The Right to a Homeland, Ethnic Cleansing, and the International Criminal Tribunal for the Former Yugoslavia

Alfred de Zayas (1)

INTRODUCTION

It may be considered an anomaly that although the right to live in one's homeland is undoubtedly a fundamental right, and although the United Nations and other intergovernmental forums have engaged in extensive standard setting in the area of human rights, the right to a homeland (2) has not yet been expressly recognized in either an international convention or an addendum to the universal human rights covenants, in the form of a new article or optional protocol. (3) Notwithstanding this positivist lacuna, the right to a homeland is a necessary prerequisite to the enjoyment of most other human rights. Indeed, the denial of the right to live in one's homeland necessarily entails the violation of such rights as the right to self-determination, which many consider to be jus cogens, or a peremptory norm of international law. (4) Without the right to a homeland, persons could be forcibly expelled from their native lands and thus deprived not only of self-determination but also of the exercise of most civil, political, economic, social, and cultural rights that are widely protected in international law.

This article proposes to demonstrate the right to a homeland in international law by tracing the protection of its elements in existing norms. As discussed below, the right to a homeland can be derived, inter alia, from provisions of the International Covenant on Civil and Political Rights, (5) the International Covenant on Economic, Social, and Cultural Rights, (6) the International Convention on the Elimination of All Forms of Racial Discrimination, (7) the Convention on the Prevention and Punishment of the Crime of Genocide, (8) and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities. (9) It can also be established e contrario; that is, the prohibition of compulsory population transfers is the negative expression of the right to a homeland. Such a prohibition is contained in the Fourth Geneva Convention of 1949 (10) and in Additional Protocol II of 1977. (11) Moreover, the deportation of the native population and the implantation of settlers in occupied areas was prosecuted under the Nuremberg Charter as a war crime and a crime against humanity. (12) On the basis of these sources of law, it can be asserted that, although the right to a homeland has yet to be specifically formulated and embodied in an international convention or protocol, its violation in the form of "ethnic cleansing" (13) or mass expulsion constitutes a serious offense against international humanitarian law that is subject to prosecution by the International Criminal Tribunal for the Former Yugoslavia.

Within this framework, I examine the continued occurrence of ethnic cleansing and mass expulsions. I begin with a historical survey of forcible population transfers in European history. In the following sections, I review the applicable hard law and soft law, focusing on international norms and case law, as well as on ongoing efforts by the International Law Commission, the UN Subcommission on Prevention of Discrimination and Protection of Minorities, the UN Commission on Human Rights, and the UN High Commissioner for Human Rights to promote and protect the right to a homeland. The next section examines the current policy and practice of ethnic cleansing in the former Yugoslavia and shows that it entails war crimes and crimes against humanity, and that some manifestations of ethnic cleansing constitute genocide within the meaning of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. In this context, I review the mandate of the International Criminal Tribunal for the Former Yugoslavia and its proceedings to date. (14) Although ethnic cleansing is not an offense expressly included in the Tribunal's Statute, (15) I suggest that the actions that are used to accomplish ethnic cleansing clearly fall within the Tribunal's competence. The concluding section puts forward the idea that in this era of human rights codification, ethnic cleansing is an anachronism. I explore possible remedies, in particular, the return of refugees and expelled persons to their homelands, and call for the formal articulation of this right in an international convention.

POPULATION TRANSFERS

Population transfers were common in ancient times, but the practice had fallen into disuse in Europe in the nineteenth century. When frontiers changed by military force, the native populations were for the most part allowed to remain where they lived as long as they recognized the new sovereign. In the late nineteenth century, however, runaway nationalism and the racist concept of the single-ethnic state resulted in the terrorization and forced flight of other ethnic minorities. During and after the Balkan wars, large-scale expulsions and population transfers took place during and after the Balkan wars of the early twentieth century. In the period between the first and the second world war, the government of the new Yugoslav state, in an attempt to assert cultural hegemony, closed state schools for Kosovo's Albanians and forcibly expelled about 45,000 Albanians from Kosovo province--confiscating their land and turning it over to some 60,000 Serbian "colonists." (16) Ethnic cleansing in Bosnia and Herzegovina following the breakup of the former Yugoslavia in 1991 is a contemporary example of how international law and morality have been subordinated to jingoistic and racist fantasies. (17)

Prior to the second world war, international human rights standards had not quite coalesced and the concept of population transfers was not defined in legal terms. As a matter of fact, the possibility of transferring populations, rather than shifting frontiers, was viewed by numerous respected politicians as an arguable solution to ethnic tensions. Such a solution appeared particularly attractive when a redrawing of frontiers along ethnic lines was not practicable and would not succeed in separating intermingled hostile populations. Thus, pursuant to the 1923 Treaty of Lausanne, (18) some two million Greeks and Turks were "exchanged" on a compulsory basis, (19) with the blessing of the League of Nations. (20) This novel idea was not, however, without its critics. Prominent among them was Lord Curzon, British Foreign Minister from 1919 to 1924 and participant in the Lausanne conference, who at that time warned that "the world will pay a heavy penalty for a hundred years to come" for such a "thoroughly bad and vicious solution." (21) Later commentators agreed that the population exchange was not a model of either humanity or wisdom, and its repercussions, economic and political, were considerable. Sir John Hope-Simpson, who was intimately involved with the Lausanne treaty process, observed in 1946 that the exchange of Greeks and Turks had meant an appalling amount of misery and hardship to all concerned. (22)

Yet, in the 1920s the Lausanne precedent was perceived by many as a bold new scheme in international affairs, an experiment entered into with great expectations. (23) It should be noted that under the terms of the agreement the population exchange was to be gradual and orderly, provision having been made for a mixed commission of members representing Greece, Turkey, and the Council of the League of Nations to supervise the exchange of persons and the liquidation of property claims. Whereas the population exchange was carried out smoothly, the settlement of property matters proved unworkable, so that finally all accounts were liquidated by a lump sum agreement. (24)

Several population transfers pursuant to bilateral treaties with a clause of option of nationality were conducted in 1939-1941 after the outbreak of World War II. Following a speech to the Reichstag on October 6, 1939, announcing "a new order of ethnographical conditions . . . a resettlement of nationalities in such a manner that the process ultimately results in the obtaining of better dividing lines," Hitler summoned hundreds of thousands of ethnic Germans living in neighboring states to return to Germany. On October 15, 1939, the Reich concluded an agreement with Estonia involving the transfer of 12,900 "splinters of the German nationality," (25) followed on October 21 by an agreement with Italy involving 185,365 South Tyrolians; on October 30, by an agreement with Latvia involving 48,600 Baltic Germans; on November 3, by an agreement with the Soviet Union involving 128,000 Germans from Volhynia and East Galicia; and by other agreements. Since the repatriations were to be voluntary, many of the Germans at first opted to stay in their host countries. Only after the Soviet Union invaded and annexed the Baltic states did the majority of the remaining 70,000 ethnic Germans decide that they would prefer, after all, to resettle in Germany. A new transfer treaty with an option clause was negotiated on January 10, 1941, this time between the Reich and the Soviet Union. (26)

Fundamentally different from these transfers based on option of nationality agreements were the forced resettlements that Hitler imposed on millions of non-Germans during the war. Among the victims were over 100,000 French who were expelled from Alsace-Lorraine into Vichy France, and over one million Poles who were deported from the western parts of occupied Poland (Warthegau) into the so-called Government-General.of Poland. Similar treatment awaited many Yugoslavs and Ukrainians. Only military defeat prevented Hitler from implementing his Lebensraum and resettlement plans. (27)

The crucial difference between the option agreements and the expulsions was the element of compulsion. But international law had not yet formally taken up the question of population transfers. Most notably, the Hague Conventions did not specifically cover the issue "probably because the practice of deporting persons was regarded at the beginning of this century as having fallen into abeyance." (28) However, the lack of an express prohibition on compulsory deportations does not mean that this practice was compatible with international law. Indeed, the Allies soon condemned the forcible expulsion of civilians as war crimes and as crimes against humanity, (29) arguing that any population transfer out of occupied territory necessarily entailed violations of articles 42-56 of the regulations annexed to the Fourth Hague Convention of 1907, (30) which delimit the powers of a belligerent occupant.

Nonetheless, in the last few months of the second world war and in the years immediately following, the Allies carried out compulsory population transfers on an unprecedented scale. Some fifteen million ethnic Germans were expelled from areas where their ancestors had lived for seven hundred years, including Czechoslovakia, Hungary, Romania, and Yugoslavia, as well as from the eastern provinces of Germany, (31) which were placed under the so-called Polish Provisional Government of National Unity. (32) While these transfers into the Soviet, British, U.S., and French zones of occupation were supposed to be conducted in an "orderly and humane" manner, (33) the expelling states observed neither the timetables nor the conditions established by the Allied Control Council for Germany. An estimated two to three million Germans died as a result. (34)

COLLECTIVE EXPULSIONS: HARD LAW

(DE LEGE LATA)

The Law of Armed Conflict

While the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, (35) does not by its terms prohibit population transfers and the implantation of settlers in occupied territory, this practice may well constitute genocide not only under the terms of the Genocide Convention but also as a matter of customary international law.

Article 2 defines genocide as encompassing any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such:



(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.



It is not difficult to prove that population transfers have frequently led to enormous loss of life, in direct violation of article 2(a9 or 2(c). As noted earlier, the enforced flight and expulsion of some fifteen million ethnic Germans at the end of the second world war caused the deaths of over two million of them (36) and there is ample evidence that numerous leaders of the Soveit Union, Poland, and Czechoslovakia intended that loss of life. The traumatic experience of losing one's home and every link to the land where one was born and where one's parents and grandparents were buried certainly also caused serious bodily and mental harm to the surviving members of the group, in violation of article 2(b). It is hardly tenable that those who order or carry out such expulsions do not intend their foreseeable consequences.

On December 10, 1948 (one day after the Genocide Convention), the UN General Assembly adopted the Universal Declaration of Human Rights. (37) In its preamble, the declaration "proclaims" a comprehensive set of rights as a "common standard of achievement for all peoples and all nations" and seeks "to promote respect for these rights and freedoms" and "to secure their universal and effective recognition and observance." Most obvious here are the prohibition on discrimination in the enjoyment of the enumerated rights (article 2), the right to life, liberty, and security of person (article 3), the prohibition on slavery and servitude (article 4), the prohibition on torture and cruel, inhuman, or degrading treatment or punishment (article 5), the guarantee of equality and equal protection (articles 1, 7, 8, and 10), the prohibition on arbitrary arrest, detention, or exile (article 9), the prohibition on arbitrary interference with privacy, family, home, and correspondence (article 12), the right to freedom of movement and residence within national borders (article 13), the right to a nationality (article 15), and the right to freedom of thought, conscience, and religion (article 18).

Although population transfers would violate these and other articles, positivists would remind us that the declaration is not legally binding, but only a catalogue of principles to be progressively implemented. However, most experts now agree that the Universal Declaration is an authoritative interpretation of the human rights provisions of the UN Charter and at least in some provisions codifies customary law; frequent invocation by the General Assembly down through the years lends further support to the declaration's status as a binding instrument.

The first attempt expressly to criminalize population transfers was taken in the context of the protection of civilian populations in armed conflict. Indeed, many population transfers have occurred in one way or another before, during, or as a result of war.

Article 49 of the Fourth Geneva Convention of 1949 stipulates:



Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

. . . .

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. (38)



In order to put some teeth into the convention, the drafters stipulated in article 146 that the high contracting parties must enact legislation providing effective penal sanctions for persons committing, or ordering to be committed, the grave breaches listed in article 147 of the convention. The category of "grave breaches" includes the unlawful deportation or transfer of persons.

The prohibitions spelled out in the Fourth Geneva Convention apply, in principle, only in situations of international warfare. In situations of armed conflict not of an international character, article 3 of the convention stipulates that the high contracting parties must respect, and suppress the violation of, certain minimum rules; notably, to treat humanely all persons taking no active part in the hostilities, to spare them violence to life and person, to refrain from hostage taking, and to refrain from committing outrages upon personal dignity. Deportation arguably falls within article 3.

It took nearly three more decades to codify the prohibition of forced removal of civilians in internal armed conflicts. Under Protocol II to the 1949 Geneva Conventions:



The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. (39)




The Right to a Homeland as a Human Right



The Fourth Geneva Convention and Protocol II help us understand the prohibition of population transfers in situations of armed conflict, whether international or internal. In peacetime we also recognize the right of everyone to live in his or her homeland, free of fear of being subjected to compulsory transfer. Indeed, the prohibition of collective expulsion and the implantation of settlers must be understood as one of the most fundamental rights of the human being: the right to a homeland.

Subsequent to the adoption of the Universal Declaration of Human Rights, the United Nations has proceeded to adopt over fifty important conventions and declarations in the field of human rights. The most important are indubitably the two human rights covenants of 1966, which are discussed in the following sections. It will be shown that the right to one's homeland in both peacetime and wartime can be derived from these instruments.



International Covenant on Civil and Political Rights



Measured against the International Covenant on Civil and Political Rights, (40) compulsory population transfers would violate almost every provision. The following summary highlights the most important.



Article 1(1): "All peoples have the right of self-determination." The exercise of this fundamental right, which today is considered by many to be jus cogens, (41) would necessarily be frustrated where a population was uprooted from its homeland. (42)



Article 2(1): "Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Any state that collectively expels its residents denies them the enjoyment of their covenant rights. Moreover, singling out any segment of the population for purposes of population transfer would in itself constitute prohibited discrimination.



Article 4(1), (2): Even in times of "public emergency which threatens the life of the nation," no derogation is allowed from articles 6, 7, 8, 11, 15, 16, and 18. (43) Compulsory population transfer would, in most cases, violate all of these provisions.



Article 6(1): "Every human being has the inherent right to life." It is hardly conceivable that a compulsory population transfer would not violate this right. The policy of ethnic cleansing in the former Yugoslavia has already taken a very high toll of human life. It is estimated that 200,000 people have been killed or disappeared in Bosnia alone since the war began. (44)



Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Victims of expulsions or ethnic cleansing are invariably subjected to cruel, inhuman, or degrading treatment. Frequently, they are also subjected to torture, rape, and other physical abuse. This has been amply documented in the former Yugoslavia. (45)



Article 8(3)(a): "No one shall be required to perform forced or compulsory labour." Prior to expulsion, persons frequently are subjected to detention and/or required to perform forced labor. This was the case with nearly one million ethnic Germans from Hungary, Romania, Slovakia, and Yugoslavia, as well as from East Prussia, Pomerania, and Silesia, who in the aftermath of the second world war were first deported to the Soviet Union as "reparations in kind" (46) and then "repatriated"--not to their respective home countries but to other localities in the newly created German Democratic Republic and Federal Republic of Germany. Forced labor has been reported in Bosnia, most recently, northwestern Bosnia, where there is evidence not only of slave labor (47) but also of mass killings of men who were being used as slave laborers. (48)



Article 9(1): "Everyone has the right to liberty and security of person." Any expulsion necessarily violates the right to security of person, and experience shows that persons subjected to expulsion measures are frequently deprived of their liberty by being detained in internment camps prior to expulsion and confined in reception centers upon arrival in the new location. (49)The war in Bosnia has in a very real sense been waged through and in concentration camps: the great majority of persons indicted by the International Criminal Tribunal for the Former Yugoslavia have been charged with crimes committed in connection with the collective detention of civilians, including murder, rape and torture.



Article 12(1), (4): "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." An expulsion is intended permanently to frustrate this right. (50) More important, "No one shall be arbitrarily deprived of the right to enter his own country." The adverb "arbitrarily" means without proper legal proceedings in each individual case. Victims of population transfer are denied the right to legal process at the time of expulsion. By the nature of the expulsion policy, the right to return is also denied routinely and without individual justification. The number of Bosnian refugees has been estimated from over two million, or roughly half the prewar population of 4.3 million, (51) to 3.7 million. (52)



Article 13: "An alien lawfully in the territory of a State Party . . . may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed . . . ." A collective expulsion would necessarily be incompatible with this provision.



Article 14(1): "All persons shall be equal before the courts and tribunals. In the determination . . . of his rights . . . everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Article 2(3) requires each state party to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy" and to "ensure that any person claiming such a remedy shall have his right thereto determined by . . . competent authority . . . and to develop the possibilities of judicial remedy." Thus, all persons threatened by expulsion are entitled to due process of law on the same basis as persons who are not so threatened.



Article 17(1): "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks " Expulsion entails an arbitrary or unlawful interference with privacy, family, and home and is frequently accompanied by unlawful attacks on the honor and reputation of the persons to be expelled.



Article 18(1): "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom . . . to manifest his religion or belief in worship, observance, practice and teaching." Expulsions are frequently motivated by religious hatred. Surely the freedom to practice one's religion by worshiping at a sacred shrine in one's homeland and the freedom to visit and honor the burial sites of ancestors would be denied by forcible expulsion.



Article 19(2): "Everyone shall have the right to freedom of expression . . . ." Expulsions may be directed against persons because of their exercise of this right. Indeed, demonstrators and critics are frequently the first to suffer expulsion, for example, in the Palestinian context. (53)



Article 20(2): "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." States parties are obligated to prohibit precisely the sort of rabble-rousing that often results in expulsions. [perhaps add Milosevic example--his Greater Serbia speech in Kosovo [FN already supplied] (54)



Article 23(1): "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." Expulsion measures frequently separate men from their wives and children, and sometimes they never see each other again. (55) Both at Srebrenica (56) and in northwestern Bosnia, (57) thousands of Muslim men and boys have "disappeared" after being forcibly taken away from their families.



Article 24(1), (3): "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." An expulsion is a traumatic experience, which subjects children to considerable privation and suffering and denies them the special protection that is their right. Moreover, "Every child has the right to acquire a nationality." An expulsion may also be accompanied by denationalization and may thus render the child stateless.



Article 25: "Every citizen shall have the right and the opportunity . . . [t]o take part in the conduct of public affairs, . . . [t]o vote and to be elected at genuine periodic elections . . . [and] [t]o have access, on general terms of equality, to public service in his country." Expelled persons, if formerly citizens of the state concerned, are through their removal deprived of all these rights.



Article 26: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." It is hardly possible to conceive an instance of compulsory population transfer, which singles out one group and spares others, that would not be based on prohibited discrimination and denial of equal protection.



Article 27: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." Thus, international law recognizes the existence of minorities and their right to maintain their identity. (58)



International Covenant on Economic, Social, and Cultural Rights



In addition to the infringement of civil and political rights, the socioeconomic and cultural dislocations and losses associated with collective expulsions would amount to a violation of most provisions of the International Covenant on Economic, Social, and Cultural Rights. (59)

At issue in particular are the right of self-determination (article 1(1), a people's right to dispose freely of its natural wealth and resources (article 1(2)); the right to work, "which includes the right of everyone to the opportunity to earn his living by work which he freely chooses" (article 6(1)); the right to social security (article 9), for which expellees have frequently contributed for many years prior to their expulsion; the right to protection of the family, new mothers, children, and young persons (article 10); the right to an adequate standard of living (article 11(1)); the right to the "enjoyment of the highest attainable standard of physical and mental health" (article 12(1)); the right to education (article 13(1)); and the right to take part in cultural life (article 15(1)(a)). Indeed, the long-term cultural and psychological damage inflicted on expelled populations, their children, and grandchildren cannot be overstated. (60)



International Convention on the Elimination of All Forms

of Racial Discrimination



Bearing in mind that population transfers are frequently aimed at eliminating ethnic, religious, or linguistic groups, it is evident that they violate most provisions of the Convention on Racial Discrimination. (61) This convention broadly prohibits "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms" (62) and imposes affirmative obligations on states parties to combat prohibited discrimination. (63)

The Committee on the Eliminantion of Racial discrimination (CERD) was established to monitor compliance by states parties with the convention. The Committee, which reports to the UN General Assembly, is composed of eighteen independent experts who meet twice a year in Geneva. In its "concluding observations" on the report of the Republic of Bosnia and Herzegovina, (64) submitted at the request of the Committee on the Elimination of Racial Discrimination in accordance with the convention, the committee condemned



the massive, gross and systematic human rights violations occurring in the territory of Bosnia and Herzegovina, most of which are committed in connection with the systematic policy of "ethnic cleansing" and genocidal acts in the areas under control of the self-proclaimed Bosnian Serb authorities. All these practices still occurring constitute a grave violation of all basic principles underlying the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee urges the immediate reversal of ethnic cleansing, which must begin with the voluntary return of displaced people. (65)



In its Decision 2 (47) on the situation in Bosnia and Herzegovina, adopted on August 17, 1995, the committee reemphasized "that any attempt to change or to uphold a changed demographic composition of an area, against the will of the original inhabitants, by whichever means is a violation of international law" and by way of concrete reparation demanded "that persons be given the opportunity to safely return to the places they inhabited before the beginning of the conflict and their safety be guaranteed as well as their effective participation in the conduct of public life." (66) These pronouncements represent the concrete application of the convention's norms and constitute hard law as to states parties to the convention.



Regional Norms



On the regional level, collective expulsions violate several provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (67) Article 1 binds the states parties to "secure to everyone within their jurisdiction the rights and freedoms" defined and guaranteed in the convention, which largely tracks the Universal Declaration of Human Rights. OK? Protocol 4 to the convention specifically provides:



1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.



2. No one shall be deprived of the right to enter the territory of the State of which he is a national. (68)



The protocol also expressly stipulates: "Collective expulsion of aliens is prohibited." (69)

Expulsions would similarly violate many of the civil and political rights protected by the American Convention on Human Rights. (70) Most important in terms of the right to a homeland is article 22(5), which provides that "[n]o one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it," and article 22(9), which prohibits "the collective expulsion of aliens." [OK?] Likewise, the Banjul (African) Charter on Human and Peoples' Right expressly prohibits the "mass expulsion of non-nationals," which is defined as deportation "aimed at national, racial, ethnic or religious groups." (71)



International Jurisprudence: The Nuremberg Trials



The catalogue of crimes committed by the National Socialist government of Germany was so large and the crimes so shocking that an international court was convened in Nuremberg in 1945 to bring those responsible to justice. The charges relevant here involved forced expulsions of civilian populations, mass deportations for the purpose of gaining Lebensraum, and forced labor. Article 6(b) of the Nuremberg Charter defined "war crimes" to include "murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory." (72) Count 3, section B, of the Nuremberg indictment alleged the "[d]eportation for slave labour and for other purposes of civilian populations of and in occupied territories." (73) Count 3, section J, of the indictment read:



In certain occupied territories purportedly annexed to Germany the defendants methodically and pursuant to plan endeavoured to assimilate those territories politically, culturally, socially and economically into the German Reich. The defendants endeavoured to obliterate the former national character of these territories. In pursuance of these plans and endeavours, the defendants forcibly deported inhabitants who were predominantly non-German and replaced them by thousands of German colonists. (74)



Article 6(c) of the Charter defined "crimes against humanity" to include "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war." (75) Such crimes, including the crime of mass deportation, were the subject of count 4, section A, of the indictment. (76)

During the trials, the practice of "germanizing" occupied or "annexed" territories was repeatedly condemned, as were the deportations of civilian populations from one occupied region to another occupied region (the Government-General of Poland) or to unoccupied regions (Vichy France). (77) The tribunal's conclusion was unequivocal: population transfer and colonization of occupied territory constituted both wars crime and crimes against humanity. (78)

After such condemnation, and the unanimous approval by the United Nations of the Nuremberg principles in General Assembly Resolution 95 (I) of 1946, (79) it could safely be assumed that compulsory population transfers and the implantation of settlers in territories long settled by other peoples would no longer occur. Unfortunately, there remained a very big gap between standard setting and implementation. Indeed, while the Nuremberg trials were still in progress, the deportation of ethnic Germans described earlier was proceeding (80) based on decrees by, or at least with the tacit approval of, the very powers whose prosecutors and judges were condemning the mass deportations perpetrated by the Nazis. Were population transfers legal, after all, if carried out by victorious powers but illegal if carried out by the vanquished, or was the expulsion of Germans to be understood as an exception to a universal prohibition?





COLLECTIVE EXPULSIONS: SOFT LAW

(DE LEGE FERENDA)



United Nations Subcommission on Prevention of Discrimination

and Protection of Minorities



By Resolution 1994/24 of August 26, 1994, the UN Subcommission on Prevention of Discrimination and Protection of Minorities, a functional commission of ECOSOC established in 1947 under article 68 of the UN Charter to support the UN Commission on Human Rights in standard setting and monitoring, essentially recognized the right to a homeland when it affirmed two crucial elements of this right: the right to remain and the right to return. In its operative paragraphs, the resolution



1. [A]ffirms the right of persons to remain in peace in their own homes, on their own lands and in their own countries;



2. [A]lso affirms the right of refugees and displaced persons to return in safety and dignity, to their country of origin and/or within it, to their place of origin or choice;



3. [U]rges Governments and other actors involved to do everything possible in order to cease at once all practices of forced displacement, population transfer and ethnic cleansing in violation of international legal standards. (81)



This resolution was reaffirmed by the subcommission at its forty-seventh session in August 1995 in Resolution 1995/13, which asserts "that practices of forcible exile, mass expulsions and deportations, population transfer, 'ethnic cleansing' and other forms of forcible displacement of populations within a country or across borders deprive the affected populations of their right to freedom of movement," in violation of article 12 of the International Covenant on Civil and Political Rights and article 13 of the Universal Declaration of Human Rights. (82) The 1995 resolution also recalls (83) the Vienna Declaration and Programme of Action, adopted in 1993 by the UN World Conference on Human Rights, which specifically recognizes the right of everyone, without distinction of any kind, to return to his or her own country, (84) and Resolution 1995/88 of the UN Commission on Human Rights on "human rights and mass exoduses."in which the commission "strongly deplored ethnic and other forms of intolerance... and urged States to take all necessary steps to ensure respect for human rgihts, especially the rights of persons belonging to minorities." (85)

Even before the adoption of these important resolutions, the subcommission had appointed two special rapporteurs to study the human rights dimensions of population transfers, including the implantation of settlers and settlements. By Resolution 1992/28, adopted without a vote on August 27, 1992, the subcommission



1. [R]ecognizes that practices of population transfer constitute a violation of fundamental human rights;



2. [E]ntrusts Mr. Awn Shawhat Al-Khasawneh and Mr. Ribot Hatano, as Special Rapporteurs, with preparing a preliminary study on the human rights dimensions of population transfer, including the implantation of settlers and settlements. (86)



The Commission on Human Rights subsequently endorsed the subcommission's decision to request this study. (87)

In their initial report, Al-Khasawneh and Hatano found "that population transfer is, prima facie, unlawful and violated a number of rights affirmed in human rights and humanitarian law for both transferred and receiving populations." (88) The special rapporteurs went on to express the view that such practices undermine the very foundations of an international order based on self-determination and constitute a threat to world peace. (89)

A later report focused on those rules of customary international law that are recognized as binding upon all states. They include



the prohibition of genocide, torture and cruel, inhuman and degrading treatment, slavery, racial discrimination, or a pattern of discrimination. These standards also form peremptory norms of jus cogens whose character is such that they cannot be derogated or set aside, even by agreement or treaty. . . . Population transfer is clearly unlawful and prohibited where its purpose or effect constitutes or amounts to genocide, torture and its related elements, slavery, racial and systematic discrimination, and interference with the legitimate exercise of the right to self-determination, or where it is manifestly disproportionate to the exception of military necessity in humanitarian law. . . . By the same token, the proscription of racial discrimination prohibits population transfers aimed at specific groups such as minorities and indigenous peoples, especially where the purpose or effect is one of demographic manipulation by dispersing such groups from their homelands within the State. . . . Population transfer is unlawful if its purpose is punitive so as to subject a group to torture or cruel, inhuman and degrading treatment. (90)

The report concluded that "international law prohibits the transfer of persons, including the implantation of settlers, as a general principle. The governing principle is that the transfer of populations must be done with the consent of the population involved. Because the transfer of populations is subject to consent, this principle reinforces the prohibition against such transfer." (91) Special Rapporteur Al-Khasawneh also made an interesting recommendation that "the Sub-Commission begin work towards a draft declaration on the subject of forcible population transfers and the implantation of settlers and settlements." (92) Ultimately, such a declaration would be adopted by the General Assembly as a step toward the adoption of a new protocol to the International Covenant on Civil and Political Rights.



International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind



Progress in the struggle to ban population transfers is unquestionably being made. The number of legal experts coming to the conclusion that such practices constitute crimes against humanity and even genocide is steadily increasing. One important example is the International Law Commission's (ILC) Draft Code of Crimes against the Peace and Security of Mankind. (93) The ILC is an expert body set up by the General Assembly in the late 1940s (94) and requested to prepare such a code (95) and examine the related question of creating an international criminal tribunal. (96) The ILC approved the current text of the Draft Code of Crimes at its forty-third session in 1991. (97) The commission is now reviewing comments from governments on this text. Article 21 lists "deportation or forcible transfer of population" as a "systematic or mass violation of human rights," for which perpetrators bear individual criminal liability. The ILC commentary on this article observes



that a crime of this nature could be committed not only in time of armed conflict but also in time of peace . . . . Deportation . . . implies expulsion from the national territory, whereas the forcible transfer of population could occur wholly within the frontiers of one and the same State. . . . Transfers of population under the draft article meant transfers intended, for instance, to alter a territory's demographic composition for political, racial, religious or other reasons, or transfers made in an attempt to uproot a people from their ancestral lands. One member of the Commission was of the view that this crime could also come under the heading of genocide. (98)



Under article 22(2)(a), the practice of "deportation or transfer of the civilian population and collective punishment," and under article 22(2)(b), "establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory," are listed as "exceptionally serious war crimes." The ILC commentary explains that "[e]stablishing settlers in an occupied territory constitutes a particularly serious misuse of power, especially since such an act could involve the disguised intent to annex the occupied territory. Changes to the demographic composition of an occupied territory seemed to the Commission to be such a serious act that it could echo the seriousness of genocide." (99)

Although the Draft Code of Crimes has not yet been adopted, it is a source of guidance to international jurists and in practicular the judges of the International Criminal Tribunal for the Former Yugoslavia as they are called on to judge crimes connected with ethnic cleansing.



United Nations High Commissioner for Human Rights



At its forty-eighth session in 1993, the UN General Assembly created the post of High Commissioner for Human Rights. (100) In February 1994, the General Assembly unanimously confirmed the nomination by Secretary-General Boutros Boutros-Ghali of Ambassador José Ayala Lasso, who had been the Ecuadorian Permanent Representative to the United Nations, as High Commissioner. (101) On April 5, 1994, High Commissioner Ayala Lasso took up his functions as overall supervisor of the UN Centre for Human Rights in Geneva and principal officer-in-charge of all UN human rights activities. (102)

Since he took office, the High Commissioner has been confronted with many challenges, including forced displacements in the former Yugoslavia, in Rwanda, and elsewhere. Speaking in Frankfurt on May 28, 1995, at a commemorative ceremony held on behalf of the Germans expelled in connection with the end of World War II, the High Commissioner called the right not to be expelled from one's homeland a fundamental right and suggested that "if in the years following the second world war states had reflected more on the implications of the enforced flight and expulsion of the Germans, today's demographic catastrophes, particularly those referred to as 'ethnic cleansing,' would, perhaps, not have occurred to the same extent." (103)



Emerging Jurisprudence



There have not yet been any domestic prosecutions of forcible population transfers. [OK?] Although states parties to the Fourth Geneva Convention are obligated to prosecute their own soldiers and commanders who are responsible for grave breaches, (104) a category into which ethnic cleansing as a form of population transfer can easily be placed, no Croatian or Serbian or Bosnian soldier or commander has thus far been tried by the judicial authorities of his own country.

However, as discussed in the following section, this offense can now be investigated and punished by the ad hoc international criminal tribunal established in 1993 by the UN Security Council to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. (105) It is to be hoped that the Tribunal will prosecute and punish not merely subordinate soldiers who have committed random offenses but, more important, those politicians responsible for the policy and systematic practice of ethnic cleansing and the terrorization of hundreds of thousands of civilians who have been forced to abandon their homelands and seek refuge elsewhere. (106)

The same Tribunal in the Hague has now been given jurisdiction over war crimes and crimes against humanity committed during the recent bloodbath in Rwanda. (107) Although the term "ethnic cleansing" has not been employed in this context, it is clear that the Hutu government's incitement of racial hatred, deliberate terror, and systematic killing against the Tutsi opposition and civilian population could well be termed ethnic cleansing.and fall under the jurisdiction of this judicial body.

Another source of international case law is likely to be the judgment of the International Court of Justice in the case brought by the Republic of Bosnia and Herzegovina against Yugoslavia, alleging violations by the latter of the International Convention on the Prevention and Punishment of the Crime of Genocide. Two interim orders under article 41 of the Statute of the International Court of Justice have been entered directing the government of Yugoslavia to undertake to prevent the commission of the crime of genocide and both parties to refrain from any action that might aggravate etheir dispute over the prevention and punishment of that crime. (108)





ETHNIC CLEANSING





Ethnic cleansing has been universally condemned in the various organs of the United Nations. Essentially, ethnic cleansing is an old crime by a new name. According to the first interim report (109) by the Commission of Experts (110) established pursuant to Security Council Resolution 780 to investigate serious violations of international humanitarian law committed in the territory of the former Yugoslavia:

The expression "ethnic cleansing" is relatively new. Considered in the context of the conflicts in the former Yugoslavia, "ethnic cleansing" means rendering an area ethnically homogenous by using force or intimidation to remove persons of given groups from the area. "Ethnic cleansing" is contrary to international law.

Based on the many reports describing the policy and practices conducted in the former Yugoslavia, "ethnic cleansing" has been carried out by means of murder, torture, arbitrary arrest and detention, extra-judicial executions, rape and sexual assaults, confinement of civilian population in ghetto areas, forcible removal, displacement and deportation of civilian population, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property. Those practices constitute crimes against humanity and can be assimilated to specific war crimes. Furthermore, such acts could also fall within the meaning of the Genocide Convention. (111)



In its final report to the Security Council, the Commission of Experts concluded that ethic cleansing is a deliberate policy to instill terror so as to induce persons to flee. (112) Thus, the term embraces the denial of the right to a homeland through compulsory population transfer. The coercive means used to remove the civilian population, of Bosnia and Herzegovina in particular, have included



mass murder, torture, rape and other forms of sexual assault; severe physical injury to civilians; mistreatment of civilian prisoners and prisoners of war; use of civilians as human shields; destruction of personal, public and cultural property; looting, theft and robbery of personal property; forced expropriation of real property; forceful displacement of civilian population; and attacks on hospitals, medical personnel and locations marked with the Red Cross/Red Crescent emblem. (113)



In the view of the Commission of Experts, then, ethnic cleansing in the former Yugoslavia can be prosecuted as a crime against humanity, a war crime, and/or genocide. Many agree that ethnic cleansing constitutes genocide within the meaning of the Genocide Convention. (114) This is the argument of the Bosnian government before the International Court of Justice, but the case is not expected to be heard on the merits until late in 1996, nor have the Court's provisional orders had any deterrent effect. (115)



United Nations Commission on Human Rights



The UN Commission on Human Rights has devoted considerable resources to the problem of ethnic cleansing and in 1992 held two special sessions on the crisis in the former Yugoslavia. At this time, the commission appointed the former Prime Minister of Poland, Tadeusz Mazowiecki, Special Rapporteur for the Former Yugoslavia. (116) The evidence he has assembled should prove useful in the prosecution of crimes that have been planned and carried out to achieve ethnic cleansing in the region.

In his report of November 17, 1992, Special Rapporteur Mazowiecki stated: "The term 'ethnic cleansing' refers to the elimination by the ethnic group exerting control over a given territory of members of other ethnic groups." (117) In his second periodic report, Mazowiecki stated "that the principal objective of the military conflict in Bosnia and Herzegovina is the establishment of ethnically homogenous regions. Ethnic cleansing does not appear to be a consequence of the war but rather its goal." (118) In his third periodic report, he explained that "the continuation of ethnic cleansing is a deliberate effort to create a fait accompli in flagrant disregard of international commitments entered into by those who carry out and benefit from ethnic cleansing." (119)

In his sixth periodic report, submitted early in 1994, (120) the special rapporteur described various manifestations of ethnic cleansing and population transfers, in particular, the terrorization of Bosnian Muslims and Bosnian Croats in Serb-held territory. He reiterated "his outright condemnation of such practices which violate fundamental human rights including the right to life, integrity of the person, property, privacy and family life, freedom of thought, conscience, religion and of movement, to earn one's livelihood, to nationality, and rights as a member of an ethnic or cultural group." (121) Mazowiecki deplored the escalation of ethnic cleansing observed in Banja Luka, where Muslim and Croat tenants have been summarily evicted from their apartments in overwhelming numbers.According to his report, almost all non-Serbs have now lost their jobs in Banja Luka, and it is estimated that only 3 percent of non-Serbs continue to hold employment within the territories administered by the Bosnian Serbs. The Serb authorities in Banja Luka have even removed the physical traces of the Muslim community through the demolition of all of the municipality's 202 mosques. (122) In the same report, Mazowiecki focused attention on the terrorization of Bosnian Muslims and Bosnian Serbs in Bosnian Croat-held territory, in particular Mostar. "A result of the 'ethnic cleansing' of Serbs is that their population in Mostar has been reduced from a pre-war figure of 30,000 to just 400." (123) He also deplored the killing in Mostar on October 18, 1993, of a well-known Muslim doctor and members of her family, apparently by Bosnian Croat Defense Forces. (124)

According to the special rapporteur, displacement of populations has been effected by three means: involuntary population exchanges between municipalities under the control of opposing belligerents; private arrangements for emigration to the territory of another belligerent; and, least commonly, the forced and immediate expulsion of communities from their places of residence. The various forms of displacement are often accompanied by extortion and theft. Thus, for instance, displaced persons leaving Serb-held territory are routinely subjected to strip searches at the frontier and to the confiscation of all their valuables, and many refugees have suffered rape and other very serious violations in the context of expulsions. (125)

The Committee on the Elimination of Racial Discrimination has also had the opportunity of examining the situation in the former Yugoslavia. Besides condemning ethnic cleansing as a crime, it has admonished the government of the Federal Republic of Yugoslavia (Serbia and Montenegro) for its lack of cooperation with the committee, as a consequence of which Yugoslavia was suspended from the work of the seventeenth meeting of the states parties to the International Convention on the Elimination of All Forms of Racial Discrimination in January 1994. [I'll have to add a NEW NOTE once placement of paragraph is determined -- please supply appropriate reference] Although it has been repeatedly asked, the Federal Republic of Yugoslavia has refused to present the eleventh, twelfth, and thirteenth periodic reports on implementation that are required under the convention.



International Criminal Tribunal for the Former Yugoslavia



Unlike the International Military Tribunal at Nuremberg, which was established by treaty, (126) the International Criminal Tribunal for the Former Yugoslavia was created by decision of the Security Council (127) upon the recommendation of the Secretary-General of the United Nations. (128) The Tribunal is composed of eleven judges. (129) By Resolution 936 of July 8, 1994, the Security Council appointed Judge Richard J. Goldstone of the appellate division of the South African Supreme Court as chief prosecutor. (130)

From an international law perspective, the most visible and innovative aspect of the Secretary-General's report on the creation of the Tribunal was to establish it under chapter VII of the UN Charter, (131) which gives the Security Council broad responsibility for maintaining and restoring international peace and security. (132) The Tribunal's character as an enforcement measure under chapter VII, following a determination by the Security Council that the armed conflict in the territory of the former Yugoslavia constituted a threat to the peace, (133) limits the Tribunal's territorial jurisdiction to the boundaries of the former Socialist Federal Republic of Yugoslavia. (134) Temporal jurisdiction begins on January 1, 1991, (135) a "neutral date which is not tied to any specific event" (136) but is the beginning of the year in which armed conflict broke out in the region, as one republic after another declared its independence. (137) Temporal jurisdiction is intended to end with respect to crimes under the Tribunal's jurisdiction committed after a "date to be determined by the Security Council upon the restoration of peace." (138)

The establishment of the Tribunal under chapter VII has an important practical effect. An arrest warrant issued by the Tribunal (139) would be considered in most national legislation a request for extradition, which, as such, may be refused on the ground of the nationality of the accused or other rule of domestic law. This, indeed, has been the position of the Federal Republic of Yugoslavia, which has refused to extradite its own citizens because this would contravene its constitution. (140) Notwithstanding "any legal impediment" to the surrender of persons indicted by the Tribunal "which may exist under the national law or extradition treaties of the State concerned," such requests are binding under chapter VII of the UN Charter and have priority over national legislation. (141)

With regard to personal jurisdiction and general principles of criminal liability, the Statute of the Tribunal rejects the notion of guilt by association implicit in the crime of membership in a hierarchical structure such as the armed forces of Yugoslavia or Croatia. Individual criminal responsibility is attributed, under article 7(1) of the Statute, to any person who "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime" falling within the jurisdiction of the Tribunal, whether as a principal or as an accomplice. Following the Nuremberg and Tokyo (Yamashita) principles, the Statute provides that superior orders do not constitute a defense; (142) conversely, a superior officer who knew or had reason to know that persons in positions of subordinate authority to him were about to commit any of the crimes within the Tribunal's jurisdiction, or had already committed such crimes, and who failed to take the necessary and reasonable steps to prevent or to punish their commission, is held individually responsible. (143) Head of state immunity is not available. (144)

The Tribunal's subject matter jurisdiction is set out in articles 2-5 of the Statute: grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity. (145) In conformity with the principle of nullum crimen sine lege, these are all offenses prohibited by "rules of international humanitarian law which are beyond any doubt part of customary law" and binding on everyone. (146)

Although ethnic cleansing as such is not specifically criminalized in the Statute, the acts by which it has been effected can be subsumed under the above breaches of international humanitarian law. As documented by the Commission of Experts, ethnic cleansing "has been carried out by means of murder, torture, arbitrary arrest and detention, extra-judicial executions, rape and sexual assaults, confinement of civilian population in ghetto areas, forcible removal, displacement and deportation of civilian population, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property." (147) In this context, Security Council Resolution 941 is clear, in that it "[s]trongly condemns all violations of international humanitarian law, including in particular the unacceptable practice of 'ethnic cleansing' perpetrated in [areas in Bosnia] under the control of Bosnian Serb forces, and reaffirms that those who have committed or have ordered the commission of such acts will be held individually responsible in respect of such acts." (148)

A judgment by the International Tribunal specifically condemning ethnic cleansing as a crime against humanity, or under any of the other substantive provisions of the Statute, would be both just and desirable for the further development of international law and would go far toward demonstrating the peremptory character of the right to one's homeland.



Proceedings to Date



As of September 6, 1995, the office of the prosecutor had issued indictments and warrants for the arrest of 43 individuals on charges of having committed serious violations of international humanitarian law in the former Yugoslavia. The accused in the first indictment is a Bosnian Serb charged with grave breaches of the Geneva Conventions, crimes against humanity, and violations of the laws or customs of war in connection with murders, torture, inhumane acts, cruel or inhuman treatment, and other offenses committed by himself and subordinates against Muslims held at the Susica death camp in Bosnia in 1992. (149) The accused has not been surrendered to the Tribunal, which on October 20, 1995, issued an international warrant for his arrest under proceedings completed pursuant to Rule 61 of the Tribunal's Rules of Procedure and Evidence. (150) This rule permits the trial chamber to receive evidence against a defendant in case of "failure to execute a warrant" and to issue an international arrest warrant if satisfied that "there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment." (151) OK??

The accused in the second (152) and third indictments (153) are Serb or Bosnian Serb camp commanders, guards, and visitors associated with the Omarska death camp in Bosnia. The victims were Muslims and Croats who were held under armed guard in brutal conditions. Detainees were murdered, raped, sexually assaulted, severely beaten, and otherwise mistreated. One of the accused, Dusan Tadic, is charged not only with abuses inside the camp but also with terrorizing and killing Muslim civilians outside the camp, in pursuance of the policy of ethnic cleansing, with an aim to forcing non-Serbs to flee their homes and communities. The indictments allege the following crimes against some or all of the accused: genocide, crimes against humanity, violations of the laws or customs of war, grave breaches of the Geneva Conventions of 1949, and command responsibility for the foregoing crimes. Additional charges were brought against Tadic in September 1995 involving crimes against humanity and grave breaches of the Geneva Conventions, based on allegations of murder, torture, and rape at three internment camps and "deportation" of Muslim and Croat residents of the Prijedor area. (154)

On August 10, 1995, the Trial Chamber seized of the Tadic case ruled against a defense motion challenging the jurisdiction of the Tribunal. (155) This ruling was affirmed on different grounds on October 2, 1995. (156)

For purposes of this article, the most important indictment is that jointly brought against Radovan Karadzic, president of the Bosnian Serb administration in Pale, and the Bosnian Serb military commander, Ratko Mladic, issued on July 25, 1995. (157) Counts 1-2 charge genocide and crimes against humanity. Paragraph 19 of the indictment alleges the "unlawful deportation and transfer of civilians" as one of the predicate offenses supporting the charge of crimes against humanity. More specifically, paragraph 25 alleges:



Thousands of Bosnian Muslims and Bosnian Croats from the areas of Vlasenica, Prijedor, Bosanski Samac, Brcko and Foca, among others, were systematically arrested and interned in detention facilities established and maintained by the Bosnian Serb military, police and their agents and thereafter unlawfully deported or transferred to locations inside and outside of the Republic of Bosnia and Herzegovina. In addition, Bosnian Muslim and Bosnian Croat civilians, including women, children and elderly persons, were taken directly from their homes and eventually used in prisoner exchanges by Bosnian Serb military and police and their agents under the control and direction of Radovan Karadzic and Ratko Mladic. These deportations and others were not conducted as evacuations for safety, military necessity or for any other lawful purpose and have, in conjunction with other actions directed against Bosnian Muslim and Bosnian Croat civilians, resulted in a significant reduction or elimination of Bosnian Muslims and Bosnian Croats in certain occupied regions.



As noted earlier, Karadzic and Mladic have also been indicted for genocide in connection with the Bosnian Serb attack on Sreberenica in the summer of 1995. Although it is unclear whether Karadzig or Mladic will appear before the Tribunal in the near future, it is of considerable historical, legal and psychological importance that the Tribunal has branded their actions criminal, in particular, the policy of forced population transfers.

In the fall of 1995 and winter of 1996, the Tribunal is expected to issue indictments against a number of Croats. As of September 1995, one Croat national, the military commander Ivica Rajic, had been indicted on charges of grave breaches of the Geneva Convention in connection with an attack on the Muslim village of Stupni Do in central Bosnia in October 1993. (158) At least sixteen Muslim civilians were killed and the remaining 230 Muslim civilians were forced to flee. At the time of the indictment, Rajic was being held by the Croatian authorities at a prison in Mostar on unrelated charges and he is likely to be surrendered to the Tribunal. (159)

Meanwhile, Serbian Yugoslav authorities have accused the Croatian government of carrying out a policy of ethnic cleansing not only against the ethnic Serb population of Croatia but also against the Bosnian Muslims. These accusations must, of course, be investigated. In particular, on August 4, 1995, the Croatian government launched a broad military offensive in the Croatian Krajina, which for centuries has been populated primarily by ethnic Serbs. Reportedly some 150,000 Serbs fled the area in panic. (160) On the basis of testimonial and other evidence of violations of international humanitarian law in the Krajina, the Security Council, on August 10, 1995, adopted Resolution 1009, which demands that



the Government of the Republic of Croatia, in conformity with internationally recognized standards and in compliance with the agreement of 6 August 1995 between the Republic of Croatia and the United Nations Peace Forces (a) respect fully the rights of the local Serb population including their rights to remain, leave or return in safety, (b) allow access to this population by international humanitarian organizations, and (c) create conditions conducive to the return of those persons who have left their homes. (161)

The resolution reiterates that "all those who commit violations of international humanitarian law will be held individually responsible in respect of such acts." (162) Security Council Resolution 1009 is an important assertion of the right to a homeland and the concomitant right to return. [OK?]





REMEDIES AND CODIFICATION





The compulsory transfer of populations has been shown to violate important rules and principles of international law, whether committed in time of war or in time of peace. It is not enough, however, to recognize that forcible population transfers, and ethnic cleansing in particular, constitute a historical aberration, an anachronism in light of the human rights covenants and the Genocide Convention, a crime against humanity and a war crime within the meaning of the Nuremberg judgment. The question of remedies for victims must be addressed, (163) specifically, implementation of the right to return. Admittedly, any scheme of restitutio in integrum poses grave practical and political difficulties, but with good faith and sufficient determination on all sides, the rights of competing claimants to territory should be reconcilable.

In December 1948, the UN General Assembly resolved that Palestinian refugees should be permitted to return to their homes in Israel:



[T]he refugees wishing to return to their homes and live in peace with their neighbours should be permitted to do so at the earliest practicable date, and . . . compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible. (164)



This resolution has been repeatedly affirmed by the General Assembly (165) and the UN Commission on Human Rights with regard to the Palestinians. (166) Similar language can be found in relevant General Assembly resolutions on Afghanistan, Cambodia, and Cyprus. (167)

More recently, in addressing the situation of human rights in the territory of the former Yugoslavia, the General Assembly, the Securty Council and the Secretary-General have repeatedly affirmed the right of all persons to return to their homes in safety and dignity. This right has been endorsed in the UN peacekeeping plan for the Republic of Croatia, (168) in the Secretary-General's report to the Security Council of December 1, 1994, (169) and in numerous Security Council resolutions, including Resolution 947, which "[a]ffirms the right of all displaced persons to return voluntarily to their homes of origin in safety and dignity with the assistance of the international community," (170) and Resolution 1009, concerning the Krajina. (171) As noted earlier, the right to return has been similarly recognized by the Committee on the Elimination of Racial Discrimination (172) and by the Subcommission on Prevention of Discrimination and Protection of Minorities. (173)

The right to return has been recognized at the regional level as well. Over a decade ago, the Inter-American Commission on Human Rights informed Nicaragua that the refusal to allow the return of Miskito Indians to their ancestral lands upon expiry of the state of emergency would amount to an impermissible restriction of movement and choice of residence, (174) in violation of the American Convention on Human Rights. (175)

In the European context, President Lennart Meri of Estonia noted in an official statement issued on October 3, 1995, the significant economic and cultural contribution of ethnic Germans to the Baltic states for the seven centuries of their residence in Estonia, Latvia, and Lithuania and invited persons who had been ousted pursuant to the Hitler-Stalin pact of 1939, and their descendants, to resettle in Estonia and take Estonian citizenship. President Meri referred to the right to a homeland as a "fundamental norm of the European order" and stated that Baltic Germans would be able to exercise this right in Estonia. (176)

The experience of ethnic cleansing in the former Yugoslavia constitutes a major setback to the effort on the part of the international community to protect the right to a homeland. In light of the international challenge posed by ethnic cleansing and other examples of forced displacement of populations, unambiguous affirmation in a treaty of the right to a homeland as a fundamental human right appears necessary. The world community must repudiate the use of forced population transfers as a solution to minority conflicts or as a part of peacemaking. One possibility is a protocol to the International Covenant on Civil and Political Rights. Another alternative would be a prohibition on collective expulsions, which could take the form of a multilateral convention. Neither approach is likely to put an end to the practice of expulsion as an instrument of national policy, just as the criminalization and prosecution under the Nuremberg Charter of waging an aggressive war has not ended war. Nevertheless, bringing to the attention of the world public the crime of mass expulsion may lessen its incidence. The developments in the Subcommission on Prevention of Discrimination and Protection of Minorities give reason for some optimism that such an instrument will be drafted, and the declaration proposed by Special Rapporteur Al-Khasawneh (177) could constitute an initial draft. It is also to be hoped that the International Criminal Tribunal for the Former Yugoslavia will obtain personal jurisdiction over and convict those responsible for the crime of ethnic cleansing, not only those persons who have carried out aspects of the policy but, more important, its intellectual authors.

1. Senior Human Rights Officer for Complaints Procedures under the Human Rights Committee, Committee against Torture, and Committee on the Elimination of Racial Discrimination, United Nations Office at Geneva, Switzerland; J.D., Harvard University 1970; Ph.D., University of Göttingen 1977.

 

2. 1 The term "right to a homeland," Recht auf die Heimat, was coined by German legal scholars and publicists in the 1950s and 1960s. For a recent discussion, see Das Recht auf die Heimat: Ein Menschenrecht (Hartmut Koschyk ed., 1992). The standard work is Otto Kimminich, Das Recht auf die Heimat (1978); see also F.H.E.W. du Buy, Das Recht auf die Heimat im historisch-politischen Prozess (1974); Christian Tomuschat, Das Recht auf die Heimat, neue rechtliche Aspekte, in Das menschen Recht zwischen Freiheit und Verantwortung: Festschrift für Karl Josef Partsch zum 75, at 183 (Jürgen Jekewitz ed., 1989); Felix Ermacora, Die sudetendeutschen Fragen: Rechtsgutachten (1992); Das Recht auf die Heimat (Kurt O. Rabl ed., 1959).



please check Tomuschat cite for caps, spelling

3. 2 The so-called international bill of rights includes Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948) [hereinafter Universal Declaration]; International Covenant on Economic, Social, and Cultural Rights, adopted Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 1, 1976) [hereinafter International Covenant on Economic Rights]; International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 3, 1976) [hereinafter International Covenant]. One could argue that this right is implicit in id. art. 12(4), which protects the right to "enter" one's own country.

4. 3 Support for this view can be found in Ian Brownlie, Principles of Public International Law 515 (3d ed. 1979); Hector Gros-Espiell, Self-determination and Jus Cogens, in U.N. Law/Fundamental Rights 167 (Antonio Cassese ed., 1979). This view also has its critics. For a good discussion of the debate and references, see Ralph Steinhardt, Book Review, 88 Am. J. Int'l L. 831 (1994) (reviewing several recent works on self-determination). OK?

5. 4 International Covenant, supra note 2.

6. 5 International Covenant on Economic Rights, supra note 2.

7. 6 Adopted Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter Convention on Racial Discrimination].

8. 7 Adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention].

9. 8 G.A. Res. 47/135, U.N. GAOR, 47th Sess., Supp. No. 49, at 210, U.N. Doc. A/47/49 (1992) [hereinafter Declaration on Minorities].

10. 9 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted Aug. 12, 1949, art. 49, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention IV].

11. 10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II), adopted June 8, 1977, art. 17, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II].

12. 11 The International Military Tribunal at Nuremberg was established pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279 [hereinafter London Agreement]. The Charter of the International Military Tribunal at Nuremberg is set out in id. at 284 [hereinafter Nuremberg Charter]. War crimes were prosecuted under Nuremberg Charter, supra, art. 6(b); crimes against humanity, under id. art. 6(c). For the judgment of the International Military Tribunal, see 22 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945-1 October 1946, at 411 (1948) [hereinafter Trial of the Major War Criminals].



do you want to cite illustrative portions (pages) of judgment?

13. 12 It appears that the term was coined in the early 1980s by the Serbian ultranationalist leader Vojislav Sesselj. But it was only after the outbreak of hostilities in 1991 that the term attained its sad notoriety. The best analysis of the term and its history may be found in Drazen Petrovic, Ethnic Cleansing--An Attempt at Methodology, 5 Eur. J. Int'l L. 342 (1994).

14. 13 For background, see the essays collected in A Critical Study of the International Tribunal for the Former Yugoslavia, 5 Crim. L.F. 223 (1994).

15. 14 The Statute of the International Criminal Tribunal for the Former Yugoslavia [hereinafter ICTY Statute] is set out as an annex to Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993), reprinted in 32 I.L.M. 1163, 1192, and 5 Crim. L.F. 597, 636 (1994) [hereinafter Secretary-General's Report].

16. 15 Sabrina Petra Ramet, War in the Balkans, Foreign Aff., Fall 1992, at 79, 81.

17. 16 In this regard, see the following reports on The Situation of Human Rights in the Territory of the Former Yugoslavia, prepared by Tadeusz Mazowiecki, Special Rapporteur, U.N. Comm'n Hum. Rts. U.N. Doc. E/CN.4/1992/S-1/9 (1992); U.N. Doc. E/CN.4/1992/S-1/10 (1992); U.N. Doc. A/47/666 (U.N. Doc. S/24809) (1992); U.N. Doc. E/CN.4/1992/S-2/6 (1992); U.N. Doc. E/CN.4/1993/50 (1993); U.N. Doc. E/CN.4/1994/3 (1993) (first periodic report); U.N. Doc. E/CN.4/1994/4 (1993) (second periodic report); U.N. Doc. E/CN.4/1994/6 (1993) (third periodic report); U.N. Doc. E/CN.4/1994/8 (1993) (fourth periodic report); U.N. Doc. E/CN.4/1994/47 (1993) (fifth periodic report); U.N. Doc. E/CN.4/1994/110 (1994) (sixth periodic report); U.N. Doc. E/CN.4/1995/4 (1994) (seventh periodic report); U.N. Doc. E/CN.4/1995/10 (1994) (eighth periodic report); U.N. Doc. A/49/641 (U.N. Doc. S/1994/1252) (1994) (ninth periodic report); U.N. Doc. E/CN.4/1995/54 (1994) (special report on media); U.N. Doc. E/CN.4/1995/57 (1995) (tenth periodic report).

On July 27, 1995, Tadeusz Mazowiecki resigned his post in protest against United Nations and world inaction in the face of Bosnian Serb attacks on the United Nations protected areas (UNPAs) of Srebrenica and Zepa. U.N. Envoy in Bosnia Quits at "Hypocrisy," Herald Trib., July 28, 1995, at 1. is this Int'l Herald Trib?



I was able to "number" the periodic reports from various bibliographic sources/should we do the same for the "regular" reports, which I couldn't sort out/also OK title as styled?

18. 17 Treaty of Peace (Lausanne), July 24, 1923, 28 L.N.T.S. 11.

19. 18 Convention and Protocol on the Exchange of Populations, Greece-Turk., Jan. 30, 1923, 32 Recueil des traités 76.



is this Martens Nouveau recueil? if so, please add "series number": 00 Martens Nouveau Recueil (ser. ?) 000

20. 19 Treaty of Peace, supra note 17, art. 142, incorporated by reference the bilateral agreement on population exchange cited supra note 18. At his memorable address of February 11, 1918, before the joint Houses of Congress, President Woodrow Wilson had insisted that "peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discarded, of the balance of power." 1 Foreign Relations of the United States 112 (Supp. I 1918).



is this relevant: Advisory Opinion No. 10, Exchange of Greek and Turkish Populations, 1925 P.C.I.J. (ser. B) No. 10.

21. 20 Quoted in 130 Parl. Deb., H.L. (5th ser.) 1120 (1944) (speech of Lord Noel-Buxton); Georgios S. Streit, Der Lausanner Vertrag 24 (1929). [quoted in Streit, too? or is this a discussion?] [ICTY refers to a Noel-Burton, so please check name]

22. 21 139 Parl. Deb., H.L. (5th ser.) 68 (1946).

23. 22 Indeed, even in the 1940s Winston Churchill spoke approvingly of this arrangement. 406 Parl. Deb., H.C. (5th ser.) 1484 (1944). OK ADD?

24. 23 how about:

See generally Stephen P. Ladas, The Exchange of Minorities: Bulgaria, Greece, and Turkey (1932); Kalliopi A. Koufa & Constantinos Svolopoulos, The Compulsory Exchange of Populations between Greece and Turkey: The Settlement of Minority Questions at the Conference of Lausanne, 1923, and Its Impact on Greek-Turkish Relations, in Ethnic Groups in International Relations 275 (Paul Smith et al. eds., 1991).

25. 24 See infra text accompanying note 175.

26. 25 would an appropriate general historical discussion of this area be



Alfred de Zayas, Nemesis at Potsdam [pages or chapter cite] (4th ed. 1990); [and/or] Eugene M. Kulischer, Europe on the Move 282-86 (1948).

27. 26 How about: Detlev F. Vagts, International Law in the Third Reich, 84 Am. J. Int'l L. 661 (1990).

28. 27 4 The Geneva Conventions of 12 August 1949: Commentary 279 (Jean S. Pictet gen. ed., 1958).

29. 28 Nuremberg Charter, supra note 11, art. 6(b), (c). OK? cite trials as well, or maybe discussion below of counts 3 & 4?

30. 29 Hague Convention (IV) Respecting the Laws and Customs of War on Land, and Annex to the Convention (Regulations Respecting the Laws and Customs of War on Land), Oct. 18, 1907, 205 Consol. T.S. 227, reprinted in Documents on the Laws of War 44 (Adam Roberts & Richard Guelff eds., 2d ed. 1989).

31. 30 should reference be Nemesis at Potsdam (supra note 25)? please give chap. or page cite

32. 31 Protocol of Proceedings of the Berlin (Potsdam) Conference, Aug. 2, 1945, art. VIII, 3 Bevans 1207.



please note: I changed article number because they were RENUMBERED in final text of Protocol (see Bevans text or footnotes in Foreign Relations of the United States, 2 The Conference of Berlin (Potsdam), 1945) & I changed cite to standard treaty source

33. 32 Id. art. XII.

34. 33 cite appropriate pages in Nemesis/supra note 25

35. 34 Genocide Convention, supra note 7.

36. 35 Statistisches Bundesamt, F.R.G., Die deutschen Vertreibungsverluste 00 (1958); Alfred de Zayas, International Law and Mass Population Transfers, 16 Harv. Int'l L.J. 207, 000 (1975). See supra notes 30-33 and accompanying text.



please give page refs if poss./maybe these refs should be given in note 30 and/or 33 and just supra'd here?

37. 36 Universal Declaration, supra note 2.

38. 37 Geneva Convention IV, supra note 9, art. 49.

39. 38 Additional Protocol II, supra note 10, art. 17(1). On the history of this article, see Howard S. Levie, The Law of Non-international Armed Conflict: Protocol II to the 1949 Geneva Conventions 529-43 (1987).

40. 39 International Covenant, supra note 2. It should be noted that the Republic of Bosnia and Herzegovina (Sept. 1, 1993), Croatia (Oct. 12, 1992), and (the former) Yugoslavia (Aug. 8, 1967) are parties to the covenant. Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1994, at 117-18, U.N. Doc. ST/LEG/SER.E/13, U.N. Sales No. E.95.V.5 (1995) [hereinafter 1994 Multilateral Treaties].



what about "new" Yugo?



Roger points out that your reference to Israel doesn't make sense at this point, unless you link it to the question of the occupied territories--I moved it to note 163

41. 40 See supra note 3 and accompanying text.

42. 41 Alfred de Zayas, Population, Expulsion and Transfer, in 8 Encyclopedia of Public International Law 438, 440 (Rudolf Bernhardt ed., 1985); Daniel Thürer, Self-determination, in 8 Encyclopedia of Public International Law, supra, at 470; Antonio Cassese, The Self-determination of Peoples, in The International Bill of Rights 92 (Louis Henkin ed., 1981); Models of Autonomy (Yoram Dinstein ed., 1981).

43. 42 International Covenant, supra note 2, arts. 6-8, 18, are discussed below. The other nonderogable rights are as follows. Id. art. 11 provides, "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." Id. art. 15 mandates adherence to the nullum crimen principle but also stresses that a crime may be prosecuted if it is created under the "general principles of law recognized by the community of nations." According to id. art. 16, "Everyone shall have the right to recognition everywhere as a person before the law." ok?

44. 43 Diane Bartz, Ethnic Cleansing Goal Being Achieved, Agence France Presse, Sept. 27, 1995, available in LEXIS, World Library, Allnws File; Bosnia Enters Fourth Year of War with Remembrances and Battles, N.Y. Times, Apr. 6, 1995, at A8, available in LEXIS, World Library, Allnws File [hereinafter Fourth Year of War]. An estimated additional 400,000 people have been injured. Bosnian Health Conditions Improved But Still Poor: WHO, Agence France Presse, Apr. 13, 1995, available in LEXIS, World Library, Allnws File (citing a World Health Organization report) [hereinafter WHO Report]. ok?

45. 44 See generally Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmitting Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992) [hereinafter Final Report]; CSCE Rapporteurs (Corell-Turk-Thune), Moscow Human Dimension Mechanism to Bosnia, Herzegovina, and Croatia, Proposal for an International War Crimes Tribunal for the Former Yugoslavia (1993); Dep't of State, U.S., Supplemental United States Submission of Information to the United Nations Security Council in Accordance with Paragraph 5 of Resolution 771 (1992) and Paragraph 1 of Resolution 780 (1992), U.N. Doc. S/24705 (1992); Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch, War Crimes in Bosnia-Herzegovina (1992). OK?

46. 45 This was the official term used by Prime Minister Winston Churchill, President Franklin D. Roosevelt, and Premier Josef Stalin in their agreement on reparations at Yalta. Protocol of the Crimea (Yalta) Conference on the Question of the German Reparation in Kind, Feb. 11, 1945, art. 1(c), 3 Bevans 1020 ("Reparation in kind is to be exacted from Germany in three following forms: . . . (c) Use of German labour."); see Alfred de Zayas, A Terrible Revenge 116-24 (1994). OK?

47. 46 Davor Huic, Serb Expulsions of Muslims Go into High Gear, Reuters, Sept. 3, 1994, available in LEXIS, World Library, Allnws File. OK?

48. 47 Chris Hedges, 2 Officials Report New Mass Killings by Bosnian Serbs, N.Y. Times, Oct. 20, 1995, at A1, available in LEXIS, World Library, Allnws File; see also Mike O'Connor, Bosnian Village Fears 500 Captives Were Killed by Serbs, N.Y. Times, Oct. 16, 1995, at A3, available in LEXIS, World Library, Allnws File. ok?

49. 48 1 International Comm. of the Red Cross, Report on Activities during the Second World War, September 1, 1939-June 30, 1947, at 675 (1948); Senate, U.S., Evacuation and Concentration Camps in Silesia, 92 Cong. Rec. A4778 (1946); H.G. Adler, Theresienstadt 1941-1945, at 214 (1955); de Zayas, supra note 45, at 93-108; John Sack, An Eye for an Eye (1993); 4 Theodor Schieder, Documents on the Expulsion of the Germans from Eastern-Central Europe 76 (1960); Alfred de Zayas, The Legality of Mass Population Transfers: The German Experience, 1945-48 (pts. 1 & 2), 12 E. Eur. Q. 1, 143 (19??). [please complete last cite]

50. 49 See Awn Shawhat Al-Khasawneh, Special Rapporteur, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities [hereinafter U.N. Subcomm'n Discrim. & Minor.], The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Progress Report, U.N. Doc. E/CN.4/Sub.2/1994/18, 17 (1994) (noting that "[a]ny form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation, directly affects the enjoyment or exercise of the right to free movement and choice of residence within States and constitutes a restriction upon this right"); see also Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, U.N. Doc. A/47/509, at 139-43, 154-64 (1992) [hereinafter Israeli Human Rights Practices]; de Zayas, supra note 25 [Nemesis], ch. 6; Alfred de Zayas, The Illegality of Population Transfers and the Application of Emerging International Norms in the Palestinian Context, 6 Palestine Y.B. Int'l L. 17 (1990).



please check U.N. Doc. A/47/509 -- this is designated a "note" in UN document index but there are quite a few "reports" carrying numbers close to 509

51. 50 Fourth Year of War, supra note 43; Bartz, supra note 43. Over a million refugees are living abroad. Fourth Year of War, supra. ok?

52. 51 WHO Report, supra note 43. ok?

53. 52 de Zayas, supra note 49. [cite specific pages?] In S.C. Res. 607, U.N. SCOR, 43d Year, 1988 S.C. Res. & Dec. at 1, U.N. Doc. S/INF/44 (1988); S.C. Res. 608, U.N. SCOR, 43d Year, 1988 S.C. Res. & Dec. at 2, U.N. Doc. S/INF/44 (1988); S.C. Res. 636, U.N. SCOR, 44th Year, 1989 S.C. Res. & Dec. at 14, U.N. Doc. S/INF/45 (1989); S.C. Res. 641, U.N. SCOR, 44th Year, 1989 S.C. Res. & Dec. at 14, U.N. Doc. S/INF/45 (1989); S.C. Res. 681, U.N. SCOR, 45th Year, 1990 S.C. Res. & Dec. at 8, U.N. Doc. S/INF/46 (1990); S.C. Res. 694, U.N. SCOR, 46th Year, 1991 S.C. Res. & Dec. at 2, U.N. Doc. S/INF/47 (1991); S.C. Res. 726, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 5, U.N. Doc. S/INF/48 (1992); S.C. Res. 799, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 6, U.N. Doc. S/INF/48 (1992), the Security Council expressed its condemnation of the deportation of Palestinian civilians from the occupied territories.

54. 53 See Robert Wright, How Kosovo Set the Serbian Agenda, The Scotsman, Aug. 18, 1995, at 13, available in LEXIS, World Library, Allnws File (discussing Milosevic speech of June 28, 1989, outlining a policy of creating a greater Serbia that extends into Bosnia and Croatia). ok?

55. 54 The American poet Henry Wadsworth Longfellow (1807-1882) immortalized in his epic poem Evangeline the 1755 expulsion of 15,000 Acadian farmers of French descent, whom the British governor of Nova Scotia (Canada) considered to be of doubtful loyalty to the British crown. These peaceful farmers, who had settled in Acadia a century before, were laden onto ships, husbands separated from their wives and children, and deported to other British colonies. Many never saw each other again. I thought they were deported to other FRENCH colonies?

56. 55 Survivors "told of how men and boys were torn from their families during the UN-escorted evacuation [of Srebrenica]. One woman . . . said Bosnian Serb soldiers tore her son from her arms and 'just slit his throat. They killed him.'" Elizabeth Neuffer, Groups Says U.N. Failed to Protect Bosnia Haven, Boston Globe, Oct. 10, 1995, at 9, available in LEXIS, World Library, Allnws File (citing Human Rights Watch/Helsinki Watch report of 8,500 men and boys missing from Srebrenica after being separated from their families); see Stephen Engelberg et al., Srebrenica: The Days of Slaughter, N.Y. Times, Oct. 29, 1995, at 1, available in LEXIS, World Library, Allnws File (reconstructing the massacres from survivors' accounts); Eric Schmitt, Spy Photos Indicate Mass Grave at Serb-Held Town, U.S. Says, N.Y. Times, Aug. 10, 1995, at A1, available in LEXIS, World Library, Allnws File. ok?

57. 56 Hedges, supra note 47; O'Connor, supra note 47. OK?

58. 57 Declaration on Minorities, supra note 8, goes further than International Covenant, supra note 2, art. 27. In its preamble, the declaration recognizes that the promotion and protection of the rights of minorities contributes to the political and social stability of states in which such persons live and to the strengthening of friendship and cooperation among peoples and states. The declaration calls upon states to encourage conditions for the promotion of the national or ethnic, cultural, religious, and linguistic identity of minorities and to take all necessary measures to ensure that minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. In 1995, the UN Economic and Social Council (ECOSOC) established a five-member Working Group on Minorities, which reports to the Subcommission on Prevention of Discrimination and Protection of Minorities. The working group held its first session in August 1995. citation for establishment of working group?

59. 58 International Covenant on Economic Rights, supra note 2; see Danilo Türk, Special Rapporteur, U.N. Subcomm'n Discrim. & Minor., The Realization of Economic, Social, and Cultural Rights: Progress Report, U.N. Doc. E/CN.4/Sub.2/1990/19 (1990); Danilo Türk, Special Rapporteur, U.N. Subcomm'n Discrim. & Minor., The Realization of Economic, Social, and Cultural Rights: Final Report, U.N. Doc. E/CN.4/Sub.2/1992/16 (1992).

60. 59 E.g., Israeli Human Rights Practices, supra note 49, at 165-71.



what about a reference to the long-term psychological impact of the Holocaust: Ya'el Danieli, Differing Adaptational Styles in Families of Survivors of the Nazi Holocaust (1981) or Abraham J. Peck, The Children of Holocaust Survivors (1983)

61. 60 Convention on Racial Discrimination, supra note 6.

62. 61 Id. art. 1(1).

63. 62 Id. arts. 2, 4-7.

64. 63 Report Submitted by Bosnia and Herzegovina pursuant to a Special Decision Taken by the Committee [on the Elimination of Racial Discrimination], U.N. Doc. CERD/C/247/Add.1 (1993).

65. 64 U.N. Doc. CERD/C/46/Misc.14/Rev.2 (1995) (emphasis added). paragraph or page cite for quotation? do these "observations" appear in a larger report, the title of which should be given?

66. 65 U.N. Comm. on the Elimination of Racial Discrimination Dec. 2 (47), U.N. Doc. CERD/C/47/Misc.15/Rev.1 (1995).

page or paragraph citation for quote

67. 66 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Eur. T.S. 5 (entered into force Sept. 3, 1953).

68. 67 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 16, 1963, art. 3, Eur. T.S. 46? (entered into force May 2, 1968). can you verify treaty number?

69. 68 Id. art. 4.

70. 69 American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July 18, 1978).

71. 70 Banjul (African) Charter on Human and Peoples' Rights, adopted June 27, 1981, art. 12(5), O.A.U. Doc. CAB/LEG/67/3/Rev.5, reprinted in 21 I.L.M. 59 (entered into force Oct. 21, 1986).

72. 71 Nuremberg Charter, supra note 11, art. 6(b) (emphasis added).

73. 72 1 Trial of the Major War Criminals (1947), supra note 11, at 00.

we're missing this vol.-- please complete

74. 73 Id. at 63 (emphasis added).

75. 74 Nuremberg Charter, supra note 11, art. 6(c) (emphasis added). For an interesting overview of the history of the term "crimes against humanity," see Egon Schwelb, Crimes against Humanity, 23 Brit. Y.B. Int'l L. 178 (1946); see also United Nations, History of the United Nations War Crimes Commission 35-00, 188-000 (1948). you have to indicate page ranges, and not use ff. (Bluebook rule)

76. 75 1 Trial of the Major War Criminals, supra note 11, at 00.



please complete

77. 76 E.g., Pierre Mounier, assistant prosecutor for France, called the mass deportations "contrary to the international conventions, in particular to Article 46 of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and to Article 6(b) of the [Nuremberg] Charter." 2 Trial of the Major War Criminals (1947), supra note 11, at 49.

It became clear that impediments placed in the way of war refugees who wanted to return to their homelands upon cessation of hostilities were, in human rights terms, an equally criminal act. On December 14, 1945, Captain Samuel Harris, assistant prosecutor for the United States, introduced evidence on this matter and read the following excerpt from a report on expulsions from Alsace into the court record: "The first expulsion action was carried out in Alsace in the period from July to December 1940; . . . 105,000 persons were either expelled or prevented from returning." 3 Trial of the Major War Criminals (1947), supra, at 596.

78. 77 cite relevant portion of judgment?

79. 78 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. Doc. A/64/Add.1, at 188 (1946).

80. 79 See supra notes 30-33, 35 and accompanying text.

81. 80 U.N. Subcomm'n Discrim. & Minor. Res. 1994/24, U.N. Doc. ? (1994).

82. 81 U.N. Subcomm'n Discrim. & Minor. Res. 1995/13, U.N. Doc. E/CN.4/Sub.2/1995/6.11/Add.3, at 20 (1995). pinpoint cite for quote in text?

83. 82 Id. at 00. where?

84. 83 Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/24 (pt. I), at 20 (1993), reprinted in 32 I.L.M. 1661. The right to return is set out in Vienna Declaration, supra, 23.

85. 84 U.N. Comm'n Hum. Rts. Res. 1995/88, please add doc no. (1995).

86. 85 U.N. Subcomm'n Discrim. & Minor. Res. 1992/28, Doc. number? (1992).

87. 86 U.N. Comm'n Hum. Rts. Dec. 1993/102, doc number? (1993) (48 in favor, United States against, no abstentions).

88. 87 Awn Shawhat Al-Khasawneh & Ribot Hatano, Special Rapporteurs, U.N. Subcomm'n Discrim. & Minor., The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Preliminary Report, U.N. Doc. E/CN.4/Sub.2/1993/17 & Corr.1 (1993). OK?? pinpoint cite for quote in text?

89. 88 Id. at ??? reference?

90. 89 Al-Khasawneh, supra note 49, 18-21.

91. 90 Id. 131.

92. 91 Id. 142. Special Rapporteur Hatano stepped down in 1993 and Al-Khasawneh was appointed sole rapporteur.

93. 92 Draft Code of Crimes against the Peace and Security of Mankind, in Report of the International Law Commission on Its Forty-third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 198, U.N. Doc. A/46/10 (1991) [hereinafter Draft Code of Crimes].

94. 93 G.A. Res. 174 (II), U.N. Doc. A/519, at 105 (1947).

95. 94 G.A. Res. 177 (II), U.N. Doc. A/519, at 111 (1947).

96. 95 G.A. Res. 260B (III), U.N. Doc. A/810, at 177 (1948).

97. 96 See supra note 92.

98. 97 Draft Code of Crimes, supra note 92, at 268.

99. 98 Id. at 271.

100. 99 G.A. Res. 48/141, U.N. GAOR, 48th Sess., Supp. No. 49, at 261, U.N. Doc. A/48/49 (1993).

101. 100 G.A. Res. 48/321, U.N. GAOR, 48th Sess., Supp. No. 49A, at 57, U.N. Doc. A/48/49/Add.1 (1994); see Alfred de Zayas, The United Nations High Commissioner for Human Rights: Position, Functions, and Experience, in The Institution of a Commissioner for Human Rights and Minorities 17 (Eckart Klein ed., 1995).



OK section 17? titles should be given in German if they are originally in German, with the translation appended (if you wish)

102. 101 See U.N. High Comm'r for Human Rights, Report of the United Nations High Commissioner for Human Rights, U.N. GAOR, 49th Sess., Supp. No. 36, at 1, U.N. Doc. A/49/36 (1994); see also U.N. High Comm'r for Human Rights, Report of the United Nations High Commissioner for Human Rights, U.N. Doc. E/CN.4/1995/98 (1995).

103. 102 Quoted in Lob für Charta der Vertriebenen, Frankfurter Allgemeine Zeitung, May 27, 1995, at 5 [how could a speech May 28 be reported May 27?]; Heinz Vielain, U.N. sprechen deutschen Flüchtlingen Anerkennung aus, Welt am Sonntag, May 28, 1995, at 00. please supply author, if there is one, for first article & cite city of pub. for Welt am ... & give missing page number

104. 103 Geneva Convention IV, supra note 9, art. 147 (prohibiting unlawful deportation or transfer of persons).

105. 104 S.C. Res. 827, U.N. SCOR, 48th Year, 1993 Res. & Dec. at 29, U.N. Doc. S/INF/49 (1993); ICTY Statute, supra note 14, art. 1.

106. 105 See supra notes 43-44, 46-47, 50-51 and accompanying text; see infra notes 156, 159-161 and accompanying text. ok?

107. 106 S.C. Res. 955, U.N. SCOR, 49th Year, 3453d mtg. at 1, U.N. Doc. S/RES/955 (1994), reprinted in 5 Crim. L.F. 698 (1994); see Rene Degni-Segui, Special Rapporteur, U.N. Comm'n Hum. Rts., The Situation of Human Rights in Rwanda, U.N. Doc. E/CN.4/1995/71 (1995). Pursuant to S.C. Res. 935, U.N. SCOR, 49th Year, 3400th mtg. at 1, U.N. Doc. S/RES/935 (1994), reprinted in 5 Crim. L.F. 695 (1994), a Commission of Experts was established in order to determine the extent of serious violations of humanitarian law in Rwanda. The commission has now completed its work. Letter from the Secretary-General to the President of the Security Council, Oct. 1, 1994, U.N. Doc. S/1994/1125 (1994), transmitting Preliminary Report of the Independent Commission of Experts Established in Accordance with Security Council Resolution 935 (1994); Letter from the Secretary-General to the President of the Security Council, Dec. 9, 1994, U.N. Doc. S/1994/1405 (1994), transmitting Final Report of the Commission of Experts Established pursuant to Security Council Resolution 935 (1994). OK?

108. 107 I.C.J. Statute art. 41 provides for interim measures of protection. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herz. v. Yugo.), 1993 I.C.J. 3 (Interim Order of Apr. 8), reprinted in 32 I.L.M. 888; 1993 I.C.J. 325 (Interim Order of Sept. 13), reprinted in 32 I.L.M. 1599.

109. 108 Letter from the Secretary-General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993), transmitting Interim Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992) [hereinafter First Interim Report].

110. 109 S.C. Res. 780, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 36, U.N. Doc. S/INF/48 (1992). Initially under the chairmanship of Professor Frits Kalshoven of Leiden University, the commission was chaired from the fall of 1993 to its termination in the spring of 1994 by Professor Cherif Bassiouni. Bassiouni organized a large team of volunteers at DePaul University College of Law to analyze data collected by, and submitted to, the commission. When the commission's term ended, the database was turned over to the office of the prosecutor of the International Tribunal. See generally M. Cherif Bassiouni, The Commission of Experts Established pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279 (1994); Alfred de Zayas, The Kalshoven Commission, 6 Leiden J. Int'l L. 131 (1993).

111. 110 First Interim Report, supra note 108, 55-56 (emphasis added).

112. 111 Final Report, supra note 44, 135. See generally U.N. Dep't of Pub. Information, The United Nations and the Situation in the Former Yugoslavia (1995).

do you wish to cite specific part of DPI report? do you want to add the following & cite specific paragraphs?



Letter from the Secretary-General to the President of the Security Council, Oct. 5, 1993, U.N. Doc. S/26545 (1993), transmitting Second Interim Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992).

113. 112 Final Report, supra note 44, 134.

114. 113 Genocide Convention, supra note 7.

115. 114 See supra note 107 and accompanying text.

116. 115 The Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Comm'n Hum. Rts. Res. 1992/S-1/1, U.N. ESCOR 1992, Comm'n Hum. Rts. 1st Spec. Sess., Supp. No. 2A, at 2, U.N. Doc. E/1992/22/Add.1/Rev.1 (1992). The 16 reports Mazowiecki prepared are cited supra note 16. On his resignation, see supra note 16.

117. 116 Tadeusz Mazowiecki, Special Rapporteur, U.N. Comm'n Hum. Rts., The Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Doc. A/47/666, at 00 (1992). page or paragraph cite for quote

118. 117 Tadeusz Mazowiecki, Special Rapporteur, U.N. Comm'n Hum. Rts., The Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Doc. E/CN.4/1994/4, 6 (1993).

119. 118 Tadeusz Mazowiecki, Special Rapporteur, U.N. Comm'n Hum. Rts., The Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Doc. E/CN.4/1994/6, 135 (1993).

120. 119 Tadeusz Mazowiecki, Special Rapporteur, U.N. Comm'n Hum. Rts., The Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Doc. E/CN.4/1994/110 (1994).

121. 120 Id. 7.

122. 121 Id. 8-13.

123. 122 Id. 15-19.

124. 123 Id. 17.

125. 124 Id. 40-48.

126. 125 London Agreement, supra note 11.

127. 126 S.C. Res. 827, supra note 104. See generally Christopher Greenwood, The International Tribunal for Former Yugoslavia, 69 Int'l Aff. 641 (1993); James C. O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 Am. J. Int'l L. 639 (1993); Karin Oellers-Frahm, Das Statut des Internationalen Strafgerichtshofs zur Verfolgung von Kriegsverbrechen im ehemaligen Jugoslawien, 54 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 416 (1994). please check caps in Ger. titles

128. 127 Secretary-General's Report, supra note 14.

129. 128 G.A. Dec. 47/328, U.N. GAOR, 47th Sess., Supp. No. 49 (vol. II), at 45, U.N. Doc. A/47/49 (1993).

130. 129 S.C. Res. 936, U.N. SCOR, 49th Year, 3401st mtg. at 1, U.N. Doc. S/RES/936 (1994).

131. 130 Daphna Shraga & Ralph Zacklin, The International Criminal Tribunal for the Former Yugoslavia, 5 Eur. J. Int'l L. 360 (1994); Roman Kolodkin, An Ad Hoc International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 381, 385-95 (1994).

cite specific part of first article?

132. 131 Prosecutor v. Tadic, Case No. IT-94-1-AR72, op. at 13-14 (ICTY App. Oct. 2, 1995) [hereinafter ICTY Tadic App. Dec.].

133. 132 S.C. Res. 808, U.N. SCOR, 48th Year, 1993 Res. & Dec. at 28, U.N. Doc. S/INF/49 (1993); S.C. Res. 827, supra note 104; see also Secretary-General's Report, supra note 14, 10.

134. 133 ICTY Statute, supra note 14, art. 8; Secretary-General's Report, supra note 14, 60-61.

135. 134 ICTY Statute, supra note 14, art. 8.

136. 135 Secretary-General's Report, supra note 14, 62.

137. 136 For background, see The Search for Peace in the Balkans: A Primer, N.Y. Times, Nov. 1, 1995, at A11; Tony Barber, Tito's Wayward Children Get Ready to Divide the Spoils, The Independent (London), Dec. 16, 1990, at 10, available in LEXIS, World Library, Allnws File; Carol J. Williams, Slovenia Begins Secession, Voids Yugoslav Laws, L.A. Times, Feb. 21, 1991, at A1, available in LEXIS, World Library, Allnws File; Chuck Sudetic, Another Yugoslav State Breaks Ties, N.Y. Times, Feb. 22, 1991, at A3, available in LEXIS, World Library, Allnws File; Dusan Cotic, Introduction to a Critical Study of the International Tribunal for the Former Yugoslavia, 5 Crim. L.F. 223, 227-29 (1994). OK??

138. 137 S.C. Res. 827, supra note 104, 2.

139. 138 ICTY R. Proc. & Evid. 55, 61, U.N. Doc. IT/Rev.3 (1995), reprinted in 5 Crim. L.F. 651 (1994).



I thought there was a recent revision of the rules? do you know about this? I thought it concerned rule 61 so it may be important

140. 139 U.N. Doc. CERD/C/SR.1004, 57 (1993) (Declaration of M. Mitic, Representative of the Federal Republic of Yugoslavia, Aug. 14, 1993). if you're citing summary records, you should technically cite to CERD session & meeting numbers

141. 140 ICTY R. Proc. & Evid. 58, supra note 138; see ICTY Statute, supra note 14, art. 29; Secretary-General's Report, supra note 14, 23; see also ICTY Statute, supra, art. 9(2). For a discussion, see Kenneth S. Gallant, Securing the Presence of Defendants before the International Tribunal for the Former Yugoslavia: Breaking with Extradition, 5 Crim. L.F. 557 (1994). ok?

142. 141 ICTY Statute, supra note 14, art. 7(4), tracks Nuremberg Charter, supra note 11, art. 8, allowing for a plea of obedience to superior orders as mitigating punishment only. The International Military Tribunal for the Far East was established in Tokyo pursuant to Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. It operated pursuant to Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (as amended Apr. 26, 1946), 4 Bevans 21 [hereinafter Tokyo Charter]. Tokyo Charter, supra, art. 6, is to the same effect as Nuremberg Charter, supra, art. 8. OK?



add cite to Yamashita trial?

143. 142 ICTY Statute, supra note 14, art. 7(3) (following Nuremberg Charter, supra note 11, art. 0; Tokyo Charter, supra note 141, art. 0).



Roger suggested adding the cross-refs/please complete cites--I wasn't sure

144. 143 Id. art. 7(2) (following Nuremberg Charter, supra note 11, art. 7; Tokyo Charter, supra note 141, art. 6). OK?

145. 144 [please read carefully in light of Tadic app. decision] Until recently, some experts argued that Nuremberg Charter, supra note 11, art. 6(c), was the only authoritative definition of crimes against humanity. See generally M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law 372-92 (1992).

ICTY Statute, supra note 14, art. 5, lists the following crimes against humanity: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial, and religious grounds, and other inhumane acts "when committed in armed conflict, whether international or internal in character, and directed against any civilian population." This goes beyond the Nuremberg definition in two important respects. First, rape was not enumerated as a crime against humanity under Nuremberg Charter, supra, art. 6(c). Second, crimes against humanity had to be committed "in execution of or in connection with" crimes against peace or war crimes. Id. But see Allied Control Council Law No. 10, Dec. 20, 1945, art. II(1)(c), in Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50, reprinted in Documents on Prisoners of War 304 (Naval War College International Law Studies Vol. 60, Howard S. Levie ed., 1979) ("Crimes against Humanity: Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated."); see also [should there be a ref. to Tokyo trials?].

Recently commenting on the scope of ICTY Statute, supra, art. 5, the International Tribunal stated that under customary international law it is "by now a settled rule" that "crimes against humanity do not require a connection to international armed conflict" and "may not require a connection . . . [to] any conflict at all." The opinion goes to state that there is "no question" that the definition in the Statute comports with the principle of nullum crimen sine lege. ICTY Tadic App. Dec., supra note 131, 141; see also id. 140 (citing Genocide Convention, supra note 7, art. 1; International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, arts. 1-2, 1015 U.N.T.S. 243 (entered into force July 18, 1976), "both of which prohibit particular types of crimes against humanity regardless of any connection to armed conflict").

146. 145 Secretary-General's Report, supra note 14, 34; see also id. 35.

147. 146 See supra note 110 and accompanying text.

148. 147 S.C. Res. 941, U.N. SCOR, 49th Year, 3428th mtg. at 1, 2, U.N. Doc. S/RES/941 (1994).

149. 148 Prosecutor v. Nikolic, Case No. IT-94-2-I (ICTY Nov. 4, 1994), reprinted in 34 I.L.M. 996.

150. 149 Prosecutor v. Nikolic, Case No. IT-94-2-R61 (Review of the Indictment pursuant to Rule 61) (ICTY Oct. 20, 1995); see Robert Marquand, A Dogged U.N. Judge Propels "the Real Trial of the Century," Christian Sci. Monitor, Oct. 23, 1995, at 7, available in LEXIS, World Library, Allnws File. ok?

151. 150 ICTY R. Proc. & Evid. 61, supra note 138.

152. 151 Prosecutor v. Meakic, Case No. IT-95-4-I (ICTY Feb. 13, 1995), reprinted in 34 I.L.M. 1011.

153. 152 Prosecutor v. Tadic, Case No. IT-94-I-T (ICTY Feb. 13, 1995), reprinted in 34 I.L.M. 1011.

154. 153 ICTY Press Release, "Case No. IT-94-1-T (Dusko Tadic) Update 6: Indictment Amended, Accused Faces Additional Charges," No. CC/PIO/19-E (Sept. 26, 1995).

155. 154 Prosecutor v. Tadic, Case No. IT-94-I-T (ICTY Aug. 10, 1995).

156. 155 See supra note 131.

157. 156 Prosecutor v. Karadzic, Case No. IT-95-5-I (ICTY July 25, 1995).

158. 157 Prosecutor v. Rajic, Case No. IT-95-12-I (ICTY Sept. 6, 1995).

159. 158 Ian Geoghegan, U.N. Tribunal Charges First Croat with War Crimes, Reuters, Sept. 6, 1995, available in LEXIS, World Library, Allnws File. OK?

160. 159 John Pomfret, NATO Members Agree on Proposal for Bosnia Force; U.N. and E.U. Say Croats Carried Out Atrocities, Int'l Herald Trib., Sept. 30, 1995, available in LEXIS, World Library, Allnws File; Laura Silber, U.N. Claims Croatian Atrocities, Fin. Times (London), Oct. 3, 1995, available in LEXIS, World Library, Allnws File; Chris Simon, Thousands of Serbs Flee Croatia, UPI, Aug. 6, 1995, available in LEXIS, World Library, Allnws File. ok?

161. 160 S.C. Res. 1009, U.N. SCOR, 50th Year, 3563d mtg. at 1, 2, U.N. Doc. S/RES/1009 (1995).

162. 161 Id. 4.

163. 162 See Theo van Boven, Special Rapporteur, U.N. Subcomm'n Discrim. & Minor., Study Concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Second Progress Report, U.N. Doc. E/CN.4/Sub.2/1992/8 (1992).

164. 163 G.A. Res. 194 (III), U.N. Doc. A/810, at 24, 11 (1948).

165. 164 E.g., Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, G.A. Res. 40/161, U.N. GAOR, 40th Sess., Supp. 53, at 112, U.N. Doc. A/40/53 (1985). It should also be noted that Israel (Dec. 19, 1966) is a party to the International Covenant on Civil and Political Rights. 1994 Multilateral Treaties, supra note 39, at 117. ok?

166. 165 E.g., U.N. Comm'n Hum. Rts. Res. 4 (XXXII) (1975). UN Doc. number?

167. 166 E.g., G.A. Res. 3395 (XXX), U.N. GAOR, 30th Sess., Supp. No. 34, at 5, U.N. Doc. A/10034 (1975); G.A. Res. 34/30, 34th Sess., Supp. No. 46, at 17, U.N. Doc. A/34/46 (1979); G.A. Res. 37/253, U.N. GAOR, 37th Sess., Supp. No. 51, at 48, U.N. Doc. A/37/51 (1983).



THESE ALL DEAL W/ Cyprus!! fix text or add refs. for other states--please follow citation format shown above

168. 167 Concept for a United Nations Peace-keeping Operation in Yugoslavia is set out as annex III to Report of the Secretary-General pursuant to Security Council Resolution 721 (1991), U.N. Doc. S/23280 (1991), reprinted in 31 I.L.M. 1442. See id. 20. The Security Council "approved" the peace plan in S.C. Res. 724, U.N. SCOR, 46th Year, 1991 Res. & Dec. at 45, U.N. Doc. S/INF/47 (1991). OK?

169. 168 Report of the Secretary-General pursuant to Security Council Resolution 959 (1994), U.N. Doc. S/1994/1389 (1994). OK? cite to specific paragraphs?

170. 169 S.C. Res. 947, U.N. SCOR, 49th Year, 3434th mtg. at 1, 7, U.N. Doc. S/RES/947 (1994).

171. 170 S.C. Res. 1009, supra note 160; see also S.C. Res. 941, supra note 147, 3 (reaffirming that "all displaced persons should be enabled to return in peace to their former homes"); S.C. Res. 959, U.N. SCOR, 3462d mtg. at 1, U.N. Doc. S/RES/959 (1994); S.C. Res. 981, U.N. SCOR, 50th Year, 3512th mtg. at 1, U.N. Doc. S/RES/981 (1995).

172. 171 See supra note 65 and accompanying text.

173. 172 See supra notes 80-81 and accompanying text; Al-Khasawneh, supra note 49, 102. ok?

174. 173 Case 7964, Inter-Am. C.H.R., Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/ser.L/V/II.62, doc. 26, at 118 (1984); see Alfred de Zayas, The International Judicial Protection of Peoples and Minorities, in Peoples and Minorities in International Law 255 (Catherine Brölmann et al. eds., 1993). OK cite to Miskito case?

175. 174 American Convention on Human Rights, supra note 69, art. 22.

176. 175 Der Tagespiegel (Berlin), Oct. 5, 1995. can you provide article title & author & page number?

177. 176 See supra text accompanying note 91.