POSTWAR DEVELOPMENT OF INTERNATIONAL BRANCHES REGULATING ACCOUNTABILITY FOR MASS CRIMES: INTERNATIONAL CRIMINAL LAW, STATE RESPONSIBILITY, AND HUMAN RIGHTS.........459 A. International Criminal Law................................................461 B. State Responsibility and Human Rights.............................468 1. Codification Efforts of State Responsibility.................470 a. Efforts to Define State Responsibility for International Crimes.............................................470 b. Differentiation of International Legal Responsibility.......................................................473 2. Human Rights Law.......................................................476 II. THE RELATIONSHIP OF LEGAL ACCOUNTABILITY TO TRANSITIONAL JUSTICE...................................................481 A. Transitional Justice: An Overview.....................................483 B. Conceptions of Accountability in Transitional Justice.......487 1. Nuremberg/Absolutist Accountability Model...............488 2. Hybrid Accountability Model.......................................491 3. Grafted Accountability Model......................................496 C. Implications of Transitional Justice Models of Accountability for State Accountability............................501 1. Human Rights Effaces State Responsibility to the International Community............................................502 2. Human Rights Effaces Remedies for State Violations of Duties to the International Community.................................................................503 III. TOWARD STATE ACCOUNTABILITY FOR MASS VIOLENCE.............................................................................505 A. The Contribution of International Law Scholarship to State Accountability for Mass Violence............................507 2016] TJ AND STATE ACCOUNTABILITY 449 1. The Normative Contribution of State Responsibility to Transitional Justice.................................................510 2. The Remedial Contribution of State Responsibility to Transitional Justice.................................................512 3. Evaluation of International Transitional Justice Remedies: Law Versus Policy....................................514 4. Location and Enforcement of State Responsibility.......515 B. The Disappearance of State Accountability in UN Security Council Referrals................................................517 1. Finding but Not Acting on State Responsibility...........518 2. The Opportunity of Enforcing State Obligations to the International Community......................................519 3. The Challenge to Enforcing State Obligations to the International Community............................................521 C. Changing the Politics of International Justice....................522 1. Transitional Justice’s Conception of Law and State Liability.......................................................................523 2. Overcoming Transitional Justice’s Elision of State Legal Accountability...................................................526 CONCLUSION..................................................................................530 INTRODUCTION Referring to the violence in Syria, Navi Pillay, then UN High Commissioner for Human Rights, declared: “It’s the Government that is mostly responsible for the violations and all these perpetrators should be identified and can if there is a referral to the International Criminal Court.”1 This logic is as familiar as it is constructed. Ever since the Nuremberg trials, the international community has embraced individual criminal accountability as a value and goal necessary to achieve justice for international atrocity crimes—acts that are now recognized as war crimes, crimes against humanity, genocide, and 1. United Nations, UN/Syria Update, UNIFEED (Apr. 8, 2014), http://www. unmultimedia.org/tv/unifeed/asset/U140/U140408d/ (last visited May 26, 2015); see also UN Rights Chief: Syria Government Abuses ‘Far Outweigh’ Rebels, JURIST: PAPER CHASE (Apr. 9, 2014, 12:40 PM), http://jurist.org/paperchase/2014/04/un-rights-chief-syria-government- abuses-far-outweigh-rebels.php. 450 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 crimes of aggression.2 Justice punishes wrongdoers, removes bad leaders, and aims to stop the bloodshed. Therefore, it is foreseeable that as the civilian casualties and death toll mount in the Syrian crisis, international consternation will move from hand wringing to proposals for intervention. In May 2014, the UN Security Council considered a French proposal to refer the situation in Syria to the Prosecutor of the International Criminal Court (“ICC”), who would investigate and bring perpetrators to justice.3 Predictably, Russia and China vetoed the resolution.4 Also unremarkable was that despite acknowledgment that the Syrian State was committing international crimes,5 the resolution contained no calls to punish the Syrian State for these acts or to impose legal consequences for its involvement in atrocities. Such measures might include compensation for the victims; the establishment of a truth commission; or more muscular interventions like ensuring free elections, redrafting the constitution, or reform of state institutions. There is no supranational criminal court of justice akin to the ICC, to which the Security Council could refer the Syrian State for criminal sanction. In fact, few likely considered the absence of international calls for State legal accountability remarkable. The permanent criminal court stands as the normative pinnacle of the international community’s response to mass violence. Prosecution by the ICC arguably confers the highest form of international opprobrium and demonstrates the commitment of the international community to provide justice for the crimes committed. The Court stands as a symbol to punish leaders who have orchestrated widespread and illegal destruction and functions as an institution to normalize accountability for international crimes. Yet we are missing 2. International atrocity crimes refer to acts prohibited by states and criminalized by international treaties or custom for which individuals may be prosecuted by international criminal courts or by states that have jurisdiction over alleged wrongdoers. André Nollkaemper, Systemic Effects of International Responsibility for International Crimes, 8 SANTA CLARA J. INT’L L. 313, 332 (2010) [hereinafter Systemic Effects of International Responsibility]. These crimes include the crime of aggression, crimes against humanity, genocide, torture, and terrorism. Id. In this Article, the terms “international atrocity crimes” and “mass atrocities” will be used interchangeably. 3. UN Security Council, The Situation on the Middle East, U.N. Doc.S/PV.7180, 3/18 (May 22, 2014); S.C. Res. 348, ¶ 2 U.N. Doc. S/2014/348 (May 22, 2014) [hereinafter Proposed Syria S.C. Resolution 348]. 4. UN Security Council, The Situation on the Middle East, U.N. Doc. S/PV.7180, 4/18 (May 22, 2014). 5. Id. ¶ 1. 2016] TJ AND STATE ACCOUNTABILITY 451 an important discussion about legal accountability of the sovereign State for its perpetration of mass violence. Ironically, as the technologies of State violence become increasingly sophisticated and brutally lethal (the use of chemical weapons against Syrian civilians, targeting of civilians and assaults of towns in Libya, aerial bombing of villages in the Sudan, etc.), international institutions have narrowed their targets of legal responsibility to a handful of individuals. In other words, the legal response to atrocities has downsized its unit of attention even though the legal and factual basis for State accountability persists, if not grows stronger. State-sponsored mass violence, such as that in Syria, is a result of State policy, also referred to as “system criminality.”6 This means that collective structures of the State become the instruments of criminal terror and may be most obvious when Syrian armed forces are deployed to attack civilians. Less visible when examining specific violations, but critical to understanding the involvement of the State in such horrors, are the ways in which the State infrastructure is used as an instrument to contribute to and enable State policies of mass violence. Just as Nazi extermination policies rested on discriminatory laws, an authoritarian political structure, an economy geared toward war, etc., so too is the Assad regime’s campaign against civilians an escalation of the authoritarian State’s response to peaceful demands for democratic reforms.7 State policies shape and maintain structural inequalities that in turn produce and maintain political, social, and economic marginalization, which contribute to conflict.8 The Allies’ defeat of Germany and Japan made possible the imposition of extensive measures of accountability. The terms of surrender for both States laid out a series of principles, which included democratization, disarmament, justice for war criminals, as well as economic reforms and reparations.9 Taken as a whole, these 6. Andre Nollkaemper, Introduction, in SYSTEM CRIMINALITY IN INTERNATIONAL LAW, 1 (Andre Nollkaemper and Harmen van der Wilt, eds. 2009) [hereinafter SYSTEM CRIMINALITY]. 7. Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ¶¶ 27-40, U.N. Doc A/HRC/S-17/2/Add.1 (Nov. 23, 2011); Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, U.N. Doc A/HRC/30/48 (Aug. 13, 2015). 8. Pablo de Greiff, Introduction, in TRANSITIONAL JUSTICE AND DEVELOPMENT: MAKING CONNECTIONS, 1 (Pablo de Greiff and Roger Duthie, eds. 2009). 9. Protocol of the Proceedings of the Berlin (Potsdam) Conference, Aug. 2, 1945, 3 Bevans 1207 [hereinafter Potsdam Protocol], http://avalon.law.yale.edu/20th_century/decade 452 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 initiatives may be understood as a comprehensive approach to accountability for the unprecedented scale of destruction and mass crimes perpetrated by the two vanquished States. Prosecution of individuals for international crimes, while innovative, was only one component of accountability. The Allies imposed democratization, demilitarization, elimination of armaments industries and reparations to prevent Germany and Japan from regenerating politically or economically as threats to world peace. These measures aimed fundamentally to disrupt and refashion the structural foundations of State policies that produced the war to prevent another one. They also signaled important normative commitments of the emerging international system: unequivocal condemnation and repudiation of the German and Japanese State ideologies that championed the war. There are two aspects to the international accountability the Allies imposed on Germany and Japan that have escaped the current international justice discourse: (1) measures that conveyed normative culpability of States that perpetrated atrocities and (2) the remedial consequences of this judgment. The victors were not content merely to have their enemies pay for their losses—the what of the war—but they also sought to resolve the underlying factors that produced the violence—the how and why of State criminality. Eradicating the structural contributors to State criminality was linked to international opprobrium of the Nazi regime, of which criminal accountability was an extension, not a substitute. In the intervening years, although accountability has become the rallying cry for the international justice movement, this discourse does not encompass the full measures of State legal accountability the Allies imposed, but has focused exclusively on individual criminal accountability for such bloodshed. There is a value to naming States culpable for their role in mass violence which we have lost. Acts which the international community recognizes as international crimes—genocide, crimes against humanity, and war crimes—are elevated as such because of their gravity. By their nature, when perpetrated by State actors, these crimes are committed in furtherance of State policy. A moral case can be made for finding such States legally culpable for such acts. Doing so inscribes moral condemnation and repudiation of offending State polices. It also lays a legal foundation for appropriate remedies 17.asp. In the case of Germany, the Allies also required the dissolution of all Nazi institutions and influences. 2016] TJ AND STATE ACCOUNTABILITY 453 against the State; remedies that address the what, how, and why of State criminality. Without State culpability, we have effective State impunity. While perhaps one day Syrian President Bashar al-Assad might stand trial in The Hague, there is no mechanism to ensure that the Syrian State will fulfill its legal duties to provide reparations to all victims, institute democratic reforms, rebalance political power, and other undertake other initiatives to address the structural foundations of the State that enabled it to slaughter its residents. If part of the rationale for individual accountability is that no one should be able to commit egregious international harms without consequence, why do we tolerate a different standard for States? It is curious that international criminal law has assumed the moral apex of international condemnation for mass atrocities to the exclusion of punishing States for the same conduct. How has this come about and what are the consequences of this approach? The first and most obvious roadblock to punishing States for their role in atrocities is that, despite efforts toward codification, State crimes do not exist in international positive law.10 Nevertheless, international law does establish legal consequences for State perpetration of acts that constitute international crimes through the law of state responsibility. The law of state responsibility involves a legal determination of a breach of international obligations attributable to a State and the legal consequences of such a breach.11 While States may not as a formal matter “commit crimes,” they may be legally responsible for acts for which individuals also may be held legally responsible as international crimes. The twin types of legal responsibility—individual and State—for the same underlying act is a concept referred to as “dual responsibility.”12 This lack of positive law for State crimes is not a conceptual roadblock for State accountability since international law already establishes principles of 10. Positive law is a “uniform order of social norms.” Frauke Lachenmann, Legal Positivism, in THE MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (R. Wolfrum ed., 2011). As an “expression of basic social laws in the development of society,” positive law prescribes the conduct of “legal persons.” Alexander Orakhelashvili, Natural Law and Justice, THE MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (R. Wolfrum ed., 2007). 11. SYSTEM CRIMINALITY, supra note 6, at 23; Jutta Brunée, International Legal Accountability through the Lens of the Law of State Responsibility, 36 NETH. Y.B. INT’L. L. 3, 21 (2005). 12. Systemic Effects of International Responsibility, supra note 2, at 337. While states and individuals may each bear legal responsibility, pursuit of one form of responsibility does not automatically trigger pursuit of the other. 454 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 legal responsibility of States for their breaches. Nevertheless, State sovereignty and the absence of a positive law of State crimes pose challenges to creating processes of State accountability for system criminality. State responsibility for acts that are also international crimes is an available tool through which international acknowledgment of State wrongdoing can be achieved. The lack of codification of State crimes is not an insurmountable barrier to establishing a process of functional State culpability. As a formal matter, the nature of State responsibility is not criminal and therefore the legal inscription of culpability cannot attach to State responsibility for acts that are also international crimes. Nevertheless, legal formalism will not mask the normative judgment that State responsibility will convey. A finding of State responsibility for acts that constitute genocide or crimes against humanity effectively does the normative work that a formal finding of criminal culpability achieves, which may explain, in part, why States have not advanced its use. The material consequences of State responsibility open the possibility to develop a more robust reparations practice. State responsibility triggers the duty of the State to repair the injury caused by the breach. It is in this area that the Allies’ terms of surrender should be understood as examples of the nature and extent of measures culpable States should assume as a legal consequence of State criminality: democratization, economic restructuring, institutional reform, disarmament, etc.13 To prevent recurrence of the violence, the structural contributors to state criminality should be redressed under the rubric of State reparations. The legal tools exist in international law to implement State responsibility for international crimes. Yet State responsibility for mass violence has not captured the discourse of international justice. That pride of place belongs to individual criminal responsibility. Birthed with the Nuremberg Principles in the aftermath of the Second World War, “anti-impunity” and individual “accountability” for atrocity crimes have been the rallying cries of the international justice movement. States are called upon to fulfill their duties to execute or facilitate individual criminal justice, but the international discourse of accountability has not made State culpability for mass violence a separate target of legal action. In fact, the discursive use of 13. See Potsdam Protocol, supra note 9. 2016] TJ AND STATE ACCOUNTABILITY 455 accountability is somewhat at odds with the law of State responsibility and injects a degree of confusion when considering State criminality.14 Additionally, Gabriella Blum argues that since the interventions by the Allies in Germany and Japan, the trend in international law has been to move away from punishing States for their bad acts and attributes this to an international preference for prevention rather than punishment.15 This Article examines the lack of interest in State culpability from a different perspective and argues that the elision of State wrongdoing from the conceptualization of legal accountability for international crimes helps to explain the neglect of State criminality. Thus, a second, and less obvious, roadblock to addressing State culpability for international crimes is transitional justice. Transitional justice is the field that dominates discussions of appropriate responses to mass violence. Transitional justice as a field has absorbed the normative, liberal,16 premise of the Nuremberg Principles, that individual criminal accountability is necessary to condemn individual 14. Legal responsibility is a narrow concept, while legal accountability is broader and refers to the process by which states are determined to be legally responsible for international crimes and the consequences they should bear. As noted by Jutta Brunée, there is no fixed meaning of “accountability” in international law, but it generally refers broadly to the processes of determining whether an actor has met agreed standards of conduct and if there is a breach of such standards, the consequences that the responsible party should bear. Brunée, supra note 10, at 21-22, 24. For purposes of this discussion, the term “international legal accountability” is adopted to refer a broader range of processes for determining the legal wrongfulness of state behavior and appropriate consequences than the law of state responsibility. 15. Gabriella Blum, The Crime and Punishment of States, 38 YALE J. INT’L L. 57 (2013). 16. For purposes of this discussion, the concept of liberalism is located in legal philosophy and political theory in that it refers to a basic legal and political commitment to individual rights and freedoms and a system of government designed to curtail abuse of state power on individual rights. Of particular relevance is that one of the core individual rights in a liberal system include the individual right to be free from arbitrary arrest and punishment. Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Criminal Justice, 26 MICH. J. INT’L L. 1013 (2005). A key principle of liberal legal systems is that individuals may be punished only for individual acts and therefore collective or un- individuated attribution of responsibility is antithetical to respect for individual autonomy and freedom. Liberal assignation of criminal guilt for mass atrocities is perhaps most famously captured by German philosopher Karl Jaspers. Writing in the aftermath of the Second World War, Jaspers reasoned that the German ‘people’ could not be legally guilty for the acts of German leaders, but had moral or metaphysical guilt. KARL JASPERS, THE QUESTION OF GERMAN GUILT 32, 51-52, 73-74 (E.B. Ashton Trans., 1947). Thus in this discussion “liberal” conceptions of criminality refer to attribution of legal responsibility to individuals for violating legal norms. 456 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 leaders and spares the people from collective guilt. Debates about accountability endogenous to transitional justice focus on the priority that should be given to criminal trials.17 However, these debates are bound together with debates about the role of law and the extent to which legalism18 and legal solutions should guide the field. Legal accountability is understood to mean individual criminal responsibility and State responsibility disappears from transitional justice theorizations of legal justice. A third factor that contributes to this blinkered approach to international accountability for mass violence is the law itself. The modern international legal system developed to disaggregate consideration of individuals and States as culpable actors in international law. The conventional understanding of how international individual criminal responsibility became the central feature of international justice draws a straight line from the Nuremberg Principles and trials to the ICC. In other words, liberal theories of retributive justice and deterrence captured the conceptions of international justice. Yet taking into account the full range of responses of the Allies to Germany and Japan and the broader developments of international law that emerged from the war, we see that other conceptions of accountability and legal responsibility for mass atrocities were circulating and taking shape in positive law and international institutions. The Allies not only established the Nuremberg tribunal, but also exacted war reparations from Germany, and instituted sweeping reforms of its State institutions. In the immediate postwar period, nations invested heavily in developing a new international legal system that built on normative aspects of this response. Yet nations undertook efforts to codify and develop the international legal framework as separate international branches of law: international criminal law, international human rights law, and 17. Naomi Roht-Arriaza, Editorial Note, 7 INT’L J. TRANS. JUST. 383, 388-90 (2013); Jaime Malamud-Goti, Trying Violators of Human Rights: The Dilemma of Transitional Democratic Governments, in STATE CRIMES: PUNISHMENT OR PARDON 71-88 (1988). 18. Legalism is a key concept associated with liberal thought. As articulated by Judith Shklar in her defining work on the topic, legalism is “the ethical attitude that hold moral conduct to be a matter of rule following, and moral relationship to consist of duties and rights determined by rules.” JUDITH N. SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS 1 (1986). Shklar argued that legalism defines a system of thought, a political ideology, which understands law as apart from the social world in which it operates. Id. at 2. Within the field of transitional justice, scholars have questioned the prevalence of legalism as manifest by a preference for legal (as opposed to non-legal) solutions to the legacies of mass violence. See infra Part II. 2016] TJ AND STATE ACCOUNTABILITY 457 the law of international State responsibility. These branches have assumed varying levels of legal and institutional development. More importantly for purposes of this discussion, these branches are not integrated conceptually into a theory and discourse of international justice. One result is that it is the Nuremberg legacy and not the measures of State accountability that has become entrenched in transitional justice; State measures of legal responsibility lie outside the ambit of international justice. Without a discourse that includes State culpability under the banner of international justice and accountability, transitional justice cedes important conceptual and practical ground in addressing atrocity crimes. A justice discourse that included calls to address State wrongdoing has legal purchase. While positive law does not admit of State crimes, nonetheless legal recourse against States is possible through the doctrine of State responsibility. Remedies for State breaches could extend to the robust measures imposed on Germany and Japan by the Allies after World War II, including reparations to victims for the harms caused by State, loss of territory, international administration, or other reforms of State institutions. Structural reforms of State institutions are familiar as part of peace negotiations. However, pursuing such measures as legal obligations pursues important normative as well as material goals. Linked with an international determination of breach of obligations erga omnes, legal remedies would convey culpability and blameworthiness, central values of individual criminal responsibility. It is also possible that structural reforms may more muscular if legally grounded as remedies for justice measures than if such efforts were pursued as peacekeeping or policy options. However, to change its conceptualization of accountability, transitional justice needs to overcome its mistakenly liberal objections to State culpability and promote a new politics of international accountability. International law does not run afoul of liberal tenants by treating States as singular entities of political governance and attributing legal responsibility to them for breaches of international rules. Attribution of wrongfulness to a State is a political, not legal, resistance. Change may begin with new conceptual clarity that understands State culpability not as collective punishment but as part of a process of holding the State accountable for its involvement in international crimes as an artificial, politically constructed entity distinct from “the people.” This perspective would allow an international justice discourse and 458 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 practice to emerge, recognizing that individual and State responsibility co-exist comfortably and may be pursued, as appropriate, as a holistic and legitimate responses to mass atrocities. At the outset, it is important to clarify the parameters of this project. This analysis concentrates on international legal processes of accountability and determinations of legal responsibility for atrocity crimes. While domestic legal systems are also capable of—and many have been—implementing justice for international crimes and addressing the role of the State in perpetrating atrocities, this Article limits its examination to the international system. The content and circulation within domestic contexts of concepts of international legal accountability and responsibility are indeed critical to a comprehensive understanding of the global implementation of justice. However, the primary goal of this Article is narrower: to identify how conceptions of international accountability have developed to exclude State culpability and some of the effects of this theorization. Similarly, while States are not the only entities that perpetrate international crimes, this analysis does not consider non-State actors or organizations as targets of legal responsibility for their wrongdoing. The positive law regarding non-State actors continues to evolve, but the differential treatment of non-State and State entities under international law means that a separate analysis of accountability for non-State actors is required. Finally, this piece does not advance a definitive prescription for how international legal responsibility should be implemented. A thorough treatment of that question lies beyond the scope of this Article. However, by way of example, this Article illustrates one existing mechanism to pursue international State legal accountability: the UN Security Council. The first Section of this Article reviews the relevant legal developments of international norms and mechanisms from the end of the Second World War to the present. This illustrates the conceptions of accountability circulating in international law at the time, as well as how these branches developed with distinct trajectories, legal instruments, and enforcement mechanisms. The second Section turns to an examination of how accountability is conceptualized in transitional justice and reveals the ways in which transitional justice submerges legal accountability of the State. The third Section considers some of the effects of the status quo. The recent examples of Security Council referrals to the ICC illustrate how the political organ of international accountability, the best current option to 2016] TJ AND STATE ACCOUNTABILITY 459 enforce State responsibility, performs the transitional justice meme of Nuremberg by insisting on individual criminal accountability while ignoring State criminality. This Section identifies conceptual challenges to transitional justice that illuminate the vise grip of liberalism on the field and a new transitional justice politics is imagined. The final Section concludes by calling for transitional justice to marshal the full international law commitment to accountability. Attending to distinct roles and responsibilities the individual and State in the commission of atrocities furthers the values of international rule of law and activates remedies commensurate with the challenge to ensure a sustainable peace. I. THE POSTWAR DEVELOPMENT OF INTERNATIONAL BRANCHES REGULATING ACCOUNTABILITY FOR MASS CRIMES: INTERNATIONAL CRIMINAL LAW, STATE RESPONSIBILITY, AND HUMAN RIGHTS The response of the Allies to atrocities committed during the Second World War spawned two new branches of law: international human rights law and international criminal law. The Allies also relied on longstanding interstate obligations to exact war reparations from Germany.19 A brief review of these developments reminds us of the exceptional legal growth during this period. It also reminds us that the legal foundations for a robust, holistic approach to dual responsibility exist. We can consider the Potsdam Protocol,20 the instrument laying out the principles that would control the Allies’ transition of Germany and Japan from enemies to allies, as a conceptual blueprint for what pursuit of dual accountability might look like. With this in mind, we see that the postwar developments of international law differentially advanced the document’s commitment to accountability for individuals and States. If the Nuremberg prosecutions served as the prototype for international criminal trials, the reparations provisions along with the legal, economic, and political reform mandated by the Potsdam Protocol offered a model for legal consequences to be imposed upon States that violate jus cogens norms to commit mass 19. Ariel Colonomos & Andrea Armstrong, German Reparations to the Jews after World War II: A Turning Point in the History of Reparations, in THE HANDBOOK OF REPARATIONS 390-419 (Pablo de Greiff ed., 2006). 20. Potsdam Protocol, supra note 9. 460 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 atrocities.21 International criminal law has assumed an advanced form with establishment of a permanent criminal court. However, normative development of the law of State responsibility stalled, and State responsibility for human rights violations developed as a new branch of international law with its own treaties and enforcement mechanisms. The end result is that we have a fully articulated system of international criminal law, while there is no parallel system to enforce State responsibility for the same violations. The human rights system offers a partial response but is not conceived of normatively or structurally as a legal redress mechanism for system criminality. Such a system requires the ability to tie legal responsibility to States with commensurate remedial action. The provisions of the Potsdam Protocol, while not conceived as measures of reparation for state responsibility by its drafters,22 fit within this legal category. These initiatives offer inspiration for the type of systemic change that could be implemented as part of legal accountability. To understand the conceptual distance that must be traveled to come to this point, it is necessary to understand how the seeds of the international justice movement developed wholly apart from attention to system criminality and the problem of dual responsibility for international crimes. This Section reviews the development of international criminal law and enforcement mechanisms from Nuremberg to the establishment of a permanent International Criminal Court. It then examines the evolution of the law of State responsibility and human rights over the same period. We see how these latter two branches took shape such that they house the legal potential for State accountability for atrocity crimes, but are unable to fully realize the Potsdam model. All three legal branches of international law developed centrifugally in relation to mass violence 21. See Potsdam Protocol, supra note 9, §§ (a)(II)(A)-(B). 22. The first mention of structural, legal, and/or policy reforms as a legal remedy for state violations, known as a guarantee of non-recurrence or non-repetition, within the international human rights system was in a 1993 report. Theo van Boven, (U.N. Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental), Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. E/CN.4/Sub.2/1993/8, ¶¶ 47, 48, 55, section IX, principle 11; Pablo de Greiff, (Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence), Report to the Human Rights Council, ¶ 15, n.4, U.N. Doc. A/HRC/30/42, (Sept. 7, 2015) [hereinafter de Greiff Report]. 2016] TJ AND STATE ACCOUNTABILITY 461 so that normatively and institutionally they work against a holistic response to global horrors that call out for our full attention. A. International Criminal Law After a period of internal disagreement, at the Potsdam Conference in July 1945, the Allies agreed to conduct criminal prosecutions of major war criminals. Two years earlier, the Allies had established a commission to collect evidence of war crimes.23 Initially, the British favored the arrest and immediate executions of a small group of top identified war criminals.24 The contrary views of US Secretary of War Henry Stimson eventually carried the day.25 Justice Robert H. Jackson, the prosecutor at Nuremberg, argued that rule of law and adherence to liberal accountability were necessary to deal with the Nazi leaders. He reasoned that retribution for large-scale suffering required piercing State sovereignty to reach the individuals responsible for ordering war crimes: “The idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons.... [I]t is quite intolerable to let such a legalism become the basis of personal immunity.”26 A month later, the Allies concluded the Nuremberg Charter in what commentators have heralded as a critical pivot point in international law.27 These documents created an international tribunal 23. M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent Criminal Court, 10 HARV. HUM. RTS. J. 11, 22-23 (1997) [hereinafter From Versailles to Rwanda]. 24. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 29 (1992); GEOFFREY ROBERTSON, CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE 306-09 (4th ed. 2013). 25. Henry L. Stimson, The Nuremberg Trial: Landmark in Law, 25 FOREIGN AFF. 179 (1947). He argued that prosecutions rather than a night of the long knives would better reflect on Allies as civilized nations in comparison to the barbarism of the Nazi regime. U.S. Secretary of State Hull supported Stimson in this regard and argued that establishing the truth of Nazi crimes before a world audience via a legal process would ensure the Germans could not later evade the moral and political implications of the verdict as they had with Versailles treaty. ROBERTSON, supra note 24, at 307-08. The German government later had claimed that the admission of German guilt in the treaty had been exacted under duress. Id. at 354. 26. Justice Robert H. Jackson, Opening Speech at the Nuremberg Tribunal, THE JACKSON CENTER (Nov. 21, 1945), http://www.roberthjackson.org/the-man/speeches- articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international- military-tribunal/ [hereinafter Opening Speech]; see also Benjamin B. Ferencz, Tribute to Nuremberg Prosecutor Jackson, 16 PACE INT’L L. REV. 365, 365-69 (2004). 27. M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW 66-67, 112-13 (2d ed. 2013) [hereinafter INTRODUCTION TO INTERNATIONAL CRIMINAL LAW]. 462 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 to prosecute the Nazi architects of mass destruction of Jews and other targets of persecution. The unprecedented scale and nature of Nazi atrocities prompted the powerful States to create an exception to the Westphalian notion of international law as a system of interstate regulation. The sovereign immunity that had shielded individuals from direct sanction yielded to the demands that those responsible be punished. The Nuremberg judgment, reached a little over a year later, solidified the principle that individuals have duties that “transcend the national obligations of obedience imposed by the individual state” for which they may be prosecuted notwithstanding orders of superiors.28 At the same time, the Allies prosecuted members of the Japanese High Command in trials that lasted from May 1946 to November 1948,29 and national trials of war criminals that took place in Allied countries in the immediate aftermath of the Second World War signaled a new international commitment to justice. The newly created UN General Assembly embraced this liberal concept of international justice. In 1946, it unanimously adopted a resolution affirming the principles of the Nuremberg judgment as international law principles thereby essentially ratifying the existence of international criminal law30 and moved toward codifying international crimes and creating a mechanism to enforce them. As part of the UN’s broader efforts to develop an international legal system, the UN General Assembly created the International Law Commission (“ILC” or “Commission”), a body of experts charged with promoting the development and codification of international law.31 At the request of the General Assembly in 1947, the ILC undertook to formulate the Nuremberg Principles and prepare a draft code of international offenses.32 The ILC prepared a first text of the Draft Code of Offenses Against the Peace and Security of Mankind 28. Judicial Decisions, International Military Tribunal (Nuremburg), Judgment and Sentences, 41 AM. J. INT’L L. 172, 221 (1947). 29. ROBERTSON, supra note 24, at 365; see From Versailles to Rwanda, supra note 24, at 31-37. 30. G.A. Res. 95 (I), Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal, U.N. Doc. A/RES/1/95 (Dec. 11, 1946); G.A. Res. 177 (II) (Nov. 21, 1947).. 31. G.A. Res. 174 (II) (Nov. 21, 1947). 32. G.A. Res. 177 (II), supra note 30. The UN General Assembly called on the ILC predecessor organization, the Committee on the Codification of International Law, to formulate the Nuremberg Principles and prepare a draft code. The Committee began this work, which the ILC inherited and completed. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 579. 2016] TJ AND STATE ACCOUNTABILITY 463 (“Draft Code”) in 1951, followed by a revised version in 1954.33 Concurrently, formulation of a draft statute for establishing a permanent criminal court was delegated to another special rapporteur, who argued that the task of developing a substantive criminal code and a statute for an international criminal code should complement one another.34 Yet these two projects remained purposefully separated.35 The General Assembly constituted a Special Committee to prepare a draft statute for a permanent criminal court (“Draft Statute”).36 However, the completion of both the Draft Code and Draft Statute was ultimately tabled until the UN had arrived at an agreed definition of the crime of aggression.37 The Cold War largely froze further development and enforcement of international criminal law.38 Certainly there continued to be atrocities committed in international armed conflicts—the 33. Report of the International Law Commission to the General Assembly, U.N. GAOR Supp. No. 9 at 133-37, U.N. Doc. A/1858 (1951), reprinted in 2 Y.B. Int’l L. Comm’n 123, U.N. Doc. A/C.4/48; see also LYAL S. SUNGA, THE EMERGING SYSTEM OF INTERNATIONAL CRIMINAL LAW: DEVELOPMENTS IN CODIFICATION AND IMPLEMENTATION 8-10 (1997). The title of the Draft Code was changed to the “Draft Code of Crimes Against the Peace and Security of Mankind” in 1988. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 579. Note the ILC only drafted principles but did not discuss the evolution of international criminal law principles from positive law. See Ruti Teitel, Transitional Justice: Postwar Legacies, 27 CARDOZO L. REV. 1615, 1619 n.2 (2006) (“The dilemma raised at Nuremberg relating to the rule of law catalyzed a debate on the nature of international norms and the extent to which these could be considered consistent with positive law. Ultimately, Nuremberg would imply a move away from support of positivist principles of interpretation and towards an endorsement of natural law principles.”); see also Quincy Wright, Legal Positivism and the Nuremberg Judgment, 42 AM. J. OF INT’L L. 405, 406-14 (1948). 34. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 580. 35. Report of the Committee on International Criminal Court Jurisdiction, U.N. Doc. A/2135 (1952). Bassiouni attributes the separate tracks of developing a code and a court to the reluctance of powerful states to establish an international criminal justice system: “the lack of synchronization was not entirely fortuitous: it was the result of a political will to delay the establishment of an international criminal court, because that was a time when the world was sharply divided and frequently at risk of war.” INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 583. 36. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 581. 37. M. CHERIF BASSIOUNI, A DRAFT INTERNATIONAL CRIMINAL CODE AND DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL TRIBUNAL 8 (2d rev. & updated ed., 1987); SUNGA, supra note 33, at 15, 40-45. 38. After the World War II criminal tribunals, there were no internationally-sponsored criminal trials until the UN established the ad hoc criminal tribunal for the former Yugoslavia. However, there were a handful of national criminal trials against perpetrators of crimes committed during the Second World War, notably the Israeli prosecution of Adolf Eichmann. HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (2006); see also From Versailles to Rwanda, supra note 23, at 38-39. 464 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 unsuccessful war of secession in Biafra, the ultimately successful but bloody war of independence in Bangladesh, and the My Lai massacre by American forces in South Vietnam. Yet the geopolitical impasse of the Communist bloc and the West assured that no international consensus could be reached that would rise above ideology to punish those responsible for mass atrocities.39 The fall of the Berlin Wall ushered in a new era in international criminal justice. Many heralded the post-Cold War realignment as bringing democracy’s freedom and prosperity to former Communist states.40 The breakup of Yugoslavia loosened the restraints of Tito’s communist State, which the leader had secured through an ideology of “Brotherhood and Unity.”41 The rise of nationalism across the ethnically mixed Balkan republics sparked the violent breakup of the Yugoslav federation. From 1991-1995, fighting in Croatia and Bosnia took the form of violent ethnic cleansing of civilian populations, the epitome of which was Bosnian Serb forces overrunning the UN- protected hamlet of Srebrenica and slaughtering 8,000 Bosniak men and boys;42 literally committing genocide under the nose of United Nations peacekeeping forces. Aided by the 24-hour news cycle, the Balkan conflict unfolded in the full gaze of the international community. Diplomats and world leaders took notice and action. In the midst of the fighting, in May 1993, the UN Security Council acted under its Chapter VII powers to establish an international criminal tribunal to prosecute perpetrators of war crimes, crimes against humanity, and genocide.43 International criminal justice continued to gain momentum. In November 1994, the Security Council created another criminal tribunal, this time to prosecute perpetrators of genocide and other international crimes committed in Rwanda.44 Unleashed after the plane carrying Hutu President Juvénal Habyarimana was shot down on April 6th, organized 39. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 565-66. 40. See generally FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992). 41. Tone Bringa, The Peaceful Death of Tito and the Violent End of Yugoslavia, in DEATH OF THE FATHER: AN ANTHROPOLOGY OF THE END IN POLITICAL AUTHORITY 148-200 (John Borneman ed., 2004). 42. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, 2007 I.C.J 43, 83-84, 155-56 (Feb. 26)). 43. S.C. Res. 827, (May 25, 1993). 44. S.C. Res. 955, (Nov. 8, 1994). 2016] TJ AND STATE ACCOUNTABILITY 465 ethnic militias called the Interahamwe rampaged throughout the Rwandan capital and countryside, targeting ethnic Tutsis for gruesome killing.45 In the end, Interahamwe forces killed approximately 800,000 Tutsis over 100 days; the bloodshed halted by the Tutsi rebel invasion in July 1994.46 With UN involvement, the conflicts in Kosovo, East Timor, and Sierra Leone were followed by the establishment of specialized criminal tribunals to prosecute perpetrators of international crimes.47 This trend toward international criminal accountability as a component of post-conflict peace reached a new level in 2002, when the world’s first permanent international criminal court began operating. Its creation owes a debt to the postwar efforts at the UN to codify international criminal law. The General Assembly considered creating a draft code of international crimes again in 1981.48 45. Genocide in Rwanda, UNITED HUMAN RIGHTS COUNCIL, http://www.unitedhumanrights.org/genocide/genocide_in_rwanda.htm (last visited Feb. 1, 2016). 46. Id. 47. In 2000, the UN Transitional Administration in Timor-Leste (“UNTAET”) passed a law that established a Serious Crimes Panel within the new country’s national court system. On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses, UNTAET/REG/2000/15 (June 6, 2000); see also INT’L CTR. FOR TRANSITIONAL JUSTICE, THE SERIOUS CRIMES PROCESS IN TIMOR-LESTE: IN RETROSPECT 1, 12-14 (2006). That same year, the UN Interim Administration in Kosovo (“UNMIK”) passed Regulation 64, which created international panels to prosecute international crimes within the Kosovar court system. On Assignment of International Judges/Prosecutors and/or Change of Venue, UNMIK/REG/2000/64 (Dec. 15, 2000). In 2003, three different courts prosecuting international crimes were established. First, a special agreement between Sierra Leone and the United Nations established the Special Court for Sierra Leone. The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915 (Oct. 4, 2000). Second, the Extraordinary Chambers in the Courts of Cambodia was founded by an agreement between the United Nations and Cambodia to prosecute perpetrators of crimes committed during the Khmer Rouge regime of 1975-1979. G.A. Res. 57/228 (May 22, 2003). Third, the Bosnian War Crimes Chamber was established by the Office of the High Representative in Bosnia-Herzegovina as a division of mixed international and national judges and prosecutors within the national Bosnian legal system. See Press Release, Security Council, Security Council Briefed on Establishment of War Crimes Chamber within State Court of Bosnia and Herzegovina, U.N. Press Release SC/7888 (Oct. 8, 2003). Most recently, in 2007, a UN Security Council Resolution established the Special Tribunal for Lebanon. S.C. Res. 1757 (May 30, 2007). 48. In 1981, the General Assembly passed a resolution requesting the ILC to resume its prior work on the Draft Code. SUNGA, supra note 33, at 9; see also G.A. Res. 36/106 (Dec. 10, 1981). By this time, a definition for the “crime of aggression” had been adopted (in 1974), removing the reason for tabling progress on the Draft Code. SUNGA, supra note 33, at 79-80. Additionally, efforts by a number of governments and NGOs had forced the issue back onto the General Assembly’s agenda. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 582. 466 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 However, revival of international criminal accountability really gained momentum in 1991 when, against the backdrop of fighting in Croatia, the ILC generated an official version of a new Draft Code.49 A year later, the General Assembly requested the ILC to prepare a draft statute for a permanent criminal court.50 Thus the drafting of a code of international crimes and a mechanism for their enforcement proceeded on separate tracks.51 Preparations for a permanent court got underway in earnest in 1994, when the General Assembly constituted an ad hoc committee to develop a process to establish a court based on the ILC’s Draft Statute.52 Over the next four years, State representatives negotiated a treaty to establish a permanent court,53 the final text of which, the 49. In 1991, the ILC adopted a comprehensive catalog of crimes, the scope of which far surpassed that of the 1954 draft code. SUNGA, supra note 33, at 11. The Draft Code comprises the classic Nuremberg and Tokyo Charter violations (crimes against peace, war crimes, and crimes against humanity), as well as the crimes of genocide and intervention. Draft Code of Crimes against the Peace and Security of Mankind, 1 Y.B. Int’l L. Comm’n 186, U.N. Doc. A/CN.4/L.459/Add. 1 (Jul. 5, 1991). 50. In 1989, efforts at codification accelerated after the General Assembly considered a proposal by Trinidad and Tobago to establish an international court to prosecute drug traffickers and other international crimes. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 585; see also SUNGA, supra note 33, at 15. 51. This had the somewhat anomalous effect that the work on the draft statute came to fruition with the creation of the Rome Statute in 1998, while work on the Draft Code continued on a different track, and the final draft that the ILC produced in 1996 contained definitions of crimes that differ from those in the Rome Statute. See John Allain & John R. W.D. Jones, A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, 8 EUR. J. OF INT’L L. 100 (1997). The Special Rapporteur leading the drafting put forward a severely truncated version, eliminating the following categories of violations from the Code’s coverage: threat of aggression; intervention; colonial domination and other forms of alien domination; apartheid; mercenary activity; terrorism; drug trafficking; and willful and severe damage to the environment. This left only the crime of aggression, genocide and war crimes, and added crimes against the United Nations and associated personnel and crimes against humanity, and incorporated specific reference to rape in provisions prohibiting crimes against humanity and war crimes. See Draft Code of Crimes against the Peace and Security of Mankind: Titles and Texts of Draft Articles, U.N. Doc. A/CN.4/L.522 of 31 (May 1996); see also Int’l Law Comm’n, Draft Rep. on the Work of its Fourty-Eighth Session, U.N. Doc. A/CN.4/L.527/Add. 10 (July 16, 1996); SUNGA, supra note 33, at 13-14. 52. U.N. General Assembly, Sixth Comm., Establishment of an International Criminal Court: Draft Resolution, U.N. Doc. A/C.6/49/L.24 (Nov. 23, 1994). 53. Following the work of the Ad Hoc Committee, the General Assembly set up the Preparatory Committee on the Establishment of an International Criminal Court (“PrepCom”), which would meet twice in 1996 and prepare “consolidated texts” for a draft international criminal court statute. U.N. GAOR, 50th Sess., 87th plen. mtg., U.N. Doc. A/RES/50/46 ¶ 2 (Dec. 11, 1995); INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 589. 2016] TJ AND STATE ACCOUNTABILITY 467 Statute of the International Criminal Court (“ICC”), was adopted in Rome in 1998 on a vote of 120-7 (with 21 abstentions).54 Four years later, with the requisite 60 State ratifications, the treaty entered into force. UN officials, State leaders, representatives of NGOs, and international commentators hailed the ICC as fulfilling the unstated promise symbolized by the Nuremberg and Tokyo tribunals almost 50 years prior:55 as part of its commitment to value human dignity, the rule of law, and peace, the international community would confront mass atrocities through individual criminal responsibility. Equipped with a standing international court with jurisdiction over the most serious crimes, “never again” would not be a trope but a serious commitment to guide international efforts to end impunity for those who waged large-scale, illegal, and brutal campaigns. The power of the idea of international criminal justice is manifest in its fruition. With the ICC, international criminal responsibility is now a permanent feature of the international legal order. The legal form this takes is the criminal trial. Like domestic criminal law, it is quintessentially a liberal exercise in retributive justice. However, as conceived in international law by the Allies who initiated criminal trials, international criminal responsibility is further justified by liberalism’s aversion to collective punishment. German philosopher Karl Jaspers theorized this idea as a categorical rejection of the possibility that the German “people” could be legally guilty for the acts of German leaders.56 The more recent propulsion of international criminal sanctions in response to mass violence has been PrepCom published its final report leading up to the plenipotentiary conference in Italy in 1998. Id. at 591-94. 54. About the Court, INTERNATIONAL CRIMINAL COURT, https://www.icc- cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx (last visited Feb. 1, 2016). 55. Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 PACE INT’L L. REV. 203 (1998); The International Criminal Court: 2007-2008 Fact Sheet One, AMNESTY INTERNATIONAL USA, http://www.amnestyusa.org/pdfs/IJA_Factsheet_ 1_International_Criminal_Court.pdf (last visited Feb. 1, 2016) (“For more than half a century since the Nuremberg and Tokyo trials, states have largely failed to bring to justice those responsible for genocide, crimes against humanity and war crimes. With the creation of the International Criminal Court (ICC), the world has begun to fulfill the post-World War II promise of ‘never again.’”). 56. KARL JASPERS, THE QUESTION OF GERMAN GUILT 32, 51-52, 73-74 (E.B. Ashton Trans., 1947). 468 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 aided by scholars who similarly argue that prosecutions of individual leaders are a vital tool to avoid collective guilt.57 Individual criminal responsibility has become the form of legal accountability for atrocities meted out by the international system. Thus the idea of State legal accountability for atrocities is implicitly excluded from the project of international justice. Yet at the same time that the Nuremberg Principles are being formulated, States are undertaking projects that understand States are actors capable of committing acts of grave harm and which seek to establish international regulations that will hold them accountable for such transgressions. These projects were not integrated into the conceptualization or institutionalization of international criminal law but demonstrate the doctrinal and institutional firewall of dual responsibility. B. State Responsibility and Human Rights While international criminal responsibility gains legitimacy from its liberal foundations, longstanding international principles of State responsibility establish State legal accountability for their breaches of international obligations without being discredited as illiberal. Partly, this is due to conceptions of sovereignty under international law which treat states as singular actors and not “the people;”58 also, the rejection of State crimes in positive law means that States may violate legal obligations but such violations are not formally criminal. Thus it is possible to speak of State legal violations and breaches but not of State legal guilt and culpability. Yet, there is an element of legal fiction to this distinction. Postwar developments to codify international law, in particular in the areas of State responsibility and human rights, indicate that preventing State atrocities and holding States legally responsible for such abuses were central to efforts establishing this new world order. Furthermore, the reparations measures imposed against the defeated 57. For a discussion of the argument that international trials avoid collective guilt see Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 HUM. RTS. Q. 573 (2002); see also Antonio Cassese, Reflections on International Criminal Justice, 61 MOD. L. REV. 1, 6 (1998); GARY JONATHAN BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 20-26 (2000). 58. JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 141-42 (8th ed. 2012). 2016] TJ AND STATE ACCOUNTABILITY 469 Germany certainly conveyed moral condemnation and the normative optics of the interventions blurred the traditional line between civil and penal sanctions. As remedies for State breaches, these measures included monetary payments and restitution.59 The political goals of the Allied occupation of postwar Germany were to refashion the defeated enemy into a pacific, democratic State.60 The principles of the Potsdam Protocol should be understood as defining the type of initiatives that can be pursued as legal measures of accountability for State criminality insofar as these are directed to prevent State repetition of the abuses. Thus the Allied response to Nazi criminality included not just international criminal liability but also aimed to realign the State institutions and reform the structures of the Nazi State that enabled its violence. The political and economic reforms of the German State outlined in the Potsdam Protocol did not become a blueprint for international law and practice as did the war crimes prosecutions of Nazi leaders. The postwar codification efforts of State responsibility and human rights developed separately from each other as well as international criminal law and did not result in a set of legal regulations or a mechanism that could address individual and State wrongdoing together. The next section outlines the rise and fall of State crimes in the effort to develop international law for a new age. It then turns to the development of the international human rights regime where State responsibility takes a particular legal form, which at best offers a partial substitute for the Potsdam Protocol model. As a result, the international legal system permits legal guilt to attach only to individuals and not to States, and largely leaves enforcement of the international law of State responsibility for mass atrocities to the human rights regime. The conceptual untethering of State guilt and legal responsibility from international justice has drained transitional justice of important tools to address mass violence in a holistic manner. Nevertheless, the legal concepts necessary to do so exist. 59. Richard M. Buxbaum, A Legal History of International Reparations, 23 BERKELEY J. INT’L L. 314, 322-24 (2005). 60. Potsdam Protocol, supra note 9, § (a)(II)(A)(3)(iv) (“The purposes of the occupation of Germany by which the Control Council shall be guided are... [t]o prepare for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life by Germany.”). 470 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 1. Codification Efforts of State Responsibility The Holocaust and other mass horrors require State policies and structures to perpetrate. How did the new international order wish to address accountability of States for such acts going forward? The establishment of the United Nations brought States into a formal collective, but one which, by design, accepted State sovereign equality as a founding principle. It thus relied on State agreement to accept regulation of its conduct except in narrow circumstances.61 Given the backdrop of World War II, it is not surprising that strengthening the international law of State responsibility was one of the earliest topics taken up by the ILC, for this would clarify how State breaches of international obligations are determined as well as the legal consequences for such conduct. Nor should it be surprising that this effort addressed responsibility for State “crimes.” However, the fact that the Commission took over 45 years to complete its work and that the final document makes no explicit mention of State crimes indicates the difficulty of achieving State consensus on this issue. Over time, consensus on this point dissipated, and in the end, the final document only indirectly acknowledges State crimes. a. Efforts to Define State Responsibility for International Crimes The ILC began its work in 1955 to prepare a draft of international law principles that would govern State responsibility, and Francisco García-Amador was appointed as the Special Rapporteur leading the effort.62 A total of six Special Rapporteurs shepherded the process, generating multiple reports (styled as reports, these documents served as proposed drafts of principles which the ILC would consider for further action), and which concluded in 2001 when the ILC adopted the draft articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles” or “Draft Articles on State Responsibility”).63 The drafting process saw substantial 61. The power to authorize military force, the ultimate exercise of coercive state action, is reserved to the UN Security Council in circumstances necessary to maintain or restore peace and security. U.N. Charter art. 39. 62. Int’l Law Comm’n, Rep. on the Work of its Seventh Session, U.N. Doc. A/CN.4/94, at 42 (1955). 63. The ILC, composed of international legal experts drawn from various segments of the international legal community, forwarded its proposals for codification to a subgroup of state representatives (the Sixth Committee of the General Assembly), which then deliberates and may reject or forward drafts to the General Assembly. In this way, ILC’s work to develop 2016] TJ AND STATE ACCOUNTABILITY 471 changes to key concepts over time, including State crimes, reflecting the evolution of available legal common ground. The Commission’s first Special Rapporteur, García-Amador, included State crimes in his reports on the subject,64 and this principle remained a live issue through decades of drafting, though subject to frequent debate. The arguments advanced by proponents and opponents of State crimes reflect divisions in thought over fundamental questions about the nature of international law as well as its utility in regulating State behavior. Throughout the drafting history, there appeared to be broad consensus that not all State breaches were of the same character; in other words, there was a difference between a merely “wrongful” State action and State offenses that were particularly egregious or “criminal.”65 Partly, this reflected a postwar acceptance of the need for international law to respond to State-sponsored violence like that unleashed by the Nazi regime. This view was also consistent with the traditional international law principle that States are responsible for reparations for any wrongful breach. This principle reflects a tort, or civil, liability model of State accountability, which includes the possibility of punitive sanctions for “wrongful” State acts as a form of reparation.66 Through subsequent years of reports and discussion, the concept of State crimes took hold and was reflected in acceptance of a bifurcation of state breaches—those that were delicts, or merely wrongful, and those that were crimes. This framework was reflected in the first draft of the instrument formally adopted by the and codify international law is ultimately controlled by states in this exercise of positive law generation. 64. See, e.g., F.V. García-Amador (Special Rapporteur on State Responsibility), First Rep. on Int’l Responsibility, ¶¶ 46-53, U.N. Doc. A/CN.4/96 (Jan. 20, 1956). 65. James Crawford, The System of International Responsibility, in THE LAW OF INTERNATIONAL RESPONSIBILITY 17, 22 (James Crawford et al. eds., 2010). 66. See, e.g., F.V. García-Amador (Special Rapporteur on State Responsibility), Sixth Rep. on Int’l Responsibility, ¶¶ 56, 145. U.N. Doc. A/CN.4/134 and Add.1 (Jan. 26, 1961) (“[B]oth in diplomatic practice and in the case-law of the claims commissions, the reparation of an injury caused to an alien individual is fairly often frankly ‘punitive’ in character. Its purpose—namely, to punish or at least reprove a State for its conduct—either explicitly or implicitly, and thereby to try to prevent a repetition of such acts in the future, is in fact the most characteristic and distinctive feature of this mode of reparation.”). In this view, accepting sanctions for egregious behavior did not necessarily introduce the municipal notion of “criminal” sanctions into international law because the purpose of sanctions was reparative rather than punitive and thus did not distort traditional conceptions of regulation of interstate relations. 472 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 Commission in 1980.67 Article 19 recognized a distinction between “delicts” and “international crimes” (exceptionally grave breaches of international law).68 Although there was agreement regarding a hierarchy of breaches, there was disagreement about how to identify which breaches constituted crimes—in particular whether all peremptory norms qualified as crimes69—as well as what should be the consequences for such breaches.70 States had categorical objections to 67. See Int’l Law Comm’n, Rep. on the Work of Its Thirty-Second Session, ¶¶ 34-48, U.N. Doc. A/35/10 (1980). 68. See id. ¶ 34, art. 19 (“International crimes and international delicts—(1) An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached. (2) An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.”). 69. See Int’l Law Comm’n Rep. on the Work of Its Twenty-Eighth Session, ¶¶ 75-122, U.N. Doc. A/31/10 (1976) (including Draft Article 19 and accompanying commentary); Marina Spinedi, International Crimes of State: The Legislative History, in INTERNATIONAL CRIMES OF STATE: A CRITICAL ANALYSIS OF THE ILC’S DRAFT ARTICLE 19, 21-22 (Joseph Weiler, Antonio Cassese & Marina Spinedi eds., 1989). In coming to his conclusion, Ago analyzed relevant provisions of the United Nations Charter, resolutions of the General Assembly, and international case law, including in particular the ruling of the ICJ in the Barcelona Traction Light and Power Company, Ltd. case. See Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Judgment, 1970 I.C.J. 3 (Feb. 5). 70. See, e.g., Roberto Ago (Special Rapporteur on State Responsibility), Second Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/233 (Apr. 20, 1970); Gaetano Arangio-Ruiz (Special Rapporteur on State Responsibility), Fourth Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/444 and Add.1-3 (1992); Gaetano Arangio-Ruiz (Special Rapporteur on State Responsibility), Third Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/440 (July 19, 1991); Gaetano Arangio-Ruiz (Special Rapporteur on State Responsibility), Second Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/425 & Corr.1 and Add.1 & Corr.1 (1989); Willem Riphagen (Special Rapporteur on State Responsibility), Fifth Rep. on the Content, Forms and Degrees of Int’l Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/380 and Corr.1 (Apr. 4, 1984); Willem Riphagen (Special Rapporteur on State Responsibility), Fourth Rep. on the Content, Forms and Degrees of Int’l Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/366 and Add.1 & Add.1/Corr.1 (1983); Willem Riphagen (Special Rapporteur on State Responsibility), Third Rep. on the Content, Forms and Degrees of Int’l Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/354 and Corr.1 and Add.1 & 2 (1982); Willem Riphagen, (Special Rapporteur on State Responsibility), Second Rep. on the Content, Forms and Degrees of Int’l Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/344 and Corr.1 & Corr.2 (May 1, 1981); Roberto Ago (Special Rapporteur on State Responsibility), Fourth Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/264 and Add.1 (1972); Roberto Ago (Special Rapporteur on State Responsibility), Third Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/246 and Add.1-3 (1971); Robert Ago (Special Rapporteur on State Responsibility), Second Rep. on State Responsibility, Int’l Law Comm’n, U.N. Doc. A/CN.4/233 (Apr. 20, 1970). 2016] TJ AND STATE ACCOUNTABILITY 473 State crimes and the concept of penal sanctions;71 many representatives of States opposed codification based on fears that powerful States would use State crimes to coerce less powerful,72 and others raised procedural objections regarding how and who would define State crimes and what and whether procedural safeguards could be sufficient to ensure States would not be unfairly punished.73 Undergirding these debates was a debate about the nature of international law itself and whether “wrongs” in international law could be conceptualized properly according to municipal law, whether as torts or crimes, or whether wrongs in international law were of another character entirely.74 b. Differentiation of International Legal Responsibility Ultimately, the objections to State crimes carried the day. States relegated criminal accountability for mass violence the exclusive domain of international criminal law. The final bargain that the Draft Articles struck was recognition of State responsibility for jus cogens violations and erga omnes obligations but dropped explicit reference to State crimes, their definition, consequences for their commission, and a mechanism to enforce them. Interestingly, this took place contemporaneous to the drafting of the statute for the ICC—an undertaking that required States to address these same issues with 71. JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART 393 (Cambridge Univ. Press ed. 2013); Georges Abi-Saab, The Uses of Article 19, 10 EUR. J. INT’L L. 339, 341-42 (1999); Gilbert Guillame, Overview of Part One of the Articles on State Responsibility, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 65, at 187, 190. In addition, state practice did not support recognition of state crimes since at that time, no state had ever been accused of criminal conduct before an international court. Abi-Saab, supra, at 345. 72. Int’l Law Comm’n, Comments and Observations Received from Governments, U.N. Doc. A/CN.4/488 and Add.1-3, 112-23 (1998). For instance, “absence of institutional control over interpretive disagreements would play [into] the hands of the powerful States.” Martti Koskenniemi, Doctrines of State Responsibility, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 65, at 45, 49. 73. See James Crawford (Special Rapporteur on State Responsibility), First Rep. on State Responsibility, Int’l Law Comm’n, ¶¶ 84-86, U.N. Doc. A/CN.4/490 and Add.1-7 (1998) [hereinafter First Rep. on State Responsibility]. 74. See Draft Convention on “Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners” Prepared by Harvard Law School (1929), reprinted in 2 Y.B. Int’l Law Comm’n at 229-30, U.N. Doc. A/CN.4/SER.A/1956/Add.l; Alain Pellet, The Definition of Responsibility in International Law, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 71, at 3, 3-16; Antoine Ollivier, International Criminal Responsibility of the State, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 65, at 703, 714. 474 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 regard to individual accountability. James Crawford, the sixth Special Rapporteur and the one who eliminated the controversial Article 19 from the draft, spearheaded the final effort to submit Draft Articles at the same time as the treaty negotiations for the International Criminal Court entered full swing.75 Opposition to Draft Article 19 stemmed in part from arguments that individual criminal accountability was the appropriate providence for sanctioning the commission of atrocities, and that recognition of State crimes would undermine prosecutions of individuals for such acts.76 States also emphasized that the international system designated the Security Council as the appropriate body to consider how best to address acts that would be considered state crimes as threats to peace and security.77 And in any case, the Draft Articles would not affect the Security Council’s exercise of its powers.78 While a far cry from the explicit recognition of State crimes in the earlier draft, commentators point out that the final document is more flexible than it might seem and arguably creates “public interest” standing that allows any State to call for State accountability for breaches of peremptory norms,79 and collective enforcement by States could include not only cessation and other forms of reparations but also countermeasures.80 Scholars have argued that the Draft 75. The PrepCom issued its final report in October 1996. INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, supra note 27, at 594. Crawford dropped the language of state crimes from the draft in 1996, the same year states finalize the Rome Statute. See Vera Gowlland-Debbas, Responsibility and the United Nations Charter, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 71, at 115, 120. Interestingly, in negotiations of the Rome Statute, states opposed a draft provision on reparations that arguably would allow the court to make reparations awards against states on the ground that the court was limited to individual accountability. THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS 263-64 (Roy S. K. Lee ed., 1999). 76. See First Rep. on State Responsibility, supra note 73, ¶¶ 53(a) and (c), 88 (“The need for that notion may also be reduced by the development of institutions for prosecuting and trying individuals for international crimes, as exemplified by the proposed international criminal court.”). 77. See id. ¶ 52 (c) and (e). 78. Id. ¶ 87. 79. James Crawford, Overview of Part Three of the Articles on State Responsibility, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 65, at 931, 934. 80. See Int’l Law Comm’n, Responsibility of States for Internationally Wrongful Acts, art. 41 ¶ 3, in Int’l Law Comm’n, Rep. on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001); Responsibility of States for Internationally Wrongful Acts art. 41 ¶ 3, U.N. GAOR, 56th Sess., Supp. No. 10 (2001) [hereinafter Draft Articles on State Responsibility], (“This article is without prejudice to the 2016] TJ AND STATE ACCOUNTABILITY 475 Articles offer an important framework, upon which States can build. In 2001, the UN recognized the final proposed text but has not taken further action to turn the draft principles into a treaty.81 And the ICJ has ratified the ILC position that State criminality is not part of customary or principles of international law.82 In other words, the Draft Articles set a floor for agreement about State responsibility for peremptory norms (without limiting these further to those that might be “state crimes”) and do not prevent States from generating a more robust set of norms through treaty law that would delineate what constitutes State criminal behavior and creating an enforcement mechanism. The history of the Draft Articles illustrates how States jealously policed the boundaries of international criminal accountability. They curtailed acknowledgement that States may commit acts categorized as international crimes with the formal legal opprobrium that comes with criminal responsibility. If during the early postwar period it was conceivable that there would be an international accountability framework to implement legal responsibility of individuals and States that commit international crimes, the defeat of Article 19 and the completion of the Rome Statute meant the end of such ambition for a holistic approach. While breathing life into the Nuremberg Principles nearly 50 years after the fact with the creation of the ICC, States put the kybosh on State crimes even while recognizing that states may be implicated in international crimes. The normative condemnation that accompanies State culpability for system criminality is not available as a formal matter. Yet the international law remedies for State breaches offer a functional equivalent when accompanied by a finding of international legal responsibility for atrocity crimes.83 other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.”). 81. See G.A. Res. 56/83, ¶ 3, (Dec. 12, 2001) (taking note of the Articles and commending them to the attention of Governments, without prejudice to their future adoption as a treaty text or other appropriate action). 82. Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), I.C.J. 43, ¶¶ 167-70 (Feb. 27, 2007); James Crawford, International Crimes of State, in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 65, 403, 413-14. However, the court did find that states could be legally responsible for genocide under the Genocide Convention. See Saira Mohamed, A Neglected Option: The Contributions of State Responsibility for Genocide to Transitional Justice, 80 COL. L. REV. 327 (2009). 83. Treaty law currently establishes some provision of state remedies for acts that are also international crimes, although these mechanisms are rarely used. The Genocide 476 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 Like the law of State responsibility, international human rights law establishes legal consequences for State violations of international obligations. Because of the overlap between acts that constitute international crimes and human rights violations, the conceptualization of State responsibility in human rights law bears on this inquiry. 2. Human Rights Law If part of the impetus of the Allies for prosecuting members of the Nazi high command was to settle the score with Germany’s leaders for their responsibility for the horrors they unleashed, the Allies also worked to create a postwar order that could prevent the recurrence of similar destruction. These goals proceeded along parallel tracks. While the Nuremberg trials set in motion the development of international criminal law, the creation of the United Nations sparked the emergence of an international human rights regime. This began at the end of the war when high-level officials from the United States, Soviet Union, United Kingdom, and China met at Dumbarton Oaks and pledged to create a new international institution that would serve to facilitate peaceful interstate relations— a bulwark against another disastrous world war.84 Less than a year later, on June 26, 1945, representatives signed the United Nations Charter. The document includes in its preamble a commitment to human rights as one of the purposes of this new world institution.85 Convention and the Geneva Conventions establish that offending states are liable for reparations in the event of breaches. Supra note 68. The provisions for reparations under the Geneva Conventions are also part of customary law. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, ICRC, Rule 149, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule149 (last visited Jan. 4, 2016); id., Rule 150. Here as well, the lack of an enforcement mechanism hampers the utility of this norm. CHRISTINE EVANS, THE RIGHT TO REPARATION IN INTERNATIONAL LAW FOR VICTIMS OF ARMED CONFLICT, 33 (2012). 84. History of the UN Charter, 1944-1945: Dumbarton Oaks and Yalta, UNITED NATIONS, http://www.un.org/en/sections/history-united-nations-charter/1944-1945- dumbarton-oaks-and-yalta/index.html (last visited Feb. 1, 2016). 85. ROBERTSON, supra note 24, at 35; JACOB ROBINSON, HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN THE CHARTER OF THE UNITED NATIONS—A COMMENTARY (1946); see U.N. Charter prmbl. (“We the peoples of the United Nations have determined... to reaffirm faith in fundamental human rights.”); U.N. Charter art. 1, ¶ 3 (“The purposes of the United Nations are... [to] promot[e] and encourage[e] respect for human rights and fundamental freedoms for all”). 2016] TJ AND STATE ACCOUNTABILITY 477 What were human rights and what conception of State responsibility do they embody? The Charter set out the structure to elaborate their content, but their animating idea was to universalize rights-based protection of the individual from abuse by the State. The Charter established the Economic and Social Council with power to set up a Human Rights Commission. Chaired by Eleanor Roosevelt, the Commission set out to give content to the Charter’s lofty language of human rights. The Commission worked from April 1946 to December 1948 to draft an international instrument that established the “fundamental human rights” the Charter invoked.86 The result was the Universal Declaration of Human Rights (“UDHR”), which together with subsequent two human rights treaties is referred to as the International Bill of Rights. As the delegates hashed out what fundamental guarantees states should honor, the record of the horrors of the Nazi regime played in the background. According to Geoffrey Robertson: The most profound influence on the Commission was the evidence from the trial of the Nazi leaders, which lasted from Justice Jackson’s opening on 20 November 1945 to the judgment on 30 September 1946.... The evidence upon which the judgment was based would provide the rationale for many of the clauses of the Universal Declaration.87 Delegates received reports from the trials, which disclosed Nazi tactics of mass persecution. These served as cautionary tales for just how terrifying the power of State violence can be when the State apparatus is organized to target groups. Details about Einsatzgruppen massacres (German units deployed specifically to target and kill Jews, Gypsies, other civilians, and Soviet political commissars), the implementation of the Final Solution via a network of concentration camps, Dr. Mengele’s cruel “medical” experiments on Jewish prisoners, and other tactics of the Third Reich helped solidify the determination of delegates to establish universal principles to protect individual dignity.88 In particular, after receiving one such report, delegates drafted Article 2 of the UDHR which inscribes the State duty of non- discrimination based on “race, colour, sex, language, religion, policy or other opinion, national or social origin, property, 86. Drafting of the Universal Declaration of Human Rights: A Historical Record of the Drafting Process, UNITED NATIONS (Dec. 8, 2015), http://research.un.org/en/undhr. 87. ROBERTSON, supra note 24, at 40. 88. Id. at 41-42. 478 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 birth or other status.”89 The record of the brutal depredations inflicted by the Nazis mounted and underscored the moral imperative to establish a framework for state recognition and guarantee of individual rights. The UDHR served as a statement of the fundamental individual rights that States in the modern era recognized and pledged to achieve. It also marked the beginning of a period of standard setting and formalization of these principles as legal obligations of States at the international level as well as through new regional organizations formed to facilitate and promote interstate cooperation. In a decades- long process protracted by rising Cold War politics, in 1966 the Commission finalized two treaties, the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Cultural and Social Rights (“IECSR”). These instruments elaborated the rights in the UDHR in a legally binding framework that for signatory States established a mechanism for independent experts to monitor State compliance. Since that time, the United Nations has generated additional human rights treaties focused on specific abuses, like torture90 and race discrimination91 or on particular groups like women,92 children,93 migrants,94 and the disabled.95 The international treaty system is complemented at the regional level by additional human rights treaty-based mechanisms, some of which, like the European and Inter-American, have stronger 89. Id; see JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING AND INTENT (1999); Johannes Morsink, World War Two and the Universal Declaration, 15 HUM. RTS. Q. 357 (1993). Other rights were also drafted with the vivid memory of how the Nazi regime subverted individual rights through a system of control over public and private life including core principles like judicial independence, rule by popular consent, and the rights of families to have choice in their child’s education. ROBERTSON, supra note 24, at 42. 90. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85. 91. International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 12, 1969, 660 U.N.T.S. 195. 92. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S 13. 93. Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3. 94. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature Dec. 18, 1990, 2220 U.N.T.S. 3. 95. Convention on the Rights of Persons with Disabilities, opened for signature Dec. 13, 2006, 2515 U.N.T.S. 3. 2016] TJ AND STATE ACCOUNTABILITY 479 enforcement procedures than those provided through the UN treaties and have generated significant and binding judgments.96 The conception of international accountability of States that violate human rights guarantees reflected in the UN treaty regime is consistent with the law of State responsibility: States may be legally responsible for acts that qualify as human rights violations and which are also international crimes but such breaches are not of a criminal nature. Such soft-pedaling is also indicative of the reluctance of States to agree to a strong enforcement regime. At the drafting of the UN Charter, States rejected proposals to make their commitment to protecting human rights legally binding or to include an enforcement mechanism like an international court.97 Equally telling is that powerful States defeated such initiatives, motivated by self-interest to insulate themselves from justice demands at home.98 These same debates resurfaced at the Commission during the drafting of the UDHR. Again, States turned down proposals to make the document a legally binding instrument and to establish a court to enforce it. Supporters of stronger measures argued these were needed to ensure that States could no longer look on as they did when Nazi Germany engaged in wholesale persecution of its own citizens, and argue that those were internal issues not of international concern.99 Yet, such statements failed to persuade the postwar great power States to agree to greater oversight. 96. DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW 114-41 (2d ed., 2005). 97. ROBERTSON, supra note 24, at 38-39. 98. Id. European colonial powers did not want to confer rights on colonial subjects, the United States sought to insulate its “Jim Crow” laws from international scrutiny, and Stalin had no desire to extend rights to prisoners in the Soviet gulag. Jochen von Bernstorff, The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law, 19 EUR. J. INT’L L. 903, 907-08 (2008) (“The allied powers, however, never had intended to grant the protection of human rights a central role in the institutional set up of the new world organization. Washington had an unfavourable domestic non-discrimination record, not just regarding African Americans; Moscow had established a highly repressive régime; and London had no interest in closer international scrutiny of its policies in the colonies.”). 99. French delegate Rene Cassin supported article 28, which guaranteed a just international order “in the hope of avoiding a repetition of what happened in 1933, when Germany began to massacre her own nationals and when other nationals refused to consider this a matter of international concern.” Quoted in ROBERTSON, supra note 24, at 43; G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 28 (Dec. 10, 1948) (“Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realized.”). 480 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:447 In other words, States may violate individual human rights, but the enforcement system at the international level is relatively weak.100 In this context, UN treaty bodies and other international instruments interpreting the content of State human rights obligations and the legal consequences for their breach have developed jurisprudence on the State duty to investigate and prosecute individuals responsible for committing human rights violations that are also codified as criminal acts.101 This “duty to prosecute and punish” is now firmly established in human rights law.102 Normatively powerful, it dovetails with international criminal law’s liberal focus on individual culpability for atrocities. In this regard, the objective of both human rights and international criminal law is to punish individuals. Because legal culpability or guilt is reserved exc