One of the Genocide Counts Against Karadzic is Dismissed

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia that is trying Radovan Karadzic today dismissed a charge of genocide. The ruling was part of the decision that Trial Chambers of the Tribunal make after the prosecution has closed its case and before the defense phase of the trial has begun. Karadzic challenged all of the counts in the indictment, but was successful on only one, concerning alleged genocide perpetrated in Bosnia during 1992. Another count charging genocide with respect to the July 1995 Srebrenica massacre remains, and Karadzic must now produce evidence in reply.

For many years, these rulings have been delivered orally. In a few weeks, the transcript of the decision will be available on the website of the Tribunal. For the time being, all that we have is the press release issued a few hours ago. Here is what it says:

Count 1 of the Indictment charges genocide in relation to the crimes alleged to have been committed between 31 March and 31 December 1992 against the Bosnian Muslims and Bosnian Croats in some municipalities in BiH. Having reviewed the totality of the evidence with respect to the killing of, serious bodily or mental harm to, the forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the Municipalities, the Chamber found that the evidence even if taken at its highest, does not reach the level from which a reasonable trier of fact could infer that genocide occurred in the Municipalities.

The Chamber noted that genocidal intent can be inferred from a number of factors and circumstances, including the general context of the case, the means available to the perpetrator, the surrounding circumstances, the perpetration of other culpable acts systematically directed against the same group, the numerical scale of atrocities committed, the repetition of destructive and discriminatory acts, the derogatory language targeting the protected group, or the existence of a plan or policy to commit the underlying offence.  The Chamber noted that although it has heard evidence of culpable acts systematically directed against Bosnian Muslims and/or Bosnian Croats in the Municipalities, and of the repetition of discriminatory acts and derogatory language, the nature, scale, and context of these culpable acts do not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent.

The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.

More than once, extremists have labelled me a ‘denier’ because I have challenged the use of the label genocide for the conflict in Bosnia and Herzegovina. But today’s decision is quite consistent with earlier decisions of the Tribunal and with the 2007 judgment of the International Court of Justice. The Bosnian war was characterized by war crimes and crimes against humanity. The waves of ethnic cleansing constituted persecution rather than physical extermination of the groups that were targeted.

The one exception, according to the case law, is the 1995 Srebrenica massacre. To my mind, the approach taken by judges at the Tribunal and the International Court of Justice is somewhat incoherent, in that they have generally rejected the genocide qualification for the conflict, yet applied it to one terrible event during the war that was of short duration and isolated in a geographic sense. That approach is now well-established, whatever one thinks about the inherent inconsistency of it. Karadzic will have a hard time beating the charge of genocide with respect to the Srebrenica massacre.

Iran Truth Commission Sits in London

This week in London a Truth Commission on the treatment of political prisoners in Iran during the 1980s is sitting at Amnesty International UK’s headquarters. The Commissioners consist of several distinguished legal academics, including Prof. Maurice Copithorne (former Special Rapporteur on Iran), Prof. Eric David (member of the International Humanitarian Fact-Finding Commission), Prof. Daniel Turp, Louise Asmal, Anne Burley and myself.

We’ve been hearing testimony from victims of the violations as well as from family members who had relatives that were murdered in the torture chambers of the Iranian prisons, hanged or executed by firing squad.

As a general rule, the victims were secular leftists associated with a range of political organisations. Some were also associated with Kurdish nationalist movements. The accounts are appalling, for example, of sympathizers with political groups being rounded up and questioned about their religion views. If the answer was not to the satisfaction of their fundamentalist interrogators, they would be summarily executed. Torture was routinely practised using a variety of horrific techniques.

Those testifying before the Commission have travelled from around the world in order to record their accounts. This is a phenomenon that I observed in Sierra Leone a decade ago, when I sat as a member of that country’s Truth and Reconciliation Commission. For many victims, a measure of justice is delivered by public acknowledgement that violations took place. Even if this week’s Truth Commission does little else, it will provide these victims with an appropriate forum.

The hearings are very well attended. Often I see people sobbing or wiping their eyes as the testimony is delivered. The witnesses themselves conduct themselves with great dignity and determination, although it is clear that there is also much anguish involved in delivering their accounts. One witness told us that he had never before spoken of the events, which took place twenty-five years ago.

At the end of the week, we will begin drafting a report which will be used for a second stage in this process. A Tribunal is to be established that will make legal determinations based on the facts that the Truth Commission confirms.

Dr Mario Silva

In Galway last week, Dr Mario Silva successfully defended his doctoral thesis entitled Failed and Failing States: Causes and Conditions.

Annyssa Bellal, Mario Silva, Payam Akhavan (by videolink) and myself.

The external examiner was Professor Payam Akhavan of McGill University and the internal examiner was Dr Annyssa Bellal.

Mario Silva has had a distinguished career in public life in Canada that includes three terms in the House of Commons. He is currently the Canadian representative on the Task Force for International Co-operation on Holocaust Education, Remembrance and Research, and will assume its chairmanship in 2013.

The oral examination took place on his birthday. Congratulations, Mario, on both counts.

Prosecutor’s Behaviour Reflects Poorly on the Court, Appeals Chamber Says

Luis Moreno-Ocampo has more than once been criticized on this blog for his predilection to make statements that seem inappropriate for someone in his position as Prosecutor of the International Criminal Court. He stepped down a few days ago, replaced by Fatou Bensouda who began her nine-year term as the Court’s second Prosecutor. As a parting salute, only a few days before Moreno-Ocampo’s departure the Appeals Chamber issued a decision faulting him for statements in an interview in the magazine Vanity Fair that he conducted with British barrister Philippe Sands.

Amongst other things, the decision contains an interesting discussion of the scope of the presumption of innocence.

According to the Appeals Chamber:

31. … the Prosecutor did not exercise sufficient caution, either in the manner in which the interview was conducted or in the content of his statements. The Prosecutor discussed the case in depth and specific evidence against Mr Gaddafi. For nearly three hours, the Prosecutor and Mr Sands reviewed and analysed a 38 minute speech of Mr Gaddafi, with the Prosecutor frequently commenting on the veracity of Mr Gaddafi's statements or on the evidence against him. The Appeals Chamber considers that this detailed discussion of evidence was inappropriate in the context of a media interview. The in-depth discussion of evidence should generally be left to the courtroom. In relation to the content of the Prosecutor's statements, the Appeals Chamber notes that, on several occasions, the Prosecutor stated, as fact, material elements of the allegations against Mr Gaddafi or Mr Al-Senussi, saying, for example, "There was no battle. It was people going to a funeral. That's a crime against humanity". On other occasions, the Prosecutor passed judgment on the credibility of Mr Gaddafi's statements, stating, point blank, "He's lying". The Appeals Chamber finds that the Prosecutor's statements on these sub judice matters were inappropriate in that they gave the impression that factual issues yet to be determined by the judges had been determined or could not be contested.?

32. The Appeals Chamber is also concemed with the way in which the Prosecutor's statements and the interview are recounted in the Vanity Fair Interview. There is no indication that the Prosecutor clarified that the case was at an early stage or that it would be up to the Pre-Trial Chamber to decide whether to confirm charges and, if charges were confirmed, for the Trial Chamber to decide on Mr Gaddafi's criminal responsibility. To the contrary, the Vanity Fair Interview says that it is the Prosecutor "who may decide [Mr Gaddafi's] fate". While the Prosecutor did not publish the Vanity Fair Interview himself, the Appeals Chamber considers that it appears that the Prosecutor failed to exercise due caution in how his interview was reported.

33. For the aforementioned reasons, the Appeals Chamber finds that the Prosecutor's behaviour was clearly inappropriate in light of the presumption of innocence. Such behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as whole, may lead observers to question the integrity of the Court as a whole.

The full decision is available here.

Thanks to Joe Powderly.

Eleanor Roosevelt and the new French 'first lady'

The recently-published biography, in French, of Eleanor Roosevelt (Claude-Catherine Kiejman, Eleanor Roosevelt,First Lady et Rebelle, Éditions Tallendier), is stirring much interest in France because the new President’s partner is herself a career journalist. Some have suggested that she retire temporarily because of the possibility of ‘conflict of interest’.

Valérie Trierweiler has herself pointed to Eleanor Roosevelt as an example of a ‘first lady’ who maintains her own public career as a writer. For many years, Eleanor Roosevelt wrote an almost daily column, called My Day. It was a kind of diary that described her most fascinating life. It is all available on line.

I’ve recently pored over the entries for 1946, 1947 and 1948 as part of my research on the drafting of the Universal Declaration of Human Rights. Here is the entry for 11 May 1946, when Eleanor Roosevelt and a handful of pioneers meeting as the ‘Nuclear Commission on Human Rights’ began the process of drafting the Declaration:

NEW YORK, Friday—It seems to me that perhaps I ought to catch up a little on my usual diary! Last Saturday, I had the great pleasure of having Miss Gabriela Mistral, the well-known Chilean poetess, and Mr. and Mrs. Andrei Gromyko drive up to Hyde Park to lunch with me.

I had met all of them before but I had had merely a casual introduction to Miss Mistral. As I have great admiration for this winner of the 1945 Nobel Prize for Literature, I was delighted to have a chance to really talk to her.

She is one of Chile's permanent consuls in San Diego, but her interests are far from being political. As she is a humanitarian, she wishes to see changed anything which is unjust either for men or women. But her real interest is in literature and the arts, and not in whether a vote will be needed in order to obtain some of the things people are entitled to. She had a most interesting face, and I hope the day will come when I will have the opportunity to talk with her in leisurely fashion about the many things in which we both are interested.

After Miss Mistral had gone back to New York City to fill a radio engagement, I drove Mr. and Mrs. Gromyko around to see my husband's hilltop cottage, his trees, and finally the library and the big house. Mr. Gromyko was long-suffering and endured having Fala practically sit in his lap during most of the time we were driving!

* * *

On Sunday, the members of the United Nations Human Rights Commission and the members of the Subcommission on the Status of Women all came up for a picnic lunch before visiting the big house and library. They got started from New York City rather late and, I think, had the usual difficulty finding exactly where they were supposed to arrive, so lunch was a bit late. But I enjoyed having them and hoped they did not find my hospitality too informal.

Monday saw us all back at work in New York but, that afternoon, a case of shingles which I had been fighting for over a week got a little the better of me. I left Prof. Rene Cassin to preside at the afternoon session of the Human Rights Commission. And all day Tuesday, I deserted the Subcommission on the Status of Women. But by Wednesday, I was able to start out again at 9:30, stay at Hunter College all day, and even keep my speaking engagement for the evening.

The subcommission is having a rather hard time finishing its report on schedule, but they are due to hand it to the Human Rights Commission on Monday so that we may go over it on Tuesday. Our own work is progressing fairly well. Today we will take up the consideration of what our recommendations should be on freedom of information. Certainly freedom of information, whether it means freedom of the press or of any other avenue of information, is one of the very important factors in the future peace of the world.

Last night, I spoke for a few minutes for the Jewish Welfare Fund, and today I shall speak for a very brief time at the opening of the new Medical Rehabilitation Clinic which the Veterans Administration has established here in New York City.

Mary Ann Glendon, in her biography of Eleanor Roosevelt, reports on a session of the nuclear Commission on Human Rights where René Cassin spoke for fifteen or twenty minutes without a pause for translation. Apparently “the interpreter broke down in tears and fled the room, leaving Mrs. Roosevelt, who fortunately was fluent in French, to summarize his remarks as best she could.” (Mary Ann Glendon, A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights, New York: Random House, 2001, p. 31.)

Two years later, Eleanor Roosevelt spent the autumn in Paris negotiating the final text of the Declaration.  Together with Cassin, she visited the Sorbonne and wrote in her column of 1 October 1948:

PARIS, Thursday—I must own up to the fact that speaking at the Sorbonne seemed to me altogether too great an honor for a woman who never even had earned a degree after four years' work in college.

I was nervous and apprehensive, but there is something in the atmosphere of an old building like that and its beautiful hall that has an invigorating effect on speakers. Of course, the French language lends itself to oratory, and long before I spoke I was lost in the admiration of the way this language provides the words to say things that one would find it difficult to say in almost any other language.

The president of the university and Professor Rene Cassin spoke before I did. And when they speak of the Sorbonne one can tell by the feeling and emotion they put into their words that they are not merely talking of an institution of learning. This is a building they love, in which traditions have been built and which mean a great deal in the intellectual life of the French people.

Our students at home and our universities who have sent help to the Sorbonne and to the students here would be gratified by the remarks made by the president of the university in his speech. He told how much it has meant to them to receive tons of dried milk, for example, just before examinations so that they could give the students more nourishment at that particular time. He emphasized his gratitude not just for the material things, much as they have needed them, but for the spirit of generosity and affection which has come to them here from the institutions of learning in their sister republic of the United States.

The Sorbonne president also made mention of Benjamin Franklin and how he first came to speak for the United States in this capital city of Paris. And this reminded me of the fact that John Golden, who was here for a few days, made me walk to the end of the block of buildings in which our hotel stands to show me a bronze table that commemorates the fact that in this building Benjamin Franklin and other American statesmen signed the treaty that brought us help from France in the days when we needed it more than France needs our help today.

Our two republics have a long history of friendship and it is good now, when they need a lift to their spirits, that we are able to help them through these arduous years. I was only too glad to be able to thank them not only for what they did for us years ago, but for what they have done in the fields of literature and the fine arts for us and for the world over in all the years of their history.

Sierra Leone Truth and Reconciliation Report

The multi-volume report of the Sierra Leone Truth and Reconciliation Commission is now available on line (after a few years when it was difficult to obtain). Click here.
Thanks to Howard Varney.

On 50-year sentences for tyrants

Article 10(1) of the International Covenant on Civil and Political Rights states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Paragraph 3 of article 10 says

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

It is hard to rejoice about a 50-year sentence being imposed on a 65-year old, no matter how heinous and terrible the crimes he committed may have been.

Fifty years is not the highest sentence ever imposed by an international criminal tribunal. A few years ago, the same Special Court for Sierra Leone imposed a sentence of 52 years. But none of the other tribunals has ever imposed such a high sentence. Not even close.

The judges of the Special Court will explain that they need to do this because they cannot impose a sentence of life imprisonment, which seems to be excluded by the Statute of the Special Court. At the International Criminal Tribunal for the former Yugoslavia, this option is available, although it has only rarely been used.

At the International Criminal Court (which has never yet imposed a sentence), there is a maximum sentence of 30 years. The judges may also impose a life sentence “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”. However, the sentence is subject to a mandatory review after 25 years.

What is troubling about the 50-year sentence given to Charles Taylor is the implicit message that he should never be released. There is provision in the Rules of Procedure and Evidence for a reduction in the sentence at some point in the future. But nothing in the Statute of the Court or in the Rules gives Charles Taylor the right to seek reduction in the sentence at any point in time.

There is the haunting precedent of Rudolf Hess, the only Nazi defendant to be given a life sentence at Nuremberg. Of course, the majority were sentenced to death. But some of the Nazi villains, like Albert Speer, were given sentences of 20 years. Hess server more than thirty years of his sentence, unable to achieve any form of release because of differences of opinion at the political level. He tried, unsuccessfully, to bring his case to Strasbourg. He finally committed suicide.

The Special Court for Sierra Leone could have achieved the same result with a sentence of 25 or 30 years. Indeed, it is for this reason that the other international criminal tribunals, as well as justice systems of most countries, do not generally impose custodial sentences with fixed terms greater than 25 or 30 years.

As article 10 of the Covenant recalls, a detention regime must never lose sight of  the ‘inherent dignity of the human person’. The ‘essential aim’ must be ‘reformation and social rehabilitation’. If we fail to honour his human dignity, we damage our own. There is no reason why Charles Taylor cannot be reformed and rehabilitated. This must not be forgotten as the Court attempts to find a sentence that adequately reflects the horror of the crimes that he committed.

More on the Removal of Judge Sow

Yvonne McDermott sends a very helpful and complete account, reproduced below. As the conclusion indicates, the colleagues of Judge Sow decided that his rather frustrated and ineffective attempt to make a short statement at the end of the delivery of the summary of the Taylor judgment makes him 'unfit' to be a judge. They cannot, however, remove him from office. They can only recommend that this be done by the Secretary-General of the United Nations, and this is what they have done. Pending a determination by the Secretary-General, they have suspended him from sitting. The authority for this is Rule 24(iii), which states: 'The Judges shall meet in Plenary to... (iii) Decide on matters relating to the internal functioning of the Chambers and the Special Court.' Suspending a judge from sitting in a case, when the Rules themselves say that he is required to be present at every hearing, seems an extraordinarily serious measure to be based upon such a vague provision.


From the sentencing hearing transcript:
"Before proceeding today, it gives us no pleasure to have to place on record some explanation for the extraordinary situation which occurred at the end of the previous sitting of the Trial Chamber on 26th of April, 2012, on which date the Trial Chamber delivered its summary judgement.
On that date, at the conclusion of the proceedings, the Alternate Judge, without any notice to the Trial Chamber, proceeded to deliver his own opinions from the bench on the judgement that had just been delivered on these proceedings and on the Special Court itself. What the Alternate Judge did was in contravention of the agreement, the Statute, and the Rules which govern this Court and amounted to misconduct. The purpose of attaching an Alternate Judge to a Trial Chamber is that he can be designated to replace a sitting Judge if that Judge is unable to continue sitting. See Article 12 of the Statute. No such designation has been made in the present case. Further, during the proceedings, the Alternate Judge may pose questions through the Presiding Judge, but there is no other entitlement for an Alternate Judge to speak during court
proceedings. See Rule 16 bis (B). Moreover, an Alternate Judge not have any say in decisions of the Trial Chamber. He is obliged to be present during deliberations off the Trial Chamber, but he is not entitled a vote thereat. See Rule 16 bis (C). It follows that it was wrong for the Alternate Judge, who has not been designated to replace a sitting Judge, to offer an opinion, whether dissenting or concurring, on a judgement of Trial
Chamber.

The behaviour of Judge Sow was referred by the Council of Judges to a plenary meeting of the Judges of the Special Court. We three Trial Chamber Judges abstained from voting at that plenary.
I will now read onto the record the resolution of the plenary.

'Resolution on complaint by Trial Chamber II against Justice Malick Sow. The Judges of the Special Court for Sierra Leone sitting on the 7th and 10th of May, 2012, in the 17th plenary of Judges, pursuant to Rule 15 bis (B) of the Rules of Procedure of Evidence of the Special Court which mandates the Council of Judges who refer an allegation of unfitness of a Judge to sit to the plenary if it determines that, one, the allegation is of a serious nature, and two, that there appears to be a substantial basis for same.
Pursuant also to Rule 24(iii) of the Rules, which provides that the Judges shall meet in plenary to decide upon matters relating to the internal functioning of the Chambers and the Special Court, seized of the complaint by the Judges of Trial Chamber II, dated 26th of April, 2012, against Justice Malick Sow, Alternate Judge, considering the response of Justice Malick Sow, dated the 1st of May, 2012, to the complaint, having also considered the views and recommendations of the Judges on the matter and the response of Justice Malick Sow to those views
pursuant to Rule 15 bis (C) have reached the following conclusions:

1. The plenary declares that Justice Malick Sow's behaviour in court on the 26th of April, 2012, amounts to misconduct rendering him unfit to sit as an Alternate Judge of the Special Court.
2. The plenary recommends to the appointing authority pursuant to Rule 15 bis (B) to decide upon the further status of Justice Malick Sow.
3. Pursuant to Rule 24(iii), the plenary directs Justice Malick Sow to refrain from further sitting in the proceedings pending a decision from the appointing authority.

Done in Freetown, Sierra Leone, this 10th day of May, 2012, for and on behalf of the plenary, signed by the President Justice
Jon Kamanda.

What Happened to Judge Sow?

Earlier this week, the full judgment in the Charles Taylor case was issued. It runs to more than 2,500 pages – something that earns it a place in the Guinness Book of World Records – and I hope readers of the blog will understand if a detailed analysis is not yet forthcoming. But there is something puzzling on page 1 of the final judgment. The name of Judge Malik Sow is missing.

Judge Sow served throughout the trial as an Alternate Judge. Rule 16bis, entitled Alternate Judges, says ‘An alternate Judge … shall be present at each stage of the trial or appeal to which he or she has been designated.’ The sentencing hearing was part of the trial.

 Judges at the Special Court for Sierra Leone are appointed either by the Secretary-General of the United Nations or by the Government of Sierra Leone. Judge Sow was appointed by the Secretary-General. He was present throughout the Trial and for the delivery of the judgment on 26 April 2012. His name appears on the summary of the judgment, which was distributed on 26 April 2012.

When the judgment was first issued in summary form, a few weeks ago, Judge Sow made a public objection which is discussed in an earlier post on the blog.

But apparently he was not present when the sentencing hearing took place last week. There is nothing on the website of the Court that I could find to explain this. I was told, informally, that the Plenary of the Court, composed of all of the judges, issued a decision removing him from case. This week's full judgment is supposed to include a 'Procedural History' as an annex, and surely that is where such a  development must be explained. But it is missing from the full version of the judgment that was distributed.

Can readers of the blog assist in clarifying the procedure, and the legality, of removing a judge while a case is in progress?

Judge Sow still appears on the website as a judge of the Court. I don't believe he has been removed from office. In any case, I think that can only be done by the Secretary-General of the United Nations.

The Rules of Procedure and Evidence says a judge may not sit in a case ‘in which his impartiality might reasonably be doubted on any substantial ground’ (Rule 15). But from what I understand of the events in the courtroom on 26 April 2012 this is not the problem. Nothing Judge Sow said that day suggests a lack of impartiality.

It is also possible for a judge to be deemed ‘unfit to sit’ (Rule 15bis). It provides for a rather complex procedure involving referral by the President to the Council of Judges who then refer the matter to the Plenary Meeting which makes a recommendation to the body which appointed the judge. But this is really a procedure for removal from office, it seems. And presumably Judge Sow has not been removed from office. So should he not have been in the courtroom for the sentencing hearing, and should his name not have appeared on the judgment? How can a judge be part of a summary of a judgment yet absent from the judgment itself?

There may be a good explanation for all of this. It should be public. It is not good for international justice that such develops as removal of a judge from a trial be cloaked in mystery. 

Samuel Moyn, Peng-chun Chang and the Universal Declaration of Human Rights

It isn’t every day that the name of Peng-Chun Chang appears in the New York Times. But there it is, in today’s newspaper, in an op-ed written by Columbia University historian Samuel Moyn. Professor Moyn is the author of The Last Utopia: Human Rights in History, which was published a couple of years ago.

Peng-chun Chang and Eleanor Roosevelt in 1948.

The occasion for Moyn’s article is the release of Chinese activist Chen Guangcheng a few days ago. Professor Moyn mentions Peng-Chun Chang because he uses the recent events to return to the thesis he sets out in his book about the insignificance of the Universal Declaration of Human Rights. Chang was the Chinese representative on the Commission on Human Rights when the Universal Declaration was being drafted in 1947 and 1948. He has been described as one of the intellectual heavyweights of the Commission at the time. His contributions to the drafting of the Universal Declaration were enormous.

(On visits to China in recent years, I’ve frequently referred to Chang as the person responsible for the vital Chinese contribution to the Universal Declaration. Chinese colleagues often dismiss Chang as a ‘nationalist Chinese’ – as does Moyn, by the way – without recognizing that Change was, at the time, the representative of ‘one China’. I think China should today be proud of Chang and his role in the drafting of the Universal Declaration.)

In today’s New York Times, Professor Moyn repeats his unfortunate and rather simplistic analysis of the Universal Declaration: ‘The 1948 Universal Declaration of Human Rights — which Peng-Chun Chang, a representative of Nationalist China, helped draft — had virtually no impact on world politics in its time.’ Professor Moyn says human rights did not become a significant factor in international relations until the mid-1970s, when the activities of Soviet dissidents, the election of Jimmy Carter, and the award of the Nobel Peace Prize to Amnesty International transformed the situation. He is dismissive of writers who have spoken of the importance of the Declaration and of its drafters, like Mary Ann Glendon, Johannes Morsink, Elizabeth Borgwaldt and Paul Gordon Lauren, for being ‘celebratory’.

But one can acknowledge the significance of the 1970s in terms of the development of international human rights without denigrating the richness of the late 1940s. This is where Professor Moyn is in error. He also suffers from the same celebratory fervour of those he criticizes in failing to recognize the ambiguities of the 1970s.

His analysis is also a bit too US-centric. It does not, for example, acknowledge the 1970s as a period when human rights in Europe improved dramatically, and pulled ahead of the United States, which was heading into the tailspin that led to Abu Ghraib and Guantanamo. Take as an example the issue of capital punishment, still practised in France and Spain in the 1970s, at a time when it had been abolished judicially in the United States. Europe went on to universal abolition while the United States Supreme Court reversed itself and reinstated the practice.

By focussing on the United States, as he does, Professor Moyn also does not adequately assess the role of the ‘third world’ in the development of modern human rights. There is a tendency – still prevalent today – to view international human rights as a gift from the Global North to the Global South, exported by modern day missionaries from the civilized to the uncivilized.

But the history of human rights within the United Nations indicates a very important role for the newly independent countries who joined the organization in the 1960s and who set the elimination of apartheid at the top of their agenda. At the time, Europe and America were running interference for the racist regime in Pretoria, providing it political, economic and moral support. Important breakthroughs in terms of the legal clout of international human rights norms and institutions flowed from the insistence of the ‘third world’ on dealing with this blight. The first efforts to pierce the veil of state sovereignty were about apartheid, and they were driven by the Global South.

The Universal Declaration of Human Rights was produced in the ferment of the post-Second World War lawmaking process. It was not alone. Other important legal developments took place, including the adoption of the 1948 Genocide Convention and the 1949 Geneva Conventions, not to mention the immense progress manifested in the Charter of the United Nations itself, and the international trials at Nuremberg and Tokyo.

The Cold War intervened to prevent further developments. That is not the fault of the Universal Declaration. Indeed, the Declaration is like many legal instruments that are adopted in periods of change and unrest. They are like seeds in a spring garden, and require water and warmth to germinate and grow. That there is a period of apparent dormancy until this process takes place does not mean that nothing is going on. One could say the same about the fourteenth amendment to the United States constitution, which was adopted in the aftermath of the Civil War but which only delivered its promise in the 1950s and 1960s.

Samuel Moyn has very pertinent observations about developments in human rights in the 1970s, but they do not need to be premised on downgrading the importance of the Universal Declaration of Human Rights and the period in which it was drafted. The 1940s were a period of huge tension and contradiction. The world was struggling to bury a past characterized by colonialism and global warfare. Out of this crucible emerged developments of immense importance, including the Universal Declaration of Human Rights. He should adopt a more nuanced and subtle understanding of the development of human rights, one in which there is room for recognition of the significance of both the 1940s and the 1970s.

For the sake of full disclosure, my current writing project is a compilation of the drafting history of the Universal Declaration of Human Rights. The materials consist of more than a million words. They are organized chronologically accompanied by annotations and indexes that should make these relatively obscure materials much more accessible to scholars. Within the coming weeks I expect to see page proofs of this three-volume collection of the travaux préparatoires of the Declaration. It is to be published by Cambridge University Press early in 2013. The documents reveal the richness of the debates, the significance of the text, and the inspired brilliance of many of the Declaration’s drafters, including Eleanor Roosevelt and Peng-chun Chang.