Ethnic Cleansing and the International Criminal Court

Originally published April 20, 2023

Ethnic cleansing is the systematic intimidation or forced removal of ethnic, racial, or religious groups from an area to make that area more homogenous.[1] The intertwined emergence of international criminal law and international humanitarian law at the same time as major ethnic cleansing campaigns (often overlapping with genocide) conducted by the Ottoman Empire, Nazi Germany, and the Soviet Union resulted in an international effort to criminalize elements of ethnic cleansing.[2] The Apartheid Convention attempted to criminalize apartheid in the 1970s, which had elements of ethnic cleansing—notably forced expulsion and homogenization—but fell short with a mere 26 signatories and little real world effect.[3] After the end of the Cold War, ethnic cleansing in Yugoslavia[4] prompted the international community to create the Rome Statute and the International Criminal Court to permanently criminalize genocide, war crimes, and crimes against humanity.[5] Although elements of ethnic cleansing campaigns, like massacres and forced expulsions were criminalized in international criminal law, ethnic cleansing was not created as a freestanding crime.[6]

Regrettably, ethnic cleansing has continued at an alarming rate around the world since the time the Rome Statute was adopted.[7] New Draft articles on Prevention and Punishment of Crimes Against Humanity propose to close loopholes in existing enforcement of crimes against humanity, yet have not proposed a freestanding crime of ethnic cleansing.[8] The development of the Draft articles more than 20 years after the Rome Statute entered into force suggests that there is a continued appetite to create new international criminal law, which may result in the creation of a freestanding crime of ethnic cleansing in the future.

Ethnic cleansing is more useful as a concept than as a freestanding crime. International criminal law can be used to punish and deter ethnic cleansing.[9] However, there are too many flaws with the International Criminal Court (I.C.C.) for it to be an effective forum for punishing ethnic cleansing campaigns, compared with ad hoc tribunals or national courts, because the I.C.C. erodes national sovereignty reducing its legitimacy and offers insufficient notice and due process for defendants. Therefore, governments should work through the U.N. to: (1) improve definitions in the Rome Statute, (2) prioritize punishing the elements of ethnic cleansing campaigns in national courts, and (3) use an improved version of the Rome Statute as a standardized body of law to punish ethnic cleansing campaigns through ad hoc tribunals when created by the U.N. Security Council. Part I examines the definition and history of ethnic cleansing, as well as the incremental prohibition of elements of ethnic cleansing in international criminal law. Part II, in turn, will argue that the International Criminal Court is the wrong forum to deter ethnic cleansing campaigns and offer ways to deter ethnic cleansing campaigns in the future.

I. ETHNIC CLEANSING IN HISTORY AND INTERNATIONAL CRIMINAL LAW

A. Defining Ethnic Cleansing and Tracking the Phenomenon in History

Ethnic cleansing is a modern term for an old phenomenon.[10] The phrase emerged in the context of the 1990s Yugoslav Wars.[11] A United Nations Commission of Experts tasked to investigate human rights violations in the former Yugoslavia defined ethnic cleansing as “[R]endering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area. . .[as part of a] a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”[12] Armed groups in Bosnia, Croatia, and Kosovo used violence—including massacres and mass rape—to expel different ethnic groups from territory to consolidate control of that territory during the collapse of Yugoslavia.[13]

On one hand, inter-group violence is a recurrent pattern throughout history, while on the other modern states may be needed for the most refined and planful forms of ethnic cleansing.[14] “Modern racialist nationalism was necessary for ethnic cleansing in the twentieth century but not sufficient. . .The modern states takes the census, organizes cadastral surveys, counts, measures weighs, categorizes, and homogenizes. It reifies geographical boundaries and enforces zoning regulations.”[15] Modern states are uniquely powerful across many areas of social life and sometimes government leaders have incentives to homogenize their population to enhance control.

Photography, newspaper reporting, and the movement of large numbers of refugee raised concerns about ethnic cleansing in the early 20th century.[16] The well documented genocide of Armenians by the Ottoman Empire, and Jews, Poles, and Roma in the Holocaust by Nazi Germany involved both ethnic cleansing and genocide.[17] In the early 1920s, Kemal Ataturk’s Turkish nationalist faction that helped to mastermind the Armenian Genocide launched mass killing and ethnic cleansing of Greeks on the Turkey’s Aegean coast.[18] Turkish forces torched cities along their way and burned down the larger city of Smyrna, raping women, and deporting the Greek and Armenian population.[19]

The Soviet Union used ethnic categorizations as a way to control its population.[20] Many ethnic minorities such as Balts, Ukrainians, Georgians, and Jews initially enjoyed a more favorable status in the Soviet Union because of perceived prior oppression by the Tsarist governemnt.[21] But as the Soviet Union moved beyond the chaos of the Russian Civil War toward the extraordinary state violence of the Stalinist era, it increasingly used ethnic Russians as a reliable ethnic group to tie non-Russian territories back to Moscow or subdivided ethnic groups to establish control.[22] The workforce of collective and state farms was organized along ethnic lines by the central government in Moscow.[23] Soviet statisticians built on the 1897 Russian census to populate new lands and atomize the country to maintain control.[24] On the eve of World War II, beginning in 1937, the Soviet Union launched a series of deportations for ostensible security reasons, anticipating the possibility of future partisan activity on its frontiers.[25] It expelled Poles and Germans to Central Asia, Finns to Karelia, and Koreans to Kazakhstan—a particularly dry and remote part of the Soviet Union, far from national borders where these groups might be able to organize with outside powers.[26]

Although incidents of ethnic cleansing take different forms—such as massacres, destruction of property, and forced expulsions--there are many commonalities.[27] Ethnic cleansing commonly takes place during war, but can also occur in peacetime.[28] Mass murder and expulsion of Greeks and Armenians, Jews, Chechens, or Germans all accompanied war.[29] Modern nation-states may be particularly prone to carrying out ethnic cleansing campaigns.[30] In premodern warfare, it was more common for aggressors to allow targeted groups to surrender, change sides, convert, or pay tribute.[31] By forcing people of a targeted ethnic group to leave through violence, harassment, rape, or forced expulsion, government leaders can prevent members of that group from engaging in secessionism or gaining support from other countries and international organizations that could threaten the power of government leaders.[32]

Ethnic cleansing can be partial, targeting only members of a certain sex or sparing some individuals with valuable skills. Following a “gendercide” model[33], Turks allowed some Armenian and Greek women to convert to Islam and the Soviet Union allowed some Poles and Germans to stay in critically important factory jobs.[34] By contrast, the Soviet Union expelled every Chechen, regardless of party rank, sex, or specialized skill.[35] Greeks destroyed mosques while Turks destroyed Greek and Armenian churches. German perpetrators seized private property and demolished synagogues.[36] Both the Muslim majority Bosnian government and the separated Republika Srpska destroyed the opposing side’s homes.[37]

The entire world is organized into nation-states, while international institutions have simultaneously emphasized minority rights.[38] Thus, government leaders sometimes have strong incentives to use the language of integral nationalism to consolidate power over the dominant ethnic group in their country by scapegoating and forcibly removing minority ethnic groups. [39]

In the 1990s, when the term entered common parlance, international organizations recognized ethnic cleansing as a major problem and sought to end it.[40] Yet this sentiment has not necessarily yielded results in the intervening decades. Since the beginning of the current century, Myanmar[41] and South Sudan[42] have conducted campaigns of ethnic cleansing. China has repressed its Uyghur and Tibetan population[43] and both Russia and Ukraine have charged the other with “genocide,”[44] that more closely conforms to ethnic cleansing in the contested Donbas territories. Ethnic cleansing is a continuing problem in the 21st century that should be remedied, although making ethnic cleansing a freestanding crime in international criminal law is inappropriate.

B. Proscribed Without a Freestanding Crime: How Ethnic Cleansing Was Quietly Prohibited in International Criminal Law

Ethnic cleansing is effectively encompassed by crimes against humanity and genocide, although it has so far has not been treated as a freestanding crime.[45] Therefore, understanding the history of crimes against humanity is important to understanding the ways that ethnic cleansing can be punished in international criminal law.

International criminal law has its roots in early forms of war crimes law and international humanitarian law. Francis Lieber drafted the influential 1863 Instructions for the Government of Armies of the United States, used by the Union Army during the American Civil War.[46] The 1899 and 1907 Hague Conventions and the subsequent 1929 Geneva Convention instituted protections for prisoners of war and sought to prohibit some acts of war.[47] The 1899 Hague Convention was the first to hint at a concept of crimes against humanity, referring to unspecified “laws of humanity” in the Martens Clause in its preamble, propounded in the subsequent 1907 Convention.[48] These developments created precedent for international law and pointed the way toward the concept of crimes against humanity enshrined in international law.

In the midst of World War I, news of Turkish mass killings of Armenians reached Allied governments, prompting the European powers to condemn “crimes against humanity and civilization.”[49] European powers suggested that Turkish officials be prosecuted for crimes against humanity, although this never proceeded because the U.S. applied diplomatic pressure and objected that there was no such defined category of crimes.[50] As Allied forces toppled the Third Reich in 1945 evidence of more atrocities came to light across Europe—with similar crimes perpetrated by the Japanese Empire in East Asia.[51] Refugees fleeing the Soviet Union and the satellite states it created in Eastern Europe reported similar horrors perpetrated on the orders of Josef Stalin.[52]

The concept of crimes against humanity emerged out of the Nuremberg and Tokyo trials at the end of World War II.[53] In August, 1945, the Allies developed the Nuremberg Charter, subsequently duplicated in the Tokyo Charter, as the rules of procedure for the Nuremberg Tribunal to try Nazi leaders.[54] For the first time, a document contained a formal definition of crimes against humanity, in Article 6. “[Crimes against humanity include]: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[55] The Nuremberg Charter’s inclusion of crimes against humanity was significant, marking the first formalization of crimes against humanity in an international agreement. For the first time, two instruments entertained the possibility that atrocities against civilians might also be punishable, potentially with or without the nexus of war.

Polish lawyer Raphael Lemkin coined a new phrase in a 1944 book: “genocide.”[56] The phrase combined the Greek root word for a race or tribe with the Latin suffix for “kill.”[57] Lemkin urged the international community to permanently forbid genocide and his idea gained traction at the United Nations, resulting in the Convention on the Prevention and Punishment of the Crime of Genocide, ultimately signed by 149 countries.[58] The Convention attempted to make genocide an international crime and called for it to be punished in national courts or “an international penal tribunal,” but did not create an actual mechanism to try genocide cases.[59] At the time the Convention was drafted, it reflected the attitudes of the Soviet Union and European colonial powers that limited the scope of genocide.[60] Rather than encompass the broader “democide,” killing groups of people for political or economic reasons, genocide’s scope was constrained to religious, racial, and ethnic groups.[61] The Convention focused most of all on measures designed to “bring about the physical destruction [of an ethnic group] in whole or in part,” yet included acts beyond killing such as “causing serious bodily or mental harm to members of the group.”[62]

A year later, the 1949 Geneva Convention included Common Article 3, setting minimum standards in international armed conflict and non-international armed conflicts alike.[63] The Convention prohibits: “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”[64] Protocol I and Protocol II were added to the Geneva Convention in 1977, expanding protections for guerillas and non-state actors.[65] Both these instruments created forms of international humanitarian law rather than international criminal law per se, but fell short of criminalizing ethnic cleansing, genocide, war crimes, and crimes against humanity.

Throughout the duration of the Cold War, no international court existed to try genocide cases—or war crimes and crimes against humanity. Instead, countries opted for what might be termed self-help.[66] Israel famously abducted Nazi war criminal Adolf Eichmann in Argentina and spirited him back to Israel for a trial in 1960 that culminated in his execution by hanging.[67] The U.S. took the uncommon step of court-martialing William Calley Jr., a U.S. Army officer who killed 22 South Vietnamese civilians during the Vietnam War in the highly publicized My Lai massacre. Calley ultimately served three years under house arrest.[68]

The Eichmann trial and the Calley trial demonstrated that states could punish individuals responsible for serious atrocities without international criminal law. Nevertheless, the Cold War period was a time of impunity for atrocities, creating a perceived need for international criminal law in the 1990s. Leaders that committed acts of genocide, war crimes, and crimes against humanity largely escaped prosecution during the Cold War years.[69] For instance, Ugandan dictator Idi Amin may have killed up to 500,000 of his own citizens during the 1970s but ultimately died of natural causes in exile in Saudi Arabia.[70] Mengistu Haile Mariam led the Derg, a Marxist-Leninist military junta in Ethiopia that instituted a man-made famine on Ethiopian peasants throughout the 1980s, yet remains at large in Zimbabwe.[71] In stark contrast to the U.S. Calley trial, Soviet forces in Afghanistan, Portuguese forces in Africa, and other counter-insurgency forces escaped significant punishment for depredations against civilians.[72]

An important step toward freestanding international criminal law came in 1973. The International Convention on the Suppression and Punishment of the Crime of Apartheid—the Apartheid Convention—came into being, in reaction to the abuses of South Africa’s white minority government against its black majority population.[73] The Apartheid Convention nominally criminalized racial discrimination in international law, although it was only adopted by 26 countries, raising the possibility that discrimination against an ethnic group could be an international crime, in a way broader than the prohibitions in the Genocide Convention.[74] This was an important step toward international criminal law standards that encompass ethnic cleansing because it included racial discrimination, which could be used to homogenize an area.

The agreement was proposed by the Soviet Union and its Marxist-Leninist allies in Eastern Europe for largely cynical reasons, because the Soviet Bloc was trying to weaken and embarrass South Africa—a key U.S. ally in Africa—even as it engaged in similar practices domestically, and sought to expand its political influence in Africa.[75] In practice, South African citizens traveling to the Soviet Union would be protected by diplomatic immunity or be informally protected as part of trade missions, and thus would not face prosecution.[76] The Soviet Union had assumed the mantle of Third World internationalism and anti-colonialism despite its own unclean hands: throughout the 1960s, the Soviet Union expelled ethnic Kazakhs in the Virgin Lands Campaign, paving the way for ethnic Russian settlement of the steppes.[77]

The Apartheid Convention was one of the only international criminal laws of its time, contemplating an “international penal tribunal” to enforce the crime of apartheid, regardless of a country like South Africa’s consent, although this tribunal was never actually formed.[78] It also challenged South Africa’s sovereignty, criminalizing “any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups.”[79] This essentially encompassed one potential form of ethnic cleansing: forced expulsion of an ethnic group to a different location to increase the homogeneity of an original location.[80]

As the post-Cold War world continued to interpret the legacy of Nazi and Soviet crimes, as well as atrocities committed during the Cold War, it had to contend with contemporary atrocities that helped to inspire the development of international criminal law. Saddam Hussein massacred hundreds of thousands of Shia Arab rebels throughout 1991 in southeastern Iraq and used nerve gas on Kurdish villagers in 1988.[81] Rwanda experienced a genocide in April, 1994, with nearly 800,000 ethnic Tutsis killed by the Hutu majority ethnic group. Yugoslavia imploded, with ethnic cleansing, massacres, and the siege of Sarajevo in Bosnia—and subsequent claims of Serbian ethnic cleansing of Kosovar Albanians.[82]

The mid-1990s witnessed the creation of ad hoc international tribunals to address genocide in Rwanda and war crimes in the former Yugoslavia.[83] The International Criminal Tribunal for Rwanda was established in Arusha, Tanzania.[84] National governments orchestrated the extradition of 72 individuals to face trial.[85] Most defendants held senior positions in the Rwandan national government, regional governments, or military, but the ICTR also prosecuted leaders of a major radio station and newspapers for genocide.[86] Unlike the ICTR, the International Criminal Tribunal for the former Yugoslavia (ICTY) had continuing jurisdiction over subsequent crimes in the region so that it could try crimes that took place after the time of its creation.[87] Although the ICTY was intended to deter subsequent crimes in the region after the time of its creation, its creation did not immediately achieve that result. As it held its first trial in July, 1995, leaders of the Republika Srbska carried out the Srebrenica massacre.[88]

Both ad hoc tribunals relied on statutes specially created by the U.N. Security Council[89], that echoed aspects of the Nuremberg Charter.[90] Article 5 of the ICTY Statute defined crimes against humanity as “crimes when committed in armed conflict, whether international or national in character, and directed against any civilian population: (a) murder, (b) extermination, (c) enslavement, (d) deportation, (e) imprisonment, (f) torture, (g) rape, (h) persecutions on political, racial, and religious grounds, (i) other inhumane acts.”[91] The ICTR Statute contained the same list of crimes, but eliminated the nexus of war, thereby expanding crimes against humanity to a broad spectrum of cases that could include non-wartime ethnic cleansing.[92]

In addition to the ad hoc tribunals, the 1990s witnessed the creation of hybrid tribunals, held in national courts with U.N. support, with some international staffing.[93] The Special Court for Sierra Leone sought to try warlords, while the Extraordinary Chambers of the Supreme Court of Cambodia was used to try leaders of the 1970s Khmer Rouge.[94]

Although the Apartheid Convention was the first to contemplate some form of permanent international tribunal to punish apartheid, the end of apartheid in the 1990s did not ultimately involve any action by an international tribunal. South Africa’s National Party manufactured a 1992 referendum among white, Coloured, and Indian voters in favor of the end of apartheid and multiracial elections brought former political prisoner, Nelson Mandela, to power in 1994. South Africa established a Truth and Reconciliation Commission to study the legacy of apartheid and grant immunity to those that committed crimes during the apartheid period in exchange for an admission of responsibility, demonstrating that a country could remedy the impacts of ethnic cleansing through amnesty without international criminal law.[95]

In 1996, the International Law Commission made an initial attempt to codify crimes against humanity law in its Draft Code of Crimes Against Peace and Security of Mankind.[96] Article 18 of the Draft Code laid out the elements of crimes against humanity, including some that encompass aspects of ethnic cleansing.[97] “(e) persecution on political, racial, religious or ethnic grounds; (f) institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) arbitrary deportation or forcible transfer of population; (h) arbitrary imprisonment; (i) forced disappearance of persons.” Article 20 defined further war crimes including: “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies,” limiting one way that might ethnic cleansing might take place.[98]

In 1998, initial ILC definitions were updated into the multilateral Rome Statute, creating the International Criminal Court (I.C.C.) as a body complementary to national jurisdiction and independent of the U.N.[99] On July 1, 2002, the Rome Statute entered into force and the I.C.C. began operating.[100] The court gained a limited jurisdiction for genocide, crimes against humanity, aggression, and war crimes committed after July 1, 2002 by the national of a state party in the territory of a state party or in a different state that has ratified the Rome Statute.[101] The I.C.C. also gained jurisdiction over the crime of apartheid, as an element of crimes against humanity, conceptually delinked from South Africa.[102] The U.N. Security Council has a privileged ability to expand the jurisdiction of the court by referring crimes to the I.C.C. Chief Prosecutor.[103]

Arguably, the I.C.C. has tried to prosecute ethnic cleansing under the umbrella of other crimes on one occasion. For instance, the I.C.C. manifested a willingness to prosecute ethnic cleansing without saying so explicitly in 2008, the prosecutor issued an indictment for President Bashir of Sudan, alleging forced expulsion of 2.7 million people, genocide, and war crimes.[104] However, the I.C.C.’s attempt to prosecute forced expulsion was ineffective. Despite issuing two arrest warrants, and Bashir being deposed by a coup in 2019, the I.C.C. has still not obtained custody over Bashir and thus has not proceeded beyond the pre-trial phase.[105]

The International Law Commission issued the Draft articles on Prevention and Punishment of Crimes Against Humanity in 2019, indicating that international criminal law will likely expand in the future.[106] Despite repeated promises that crimes against humanity will “never again” be permitted, such crimes have continued to occur in the 21st century, prompting the new drafting initiative.[107] The Draft articles largely imitates references to crimes against humanity in the Rome Statute. Article IV would impose an affirmative duty of prevention on signatory states, whereas Article VI calls on countries to prohibit crimes against humanity in their national law.[108] The Draft articles seek to punish commanders and subordinates alike, with options for national courts or “[a] competent international criminal court or tribunal” to bring charges against a defendant.[109]

Neither the Rome Statute nor the Draft articles have ethnic cleansing as a freestanding crime but both instruments do in effect proscribe ethnic cleansing by prohibiting attacks directed against a civilian population, extermination, “deportation or forcible transfer of population,” and persecution.[110] The work on the Draft articles, more than two decades after the Rome Statute’s adoption, suggests that international criminal law will continue to expand in the future, raising the prospect that ethnic cleansing may become a freestanding crime in the future in a bid to prevent ethnic cleansing campaigns.

II. WHY CURRENT INTERNATIONAL CRIMINAL LAW IS THE WRONG WAY TO PREVENT ETHNIC CLEANSING

A. International Criminal Law: A Flawed Jurisprudence for Ethnic Cleansing

Ethnic cleansing is not a freestanding crime, but most elements of ethnic cleansing are currently criminalized under the Rome Statute.[111] The Rome Statute and the I.C.C. as constituted since 1998 is a flawed jurisprudence to deter ethnic cleansing. The I.C.C. has brought only a handful of prosecutions at high cost, resulting in few convictions.[112]

Definitions in the Rome Statute are vague, raising the possibility of biased legal campaigns against national governments that deter many of the world’s great powers from cooperating with the I.C.C. Moreover, the Rome Statute might even encourage some government leaders to launch ethnic cleansing campaigns to prevent future international pressure on behalf of ethnic minorities. For a country’s nationals, the Rome Statute usurps sovereignty, preventing a country’s own legal system from holding government leaders accountable for ethnic cleansing and potentially preventing something like South Africa’s Truth and Reconciliation Commission from achieving closure after ethnic cleansing. Additionally, the Rome Statute does not contain adequate notice or due process to government leaders who might face prosecution for crimes against humanity. Improved definitions would make the Rome Statute a standardized statute for ad hoc tribunals, but the foregoing drawbacks do not ameliorate the I.C.C.’s deficiencies as a way to prevent ethnic cleansing.

Many national governments may fear that the I.C.C. will be used as a political tool against them by domestic dissidents or foreign adversaries. U.S. commentators have spoken to these concerns most clearly and similar concerns could be extrapolated to other non-signatories like Russia, China, and India.[113] The I.C.C. has also risked alienating entire regions through lopsided prosecutions, as when it prosecuted exclusively African defendants throughout the 2000s and 2010s.[114]

Some of these cases fell apart in spectacular fashion, signaling that the I.C.C. was internally disorganized or lacked international support. Congolese militia leader Thomas Lubanga was set free after prosecutors refused to share U.N. documents with judges and defense lawyers because they were obligated to honor a U.N. confidentiality agreement to receive the documents.[115] The case signaled that the I.C.C. had some commitment to due process, but alarmed intelligence and law enforcement agencies that they would have no guarantee of confidentiality if they assisted the I.C.C.[116] By bringing only a small number of cases, at high cost, allowing cases to fall apart, and alienating national law enforcement agencies, the I.C.C. has shown itself to be an ineffective body for international criminal law enforcement.

This ineffectiveness is reinforced by the many undefined terms in the Rome Statute. For instance, even enumerated crimes are little explaned: it is unclear whether the “crime of apartheid” is the same as “apartheid” described in the Apartheid Convention. Depending on how broadly apartheid is defined by the I.C.C., indigenous land grants (like Indian reservations in the U.S.) or poor ethnic minority neighborhoods could be framed as apartheid, and used as the basis to prosecute government leaders. The Rome Statute does not clearly grant national governments a safe harbor to deport illegal migrants or expropriate land with compensation for economic development.

The existence of the Rome Statute and the I.C.C. might perversely encourage some unscrupulous government leaders to launch ethnic cleansing campaigns, especially if the I.C.C. is perceived as a threat but one that is less credible than economic or military retaliation by great powers. For decades, ethnic minorities have appealed to the international community for support, sometimes winning international backing.[117] Full sweep expulsions tend to ultimately be recognized as legitimate by the international community.[118] Few seriously propose reparations or right of return for ethnic Germans expelled from East Prussia, western Poland, or the Czech Sudetenland.[119] Meanwhile, Israel faces protracted international pressure to grant civil rights, land, or independence to Palestinian Arabs, who were never fully expelled from territory controlled by Israel.[120]

Although the example of apartheid in South Africa predates the I.C.C. it is a useful analogy to consider. There, the white minority government of South Africa faced diffuse international pressure to end discriminatory treatment of its black majority, arguably comparable to the remote threat of eventual prosecution by the I.C.C.[121] Faced with this pressure, South Africa’s leaders essentially chose to ethnically cleanse parts of the country, herding black residents into bantustans—special reservations that it nominally granted independence to—thus boosting its non-black population through a legal fiction. Only after the diffuse, remote threat of international sanction became more pointed when even great powers like the U.S. imposed sanctions on South Africa after 1986 did South Africa end apartheid and disband the bantustans.[122]

International criminal law potentially deprives countries of the ability to prosecute defendants within their own courts, thus eroding sovereignty, because a prosecution in an international court diverts time, money, and testimony from a prosecution in a national court. Serbia and Montenegro, successor state to Yugoslavia, reluctantly handed over its former leader Slobodan Milosevic to international prosecutors at a NATO airbase in Bosnia over objections from the Serbian president about the extradition.[123] Although Serbia and Montenegro could have chosen extradition on political or philosophical grounds, news coverage of the handover indicated that it was essentially coerced with vital international funding predicated on the extradition.[124]

The I.C.C. prosecuted only African defendants during its first two decades of existence, although it did conduct preliminary examinations on other continents.[125] This track record raised concerns about paternalism, seemingly holding African defendants to a different standard and prompted a backlash against the I.C.C.[126] In 2016, South Africa unilaterally withdrew from the Rome Statute after Burundi began the process of pulling out of the agreement, although it revoked its withdrawal in 2017.[127]

International criminal law suffers from many inherent due process problems.[128] The ad hoc tribunals of the 1990s and the I.C.C. lack jury trials, raising the risk of bias by judges.[129] The I.C.C. accepts hearsay evidence and anonymous evidence, potentially limiting the ability of defendants to mount a successful defense.[130]

Going back to the days of the Nuremberg Tribunals, critics have warned about inadequate notice of liability for international crime.[131] It is difficult to require individuals to adhere to a standard if the standard is unknown, and without proper notice prosecution may be unfair. For example in Prosecutor v. Mucic, better known as the C̆elebići Case, the ICTY Trial and Appeals Chamber could not agree whether the prosecution was rooted in the Rome Statute or general principles of international law, offering a prime example of inadequate notice.[132]

The Draft articles aim to close loopholes in the Rome Statute for crimes against humanity. However, the Draft articles as currently constituted do not improve notice, due process, or address the uncertain definitions that dissuade many national governments from cooperating with the I.C.C.[133]

If the Draft articles or Rome Statute were modified to include ethnic cleansing as a freestanding crime, this alone would not do any more to prevent ethnic cleansing campaigns than current crimes because of the inherent problems of notice and definitions in the Rome Statute. Even if these definitions were changed, ethnic cleansing is most useful as a concept rather than a freestanding crime because it is easier to improve definitions for existing crimes rather than create another poorly defined crime in the Rome Statute.

These deficiencies point the way to prosecution in national courts or ad hoc tribunals that might provide the greatest notice, due process, and sovereignty.

B. Addressing Counterpoints

The negotiations that created the Rome Statute suggest a wide range of philosophical viewpoints on the efficacy of the I.C.C. and international criminal law more broadly.[134] Therefore, before forging ahead with a proposal to prevent ethnic cleansing in the future, it is important to consider arguments in favor of the I.C.C. as a venue for prosecuting ethnic cleansing and the merits of ethnic cleansing as a freestanding crime.

Many of the criticisms of the I.C.C presented in the preceding section could be seen as benefits of the I.C.C. by its proponents, most of all the Rome Statute’s role in overriding national sovereignty. If government leaders and military commanders are the perpetrators of ethnic cleansing, then it might arguably be best to “pierce the veil” of national sovereignty to ensure accountability. Yet, this view misses key aspects of the I.C.C. By overriding sovereignty, the I.C.C. ignores its origins in the multilateral Rome Statute, negotiated by nation states. Moreover, it threatens to be a rogue and unaccountable organization, controlled by no one, and given to bias—either as a neocolonial instrument enforcing Western ethics on the world or as a cudgel against superpowers.

Broad definitions and indeterminate due process guarantees might also be seen as benefical, allowing the broadest flexibility in prosecuting government leaders that carry out ethnic cleansing campaigns. Yet, this reduces legitimacy, because prosecutions may appear selective when applying largely subjective definitions. Additionally, lack of explicit due process protections—even if typical of many court systems worldwide—leave the impression of unfairness and bias on the part of the court, with prosecutions and convictions as foregone conclusions, rather than considered decisions.

Then, there is a proposed opposing viewpoint that ethnic cleansing should be made a freestanding crime, although no existing documentation explicitly calls for this approach. If the goal is to prevent ethnic cleansing, then making ethnic cleansing as a freestanding crime would remove any prosecutorial indeterminacy if a situation does not neatly fit the existing broad definitons of crimes against humanity, genocide, or war crimes.[135] Adding more terms is more likely to engender indeterminacy, allowing governments to debate classification rather than take action.[136] Ultimately, the arguments in favor of prosecuting ethnic cleansing in the I.C.C. or the proposed arguments in favor of ethnic cleansing as a freestanding crime are insufficient, and merely second best approaches to preventing ethnic cleansing.

C. Deterring Ethnic Cleansing: The Way Forward

Deterring ethnic cleansing is a valuable goal. Although the I.C.C. can in theory deter ethnic cleansing, in practice it is second best to national courts and ad hoc tribunals because it erodes sovereignty, operates at very high costs without appropriate notice and due process, and has alienated three of the five U.N. Security Council members because it can so easily be hijacked for lawfare against great powers.

The Rome Statute, albeit with improved definitions, remains a potentially useful instrument. It could be used to set a baseline for legal notice for future ad hoc tribunals created by the U.N. Security Council, rather than creating standalone statutes for each tribunal as was the case with ICTR and ICTY.

The Rome Statute begins to provide notice, yet needs clearer definitions to improve notice, enhance due process, and uphold sovereignty. Specifically, the Rome Statute should include: (1) permission for countries to expropriate land for economic development and deport illegal migrants with due process, (2) a numerical threshold for crimes against humanity so that a single killing cannot constitute a crime against humanity, and (3) eliminate the crime of apartheid because it is too vague about whether it proscribes speech or prevents support to indigenous groups like reservations in the U.S. Moreover, the Rome Statute should include due process enhancements like: (1) a prohibition on hearsay and anonymous evidence, and (2) juries or panels of judges selected through a voir dire-style process.

The U.N. Security Council’s permanent members are not elected and in that sense pose risks to the sovereignty of other countries. Nonetheless, the U.N. Security Council does represent five of the world’s most powerful countries. The five permanent members do not share identical foreign policy views and moreover, non-permanent members on the U.N. Security Council rotate.[137] Therefore, the U.N. Security Council is probably less likely to be overwhelmed by bias or play favorites than the I.C.C. To further affirm sovereignty, the U.N. Security Council could limit ad hoc tribunals to only countries that have already signed and ratified the Rome Statute.

National courts are the best venue to punish ethnic cleansing, as encompassed by crimes against humanity, because national courts show that a country’s own legal system is able to punish government leaders who have conducted ethnic cleansing campaigns within that country. This is more emblematic of accountability and rule of law than the abstract and far away I.C.C. in the Hague. Actually achieving successful prosecutions in national courts could be difficult, because of loyalists entrenched in the court who favor a government that has carried out an ethnic cleansing campaign. To overcome these difficulties, the U.N. could provide resources including personnel much like the hybrid tribunals in Cambodia and Sierra Leone.

Ethnic cleansing campaigns can be dettered. Deterrance should take place through national courts and ad hoc tribunals, with pressure applied through traditional state-to-state relations. There is no need to create a freestanding crime of ethnic cleansing, but there is a need to improve definitions in the Rome Statute and use it as a baseline of notice and due process for prosecuting crimes against humanity that comprise ethnic cleansing.

CONCLUSION

Ethnic cleansing and forced expulsion amount to a serious abuse of human rights. Despite exuberance about international criminal law that culminated in the Rome Statute and the creation of the International Criminal Court in 1998, ethnic cleansing never became a freestanding crime in international criminal law. Rather, it is effectively prohibited under international law against genocide, war crimes, and crimes against humanity.

So far, in the 21st century, nation-states have persisted in ethnic cleansing campaigns with potential incidents recognized in Myanmar, Ukraine, Sudan, South Sudan, and other states. However, adding ethnic cleansing to international criminal law as a freestanding crime raises serious concerns about appropriate definition, preventing uneven prosecutions, and permitting legitimate state actions like expropriating land with compensation or expelling illegal immigrants.

Expanding liability for ethnic cleansing through international criminal law could easily result in unintended consequences that might even encourage governments to undertake ethnic cleansing. Compared with an international agreement, countries should try to prevent ethnic cleansing through traditional reciprocal statecraft—filing diplomatic complaints, imposing economic sanctions, or using military force—rather than erode sovereignty. Indeed, national courts are the best venue for prosecuting ethnic cleansing as a form of crimes against humanity. In other instances, a Rome Statute with better definitions might serve a preventive role if used to set a standardized baseline for ad hoc tribunals created by agreement of the U.N. Security Council.

REFERENCES [1] See Ethnic Cleansing, United Nations, (2023), https://www.un.org/en/genocideprevention/ethnic-cleansing.shtml#:~:text=rendering%20an%20area%20ethnically%20homogeneous,and%20terror%2Dinspiring%20means%20the (hereinafter UN Ethnic Cleansing Definition); see also Ethnic cleansing, Encyclopedia Britannica, (2022), https://www.britannica.com/topic/ethnic-cleansing. [2] See generally Norman M. Naimark, Fires of Hatred: Ethnic Cleansing in 20th Century Europe, 7-8 (2002) (hereinafter Fires of Hatred). [3] See Convention on Apartheid, Nov. 30, 1973, 1015 U.N.T.S. 243 (hereinafter Apartheid Convention); see also Peter Geschiere, et al., Survival in the ‘Dumping Grounds,’ 186 (2019). [4] See Why Do We Need an International Criminal Court, United Nations, (1998), https://legal.un.org/icc/general/overview.htm. [5] See Rome Statute of the International Criminal Court, art. 6-8, 37 I.L.M. 999, 2187 U.N.T.S. 90 (hereinafter Rome Statute). [6] See Rome Statute, art. 6-8. [7]See Leila Nadya Sadat, Little Progress in the Sixth Committee on Crimes Against Humanity, 54 Case W. Res. J. Int'l L. 89, 90-93 (2022) (hereinafter Sadat). [8] See id. [9] See, e.g., Bruce Zagaris, ICTY finishes last trial with conviction of Mladic for genocide, war crimes, and crimes against humanity, 33 No. 12 Int'l Enforcement L. Rep. 462, 462 (2017) (“The Trial Chamber convicted Mladic for commanding violent ethnic cleansing campaigns across BiH with the object to permanently remove Bosnian Croats and Muslims through broad and systematic crimes”). [10] See Ethnic cleansing, United Nations Office on Genocide Prevention and the Responsibility to Protect, (2023), https://www.un.org/en/genocideprevention/ethnic-cleansing.shtml (hereinafter U.N. Definition). [11]U.N. Definition., supra note 10. [12] U.N. Definition., supra note 10. [13] See Paul Mojzes, Balkan genocides: holocaust and ethnic cleansing in the twentieth century, Chapter 8 (2011). [14]Fires of Hatred, at 7-8. [15] Fires of Hatred, at 7-8. [16] See Fires of Hatred, at 46-47. [17] Fires of Hatred, at 46-47. [18] Fires of Hatred, at 46-47. [19] Fires of Hatred, at 48-49. [20] Fires of Hatred, at 48-49. [21] See Terry Martin, Origins of Soviet Ethnic Cleansing, 70 J. of Modern History, 813, 825 (1998) (hereinafter Origins of Soviet Ethnic Cleansing). [22] Fires of Hatred, at 85. [23] Fires of Hatred, at 86. [24] Fires of Hatred, at 86. [25] Origins of Soviet Ethnic Cleansing, at 831. [26] Fires of Hatred, at 88. [27]Fires of Hatred, at 187. [28]Fires of Hatred, at 187. [29]Fires of Hatred, at 190. [30]Fires of Hatred, at 190. [31] Fires of Hatred, at 190. [32] Fires of Hatred, at 190. [33] See generally Adam Jones, Gendercide in Kosovo, International Studies Association, (March 18, 2000), https://ciaotest.cc.columbia.edu/isa/joa01/ (explaining that mass killing is often targeted by sex, traditionally—and in modern examples like the Kosovo War—targeting men while sparing the lives of women). [34] Fires of Hatred, at 191. [35] Fires of Hatred, at 191. [36]Fires of Hatred, at 191. [37] Fires of Hatred, at 193. [38] See Minority Rights: International Standards and Guidance for Implementation, 2 (2010). [39] Fires of Hatred, at 199. [40]See Fires of Hatred, at 199. [41] See Myanmar Rohingya: What you need to know about the crisis, BBC, (Jan. 23, 2020), https://www.bbc.com/news/world-asia-41566561. [42] See Tom Miles & Ed Cropley, Ethnic cleansing going on in South Sudan: U.N. commission, Reuters, (Dec. 1, 2016), https://www.reuters.com/article/us-southsudan-un-idUSKBN13Q4SU. [43] See Joel Gunter, China committed genocide against Uyghurs, independent tribunal rules, BBC, (Dec. 9, 2021), https://www.bbc.com/news/world-asia-china-59595952. [44] See Dominique Soguel, When does atrocity rise to the level of genocide?, Christian Science Monitor, (May 25, 2022), https://www.csmonitor.com/World/Europe/2022/0525/When-does-atrocity-rise-to-the-level-of-genocide. [45] See Rome Statute, art. 6-8. [46] Sean D. Murphy, Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Combatants,” 75 Geo. Wash. L. Rev. 1105, 1108 (2007) (hereinafter Murphy). [47] Murphy, at 1151. [48] Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, ICRC, (April 30, 1997), https://www.icrc.org/en/doc/resources/documents/article/other/57jnhy.htm. [49] Luban, et al., International Criminal Law, 956 (2010) (hereinafter Luban). [50] Luban, at 956. [51]Luban, at 956. [52]Luban, at 956. [53] Leila Nadya Sadat, Crimes Against Humanity in the Modern Age, 107 Am. J. Int'l L. 334, 337 (2013) (hereinafter Sadat) (citing Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, GA Res. 95(1) (Dec. 11, 1946); J. Spiropoulos (Special Rapporteur), Formulation of Nürnberg Principles, UN Doc. A/CN.4/22 (Apr. 12, 1950)). [54] Constitution of the International Military Tribunal, (1945), https://avalon.law.yale.edu/imt/imtconst.asp. [55] See id., at art. 6 [56] Caleb King, “Never Again” Must Not be a Meaningless Mantra: The Case for U.S. Support of the International Criminal Court, 52 Cal. W. Int'l L.J. 145, 148 (2021) (hereinafter King). [57] King, at 148. [58] King, at 148. [59]Convention on the Prevention and Punishment of the Crime of Genocide, Art. VI. [60]See King, at 148. [61] See King, at 148. [62] Convention on the Prevention and Punishment of the Crime of Genocide, Art. II(b)-(c). [63] Murphy, at 1115. [64] Murphy, at 1115. [65] Murphy, at 1116. [66]See Murphy, at 1116. [67] See Eichmann Trial, Holocaust Encyclopedia, (2023), https://encyclopedia.ushmm.org/content/en/article/eichmann-trial. [68] Peter Ross Range, Only One Man Was Found Guilty for His Role in the My Lai Massacre. This Is What It Was Like to Cover His Trial, Time, (March 16, 2018), https://time.com/5202268/calley-trial-my-lai-massacre/. [69] See generally South Africa Urged to Bring Ethiopian Dictator to Justice, Human Rights Watch, (Nov. 24, 1999), https://www.hrw.org/news/1999/11/24/south-africa-urged-bring-ethiopian-dictator-justice. [70]See id. [71] See id. [72] See R.J. Rummel, 20th Century Democide, Death by Government, (Nov. 23, 2002), https://www.hawaii.edu/powerkills/DBG.CHAP1.HTM. [73] Adam Sitze, The Crime of Apartheid: Genealogy of a Successful Failure, 7 London Rev. Int'l L. 181, 195 (2019) (hereinafter Sitze). [74] Sitze, at 195. [75] See generally Seth Singleton, The Future of Soviet Influence in Africa, National Council for Soviet and East European Research, (Oct. 27, 1987). [76] Sitze, at 197. [77] See Lewis Siegelbaum, Virgin Lands Campaign, Seventeen Moments in Soviet History: Michigan State University, (2023), https://soviethistory.msu.edu/1954-2/virgin-lands-campaign/. [78] Sitze, at 196 (only 26 countries ultimately signed the Apartheid Convention). [79] Sitze, at 196. [80] See, e.g. U.N. Definition Ethnic Cleansing. [81] See Crimes committed during the regime of Saddam Hussein, European Union Agency for Asylum, (Jan. 2021), https://euaa.europa.eu/country-guidance-iraq-2021/crimes-committed-during-regime-saddam-hussein#:~:text=Saddam%20Hussein%20and%20the%20Baath,Kurdish%20people%20were%20systematically%20persecuted. [82] See Fires of Hatred, 7-8. [83] Stephen J. Rapp, Achieving Accountability for the Greatest Crimes—The Legacy of International Tribunals, 55 Drake L. Rev. 259, 269 (2007) (hereinafter Rapp). [84] Rapp, at 269. [85]Rapp, at 269. [86] Rapp, at 272. [87] Rapp, at 267. [88] Rapp, at 267. [89] See S/RES/827; see also S/RES/955. [90] Luban, at 958-59. [91] ICTY Statute, Art. 5. [92] See ICTR Statute, Art. 3. [93] See Sara L. Ochs, A Renewed Call for Hybrid Tribunals, 52 N.Y.U. J. Int'l L. & Pol. 351, 365-68 (2020) (explaining that hybrid tribunals were intended to restore national ownership and enhanced legitimacy compared with ad hoc tribunals, but often had limited jurisdiction and unclear division of authority between national and international staff members). [94] Rapp, at 284 (although these two courts were not created to address ethnic cleansing, they stand as an important example of international criminal law and domestic criminal law combined in a single body, which could be a more sovereignty-affirming way to deter ethnic cleansing in the future). [95] Sitze, at 200. [96] Sadat, at 341 (citing Report of the International Law Commission on the Work of Its Forty-Eighth Session, UN Doc. A/CN.4/SER.A/1996/ Add.1 (Part 2), reprinted in 1996-II Y.B. INT'L L. COMM'N 17, 45, available at http://untreaty.un.org/ilc/publications/ yearbooks/Ybkvolumes(e)/ILC_1996_v2_p2_e.pdf). [97] Art. 18, https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_4_1996.pdf. [98] Art. 18. [99] Fanny Benedetti, et al., Negotiating the International Criminal Court : New York to Rome, 1994-1998, 167 (2014) (hereinafter Benedetti). [100] King, at 152. [101] King, at 153. [102] Sitze, at 200-201. [103] King, at 154. (As of 2023, referrals have only occurred twice: in 2005 for Darfur and 2011 for Libya.) [104] Rough Justice, at 144. [105] See Samy Magdy, Official: Sudan to hand over al-Bashir for genocide trial, AP, (Feb. 11, 2020); see also Al Bashir Case, International Criminal Court, (2023), https://www.icc-cpi.int/darfur/albashir. [106] Yearbook of the International Law Commission, 2019, vol. II, Part (hereinafter Draft articles). [107] See Sadat, at 90. [108] Draft articles, Art. 4. [109] See Draft articles, Art. VI, Art. VII, Art. X. [110] See Draft articles, Art. II. [111] See UN Ethnic Cleansing Definition; see also Rome Statute, art. 6-8. [112] See Daniel Abebe, I.C.C.’s Dismal Record Comes at Too High a Price, New York Times, (Dec. 12, 2014), https://www.nytimes.com/roomfordebate/2014/12/11/do-we-need-the-international-criminal-court/iccs-dismal-record-comes-at-too-high-a-price. [113] See U.S. Policy Regarding the International Criminal Court (ICC), Congressional Research Service, 3 (Aug. 22, 2006), https://www.everycrsreport.com/files/20060829_RL31495_aec404eb09ff2eae7c3311360dfd7d1dc89f3107.pdf (explaining that the U.S. government fears servicemembers and government leaders could be seized and tried with international crimes); see alsoWhy does the International Criminal Court not have more support?, The Economist, (April 21, 2021), https://www.economist.com/the-economist-explains/2021/04/21/why-does-the-international-criminal-court-not-have-more-support?utm_medium=cpc.adword.pd&utm_source=google&ppccampaignID=17210591673&ppcadID=&utm_campaign=a.22brand_pmax&utm_content=conversion.direct-response.anonymous&gclid=EAIaIQobChMIgYz2xIn1_QIV8zizAB2vmgHoEAMYASAAEgJgh_D_BwE&gclsrc=aw.ds (explaining that countries like Russia, China, and Saudi Arabia are concerned national government leaders could be prosecuted for human rights abuses). [114] See David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics, 139 (2014) (hereinafter Rough Justice). [115] Rough Justice, at 140. [116] Rough Justice, at 140. [117] See “This Is Our Home”: Stateless Minorities and their Search for Citizenship, UNHCR, 9 (2017). [118] See, e.g. Raymond A. Smith, The Status of the Kaliningrad Oblast Under International Law, 38 Lituanus 6, 52 (1992). [119] See id. [120] See generally A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, Human Rights Watch, (April 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution. [121] See Philip I. Levy, Sanctions on South Africa: What Did They Do?, 796 Economic Growth Center: Yale University 2, 3-8 (1999) (hereinafter Levy) (international pressure could be said to be diffuse because only small economies, OPEC, and the Soviet Bloc sanctioned South Africa to a significant extent before 1985, whereas sanctions from large economies like the U.S. and Western Europe had a much more focused effect after 1985). [122] See Levy, at 8. [123] Milosevic extradited, BBC World News, (Jun. 28, 2001), http://news.bbc.co.uk/2/hi/europe/1412828.stm. [124] Id. [125] See Cases, International Criminal Court, (2023), https://www.icc-cpi.int/cases; see also Preliminary Examinations, International Criminal Court, (2023), https://www.icc-cpi.int/situations-preliminary-examinations. [126] See John Mukum Mbaku, International Justice: The International Criminal Court and Africa, Brookings Institution: Africa Growth Initiative, 9, 9 (2014). [127] Jean-Baptiste Jeangene Vilmer, The African Union and the International Criminal Court: counteracting the crisis, 92 Int’l Affairs 1319, 1319 (2016); see also South Africa revokes ICC withdrawal after court ruling, BBC, (March 8, 2017), https://www.bbc.com/news/world-africa-39204035. [128] See Ted Galen Carpenter, At I.C.C., Due Process Deficiencies Mar Credibility, New York Times, (Dec. 11, 2014), https://www.nytimes.com/roomfordebate/2014/12/11/do-we-need-the-international-criminal-court/at-icc-due-process-deficiencies-mar-credibility. [129] Id. [130] Id. [131] See Opening Statement before the International Military Tribunal, Robert H. Jackson Center, (2023), https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/. [132] Oona A. Hathaway, et al. What is a War Crime?, 44 Yale J. Int'l L. 53, 78 (2019). [133] See, e.g., Draft articles, art. 2, art. 11 (reiterating virtually unchaged definitions of crimes against humanity and omitting procedural due process guarantees for defendants). [134] See Benedetti, at 11-15. [135] See, e.g., Linnea D. Manashaw, Genocide and Ethnic Cleansing: Why the Distinction? A Discussion in the Context of Atrocities Occuring in Sudan, 35 Cal. W. Int'l L.J. 303, 330 (2005). [136] See id. [137] See Ian Johnstone, Legislation and Ajdudication in the UN Security Council: Bringing Down the Deliberative Deficit, 102 Am. J. Int'l L. 275, 300-301 (2008).

Image Credit: Magdalena, Unsplash