CEU eTD Collection In partialfulfilmentthe requirements of for the degree of Master ofLawinHuman RIGHTS VIOLATIONS: WILL THE KING EVER SUBMIT HIMSELF TO HIMSELF SUBMIT EVER THEKING WILL VIOLATIONS: RIGHTS CRIMINAL RESPONSIBILITY OF HEADS OF STATE FORHUMAN OF STATE OFHEADS CRIMINAL RESPONSIBILITY Supervisor: Professor Ana Filipa Vrdoljak Department ofLegalStudies Central European University , Walter Acii Ojok Submittedto THE LAW? Rights 2009 By CEU eTD Collection be inspired by my life journey. Many more thanks go tomy family, especially my to siblings back in whoUganda, Ihopewill of public international law thatI would nothave asmuch appreciated if haddoneI not work. this this thesis. Ialso particularly thank her for encouraging me explore,to to afurther depth, a realm I would like toexpress my Professorgratitude to Ana Vrdoljak for supervising and guidingme in ACKNOWLEDGEMENTS i CEU eTD Collection SYSTEM...... 53 CHAPTER 4: THE POTENTIAL WITHIN THEROME STATUTE PERCEPTION...... 26 OFHEADS OFSTATE:CHANGING CHAPTER 3:IMMUNITIES ILTOS OAD NOCMN...... 6 VIOLATIONS: TOWARDS ENFORCEMENT...... RIGHTS REPRESSION OFHUMAN CHAPTER 2:ACRIMINAL HPE :ITOUTO ...... 1 ...... CHAPTER 1: INTRODUCTION iv SUMMARY...... i ACKNOWLEDGEMENTS...... 4.1 Understanding the Rome Statute’s Two Pillar ...... 53 System 3.3 The Evolving International Jurisprudential...... 39 Trends 3.2 Doctrinal History and Theories of Officials ...... 32 Immunities 3.1 A Typological Overview of the Doctrine; aPost-Modernist Enquiry...... 26 2.4 Culpability of Heads of State for Human Rights ...... 20 Violations 2.3 Increasing Focus on Individual Criminal Responsibility...... 17 2.2 The Emerging International Criminal Law: Roles and ...... 13 Potentials 2.1 Redress of Human Rights Violations in the Post ...... 6 1945 Era 1.1 Exceptions. 3.3.2 Does not Immunity Equal Impunity? Evaluating ICJ’sArrest Warrant 4Prong the3.3.1 From Arrest toCharles Warrant (Yerodia), Taylor,to Al Bashir. 2.4.2 2.4.2 The Obstacles of Personal and Functional immunities The Paradoxof 2.4.1 Diminishing Criminal Legal Responsibility Summary ...... 44 Layout of Thesis ...... 5 TABLE OF CONTENTS OF TABLE ii ...... 23 ...... 21 ...... 40 CEU eTD Collection BIBLIOGRAPHY...... 93 ANDCONCLUSION...91 CHAPTER 5:GENERALRECOMMENDATIONS 5.1 A Way Forward and Conclusion...... 91 Obligation to Give Effect tothe Arrest Warrant. The Arrest4.1.5 Warrant Al forPresidentOmar Bashir: DebateonState The Party 4.1.4 Supposed Conflict Between theTwoImmunity Clauses (Article 27 andArticle 98) Laws Applicableto 4.1.3 the Courtand Other actors 4.1.2 ICC Crimes, Jurisdictionand Rationale: An Overview 4.1.1 Historical Reasons and Purpose ofthe Rome Statute iii ...... 72 ...... 58 ...... 56 ...... 57 61 CEU eTD Collection reflective of established international customary law. customary of international established reflective as and basisconsidered the mystical truth as isa nearly accepted claim the rhetorically Yet relations’ immunities. to official interstate is‘stability linkingof above, noresearch there assumptions of immunity to the rigor of modern legal investigation. For example, as noted underlyingthe theoretical very reviewedsubject little of But immunities. works scholarly the narrative hardly yet presentedquestioned, without any sound scholarly basis proof.or Official from Foreign Criminal Jurisdiction is Jurisdiction Criminal Foreign from Official of State on Immunities report 2008 LawCommission’s International by the advanced currently reason andthe hasstronger, only immunity leadersgrown retaining on of state insistence the however, contrast, sharp In immunities. blanket of supportive less become increasingly have jurisprudence and scholarship on subject,the notes literature, legal of andanalysis review broad a has comprised which research, confidence. The particularly those that expressly purport derogateto immunities—will also risk the loss of public impunity. If strugglethis islost, the massive human normativerights frameworks—and officials immune otherwise from isprosecution final the battleground in fightthe against establishing headsand of that of responsibility of criminal high-ranking the state other state is thesis the of premise main The rules. these to subject be should violations rights human gross other and crimes international of prosecution the whether examining of view the with general, in Second, much has been written on the doctrinal history of and rationales for official First, is that the theories that for centuries have anchored the notion of official immunities This thesis reassesses the doctrine of head-of-state immunities and, of official immunities official of and, immunities head-of-state of doctrine the reassesses thesis This EXECUTIVE SUMMARY iv the sakestable relations of among States inter alia, the following:-the trite law . A CEU eTD Collection cases of international crimes would do irreparable damage to interstate relations. The research The relations. interstate to damage irreparable do would crimes international cases of in immunities official of restriction further that claim the support to exists evidence whether sponsored andterror suppressing state violations be ofhuman met. rights in the human rights arena. Yet without the removal of relations. It is quite ironical why the idea of retributive action continues to inform the arguments in a restrictions haveresulted the that advanced the argument not have and immunities onofficial restrictions accepted transactions, against fight andoverall court the access to to right respect needthe to (dueto prosecution individual’s claim criminal draws the culpability. impactattentionno the Yet, to of delayed buttressedby immunity for claim the officials state that isalter only not an procedural and does is view This states. other of officials high-ranking and state of heads for issued courts/tribunals international of warrants arrest the executing from states preventing as immunity on law the of interprets currentstate the view inisthat scholarly anemerging aboverooted decisions, the on states this should extension occurregardless ofthe existing binding prosecutorial extends even to cases of crimes of peremptory norms of norms peremptory of cases of crimes to even extends fact of April 112000 of suits against suits the In light of the findings, this thesis urges a redirection of the debate to the question of in for sphereof have example, the commercial spheres, inother states Lastly, Pinochetcase Third,judicialhanded major some down decisions thewithin lastdecadewith regard to by various serving seniorstateofficials (DRC international treaties to prosecute such crimes. In a similar tone, are perhaps are tone, asimilar In such crimes. prosecute to treaties international argue that, under customary law, immunity international undercustomary arguethat, v. Belgium), the tit for tat pattern of retributive action to threaten interstate Qaddafi case, Qaddafi , most notably, , most immunity) v impunity on the due process rights of victim’s, their and immunity the Case ConcerningtheArrest Warrant jus cogens jus Al-Adsani v.UnitedKingdom, Al-Adsani . obstacles, hardly can the goal of status. The argument is that argument The status. obligation ratione personae imposed and in and CEU eTD Collection police force. These concerns are addressed in detail, and recommendations are offered. My areoffered. recommendations and detail, in addressed are concerns These force. police an mechanismitis acourtwithout inpositionenforcement of claim ofthe ICC lightor that the consider I Second, immunity; official to is entitled ordinarily who state asovereign of as president position official AlBashir’s given warrant, arrest ICC’s of the of state execution the the debate about the warrant in two ways. First, I look at the question of both the legality of andSudan’s incumbent Omar president, haveinjected critical HassanAlBashir. I legal analysis into 4Marchthe issuedfor Warrant andArrest of 2009 ICCinternational currently againststanding analogy. by covered been also have immunity international enjoy who officials ranking heads of state since they enjoy the most blanketform of immunities. The situations of other high- of the study, this study scope Asregardsthe debate. in immunity-impunity (ICC) the Court Criminal of International the is limited to consideration of the criminal responsibility of functional necessities of state officials. can that respect solutions sametime at the immunities, and removal the of for against and arguments the weighs challenges, epistemological out the sets keyconcepts, defines perspective, edge of evolution.this human protectionthe of since1945andnotes atthe as repression trend criminality of rights impunity impunity discourse. onimmunity- not scholarship it merebutresearch-based promotes legal rhetoric, debates, filling while agapincurrent therefore, violations. Inessence, human effective redressof rights the and relations ofinterstate abalance thepreservation between amovement towards urges also purposes and challenges posed in contemporary legal legal literature. posedin andpurposes contemporary challenges In order to provide research that is action oriented, this thesis considers as a case in point asacase considers thesis this isoriented, action that provide research to In order Chapter 1 is a general introduction of the subject, that is, the research, the history, and the Chapter 3 examines the notion of thenotion immunity examines from of a post-modern Chapter IV, vi the finalthe chapter Chapter 2 , evaluates the possible role possible the evaluates reviews the evolution the reviews incumbent CEU eTD Collection The world would thus be a safer place for the travel bothof heads of state and average citizens. normative frameworksliein not procedural absolute immunity butrather elsewhere, is, that in in utilizing existing a manner that leaves major human rights violators no place to hide. were an as if they criminal tribunals/courts international from originate that warrants arrest to give effect to necessary measures all taking by immunity in ending be proactive to community international for the is recommendation The effect. to that factual evidence ifis no stability there interstate for responsible is immunity that belief the aside put community international the of members that isit recommended Therefore system. justice of criminal any components essential are the immunity between Article 27andArticle 98of Romethe could Statute beresolved. suggests how regard to tension the with that Analysis isprovided of arrest. warrant March 2009 against Omar Al Bashir“twothis pillar system notion” inbuilt and its mechanisms byillustrating cooperation thecase and particularly the obligation of states parties to give effect to the 4 effectively execute decisions that come from the Statute’s “ Statute’s come the from that decisions execute effectively “ Statute’s Rome of is will been lacking the has what Rather, suggest. not is ICCis madethe and that matter, argument the this of for resolution battleground ultimate the states if taskagainstimpunitythe is toemerge The victorious. findingis that ICC the provides is commitment Unitedmemberof the individual required Nations Security of Council and UN than legal findings inones suggest thisimmunity-impunity battle, that, many more there are political challenges in the process of taking custody of incumbent heads of state. Unwavering inherently lacking in asmanyenforcement capabilities, scholars and practitioners seem to The conclusion is drawn that both timely execution of arrest warrants and speedy trials speedy and warrants arrest of execution timely both that drawn is conclusion The obligation erga omnes . The conclusion is that solutions to the threat of interstate chaos interstate of threat the to solutions that is conclusion The . vii judicial pillar enforcement pillar .” The thesis presents ” to CEU eTD Collection Am. U. Int'l L. Rev. 897. Arrest Warrant forSudanese President OmarAl-Bashir” AmericanUniversity International Law Review 2009 24 4 Justice,Volume 7(2009) Issue 2 Oxford University Press, 2009, pg 325. 3 2 concepts.” separate quite are responsibility cited to I.C.J. Rep I.C.J. to cited 11 April2000 (Democratic of Congo the Rights” (The Hague; Boston: KluwerAcademic Publisher, 1997)9. Courts.” ( Berlin; New Springer,York 2005), “The State Immunity Controversy Internationalin Law : Private Suits Against Sovereign States inDomestic on the Congo 1 individual criminal responsibility are mutually atexclusive norms—not conflict. international law scholars international Paola Gaeta leaders? indicted of lawfully seekProfessor arrest the jurisdiction with tribunals criminal international when context horizontal in the arrest from immunity and in context from vertical the makeprosecution immunity between is to case, adistinction there for individualcourts/tribunals In on states dependentof execution the theirarrest warrants. this by of criminal international incumbent heads state issued lawfully against warrants the absolute inviolability of the official from all coercive acts of foreign states. of Warrant April Congo 11 2000(DRC Arrest the in concerning case the of Justice, Court —aswasInternational bythe affirmed courts foreign before highrankingand ofstate heads of prosecution officials the prohibit other serving only not does immunity personal law, international In state. of heads serving of prosecution full impactof if examines the inaccurate one however,is Paola Gaeta “Does President Al Bashir Enjoy Immunity from Arrest?” Journal of International Criminal Id., See, e.g See The Arrest Warrant Case The Arrest e.g Cassese Antonio “WhenSenior State Officials May Be Tried ForInternational Crimes? Some Comments In legal the prevailingbe scholarships, view seemsto thatofficial immunity and doctrine Given the above, a conundrum would arise in relations to states’ execution of arrest of execution states’ to in relations arise would conundrum a above, the Given Lucas Buzzard “Holding an Arsonist's Feet to the Fire? - The Legality and Enforceability of the ICC's the of Enforceability and Legality -The Fire? the to Feet Arsonist's an “Holding Buzzard Lucas v. Belgium Case”, at p ara 60 ara para 58 4 , the court stated “ think there is there is a distinction to be made. This view has also has view This made. be to a distinction is is there there think European JournalInternational of Law CHAPTER 1: INTRODUCTION CHAPTER see v. Belgium,) the nature of the immunity immunity guarantees of the also Belgium,)nature the Brohmer Jürgen “State Immunity and the Violationof Human v. Belgium),[2002] I.C.J. Rep.536 3I.L.M. [Congo Immunity from criminal jurisdiction and individual criminal 1 See The Case Concerning the Arrest Warrant of Warrant Arrest the Concerning Case The , 13(2002) 853,also , immunity rationae 2 see 3 and many others many and personae 1 Bankas, Ernest K. This distinction This v. Belgium on the CEU eTD Collection Bashir’s recent bid for a re-election despite the grave charges standing against him. against standing charges grave the despite a re-election forbid recent Bashir’s absolute thatconfers framework normative human in facerights of an occurs overarching the moreover,meaningful This, redress. avenuesfor victimsviolations uncheckedandwithout the in perpetuity. power state cling to incentivebecome to have an protections suchloosely regulated some states, enjoy forsuch immunity, the sake of stable relations among States.” to officials State needfor tothe “due[...] accord priority to haveCommission the urged as states states., majority by of be the wellreceived immunity appears to personal thatabsolute indicates Jurisdiction Foreign from Official State of Immunity on Convention UN draft the on report in years,is in recent indictments a smokesreality screen. leaders’ instate may rise appear asapromising demonstrating what that words, other 9 Kolodkin). Jurisdiction, U.N.Doc. A/CN.4/601 (May 29, 2008) (prepared by Special Rapporteur Roman Anatolevich 8 2009) page14. 7 6 5 sentence.” of form some served seventeen only , or state of heads sixty-seven against ninety-nineindictments reveals of “[o]ut that of State, Heads studies onProsecuting current and former. Recent studies, such as the Ellen Lutz and Caitlin Reiger’s collection headsjurisprudence and immunities the subjectof official states— of the prosecution of on of case in leadership positions. suspects of burdens handmaidenjustice theprosecution unduly butarulebecomes notthe that of been echoed by the ICJ. International Law Commission [ILC], Preliminary report on Immunity of State officials from Foreign Criminal Press, University Cambridge (NewYork: (eds). ofState”, Heads “Prosecuting Reiger Caitlin and L. Lutz Ellen Id., para 58 54 Para Case, Warrant Arrest SeeThe See David M Crane “From Karadzic to Omar Bashir” On the other hand, the International Law Commission’s (ILC) May 2008 preliminary 2008 May (ILC) Commission’s Law International the hand, other the On As a matter of matter drew of methodology,host oflegal literatureand As on work a this a 9 The effect may be a spiral of wrongdoing, that by and large leaves continuing 5 Precisely therefore, immunity although claimed beto a procedural rule 2 Times , Excerpts, July also see 24, 2008, Al 8 To the aid of the leaders of 7 In 6 CEU eTD Collection 16 15 14 13 12 55 ICLQ 411-426; Lorna McGregor, “State Immunity Jusand Cogens” (2006) 55 ICLQ 437-445. 11 relations among States.” draft to accord “due priority [...] to the need forState officials to enjoy such immunity, forthe sake of stable Jones Aristide Tachiona in claim torture the to Rights, Human of 10 exceptions immunity. tostate human list questions of onthe rights and ignored already Immunity Property Their States of immunity. official retain they one is right tobe sceptical of the outcome of such alaw, given the strong insistence of states that Jurisdiction, Criminal Foreign from Officials State of Immunity on Convention the on continues disregard the jurisdiction over such andprovidescrimes an unequivocal mandatetostates that they may official positions of offenders in such circumstances. As the drafting process of Foreign Affairs, Mr. Yerodia Abdulaye. This initiative resultedMinister Congo’s inby the International committed allegedly Courtcrimes of war the over jurisdiction universal implement to sought Belgium when case, Warrant Arrest 11 April the is, this of example known well most venuesbeen denied.The inhas state also foreign headsstate of incumbent redress against pursue to procedural immunity option arena, upheld.the Inthecriminal was unequivocally unfortunate indecision AlAdsani from the ranges lackof success This was successful. incourts foreign states headsof incumbent See see Christopher Keith Hall, “UN Convention on State Immunity: The Need for a Human Rights Protocol” (2006) See See See See See Bouzari Al-Adsani UN Doc (A/CN.4/577, para. 126,). The UN General Assembly expects the ILC, in its work on the ongoing Tachiona Jones Lafontant v. Just during the past two decades, none of several Justduringdecades, claims pasttwo none several againstbrought the of civil torture 14 SaudiArabia in Kingdom in the United 2006. in the U.S, to Douzard to in theU.S, v. Saudi Arabia [2006]UKHL 26 v. v. Islamic Republic of OntarioIran, Superior Court of Justice (01.05.02) 114 A.C.W.S.(3d) 57; 2002 v. v. Mugabe, 00Civ. 6666 (US District Court So. of District NY 2001). Aristide, 844 F. Supp. 12 (US E.D. NY 1994) United (No.2) (35763/97) European Court of Human Rights 21 November2001 paras 35 –41 11 This would be the second normative blow in less than a decade. 10 The 2004 UnitedNations Convention on Jurisdictional the v. v. The Republic of Iran inCourt The Superior theRepublic ofIran Ontario The , United The 3 v. Mugabe, 16 In all the above civil claims, absolute 12 which went to the European Court European the to which went 13 and, previously, to Lafontant and, to previously, 15 , and to v. CEU eTD Collection 20 such as genocide, warcrimes, andcrimes against humanity. of evenifheisaccused she or state, of another courts the before proceedings headis immunefrom criminalandcivil absence ofstate of waiver, anincumbent the both a state 19 18 17 King,” theDivine of thedoctrine of asa“relic treated was immunity head-of-state of defence the where and forum judicial a international at occurred of doctrine the rejection first the where Tribunals, Nuremberg of the practice The criminal investigation. to open state engage liftinrulersexpect forwould immunity andleave to themselves practices that them is to unrealistic immunity. It law state of on official the current for the a sound foundation not criticized in many paperthis on The grounds. reliance solely on ICJarestrongly of the that This view and international crimes. and other genocide accused of disregard immunity even donotempower to ifinstruments states the heads of theyare state, of international law, as it then was (and today still could be), it has been “ on relied the ICJ subject, law)on the law (treaty hard inWarrant the DRCCongoJustice decision (ICJ)2002Arrest thus urges stronger initiatives, if state if initiatives, urgesstronger state leadersthus aretobe tojustice.brought intellectual theories in order to insulate leaders from prosecution. This paper has established and modern in be clothed not should mentality wrong” no do can “king the that argument the See Robert Jackson, “ Report to President”the (1945) 39 Supra ArrestThe Warrant Case para 59 (DRC Congo Id.,., para 59 See the Case Concerning Arrestthe Warrant of April 112000, decisionof ICJ the of Feb 2002 This opinion today forms the basis for the argument that international human rights human international that argument the for basis the forms today opinion This jurisdiction under these conventions. remain These Affairs. opposableForeign for Ministers of those including law, international customary under to them requiring extend thereby their criminal jurisdiction, such extradition, extension or of jurisdiction in no way of prosecution affects immunities before obligations States on impose crimes although various international conventions on preventionthe andpunishment of certain serious the courts of a foreign State, even where those courts exercise such a 19 v. 4 Belgium) AJIL , 178, 182 18 The decision went on to state that. state to on went decision The state practice v. Belgium. state practices firmly establishedfirmly 20 can be a foundation for 17 to hold under that, to Due to the lack of jus cogens , in my view, is ” that, in crimes CEU eTD Collection Court. obstructing and the International theAl Bashirof Criminal Sudan arrest surrenderto of Omar Articleprovisions of 98and27,particularly legal currentwith regard tothe is absurdity that state and offers new ways for resolving emerging conflicts from seeminglythe contradictory Part IVexplores thepotential system thewithin Romefor Statute trying anincumbenthead of of theoriesthe immunity, increasinglyunderpinning although losing modern Finally, acceptance. andfunctional necessityimmunities,is whileis removal against of adiscussion preserved. There from immunity redefines and a post-modern for thearguments key perspective, concepts, weighs of notion the on 3takes Chapter crimes. international of be seenasthecore cometo have today in actions which certain stage,” lastly, and, “criminalization stage,” the “enforcement the stage,” “prescriptive the stage,” “declaratory the stage,” is, “enunciative law; the that human rights shaped have that stages five the on emphasis an with violations, rights human redress to need contemporary legal Chapterlegal 2examinesevolving international literature. tothe responses its challenges, researchthe its in through of and history,a review purpose, discussion 1.1 Summary Layout of Thesis The thesis is structured as follows: Chapter I presents a general introduction to the subject of 5 CEU eTD Collection 25 24 23 TUL. 8 NewCentury, of the Dawn the at Protection Rights Human of System Inter-American the of Perspectives and Human Rights Crimes 22 also discussion municipal matterregulated at the municipal sphere is outside the regulatory powers of international law. Forfurther Journal of International Law (London/New York: Routledge, 1997)pg 209. 21 ofsanction” by threats the supported sovereign, include JohnAustin (1790-1859). scholars Such sense. strictest in the ‘law’ valid was law’ if ‘international doubted scholars state. of another territory prevailed matter.” internal an at as[purely] was considered the time, nationals own and their states between relationship “the when as a period era above the describes signalled a non-interference approachlegal regimes. domestic internal respective andtheir states to eventsredress of human rights violations, occurring regardless of the gravity of the abuses, was left to withinindividual 2.1 Redress ofHuman Rights Violations inthe Post1945the Era redress inadequate. redress was internal its that or violation a redress to unable or unwilling is inquestion state the that today, Id., Supra Malanczuk 8editionpages 209-211 See See See PeterMalanczuk, loc., cit., fn27 pages17. Wolfgang Kaleck, Michael Ratner, Tobias Singelnstein and Peter Weiss (eds), Weiss Peter and Singelnstein Tobias Ratner, Michael Kaleck, Wolfgang J. INT'L & COMP. L. PeterMalanczuk,“Akehurst Akehurst's ModernIntroduction to International Law” 7 CHAPTER 2: A CRIMINAL REPRESSION OF HUMAN RIGHTS OFHUMAN REPRESSION 2: ACRIMINAL CHAPTER Also, this ofinfancywas period in the internationaldevelopment of law. Infact some II), World War decade after first duringleast the (and at era War II pre-World In the see Jose .E. Alveraz,“International OrganizationAs Law-Makers, Oxford University Press 200. Human Rights Law (2008)Review 8(3): 571-577. VIOLATIONS: TOWARDS ENFORCEMENT TOWARDS VIOLATIONS: 5(2000): 40-46 22 (1998) 2 pg 325 discussing (1998)2pg325 Kelsen’s theory argued monist which he that no in International law simply did not offer an alternative. Peter Malanczuk Peter alternative. an offer not did lawsimply International 24 To Austin, anything other than “the than ToAustin, a other command anything of general See François Rigaux “HanKelsen on International Law” 6 25 was not law. In his view, international law did law international view, his In law. not was 23 The focus sovereignty, on absolute which 21 Also It didnot matter then, as it does see Cancado Cancado Trindade, CurrentState InternationalProsecution of th revised ed. revised European CEU eTD Collection the International Covenant onCivil and Political Rights and its two Optional Protocols. Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and 33 Seriously (1977); See also, M.CRANSTON, What Are HumanRights? (London: Bodley Head,(1973). because they may simply be providing “benefits” other than “rights”. Also See Ronald Dworkin, Taking Rights 32 Politics and Dynamics of Human Rights (New York: Oceana Publications, Inc., 1968) 98. 31 30 29 xvii, 461 pp. Reprinted 2003 by LawbookThe Ltd. Exchange, ISBN 1-58477-325-1. as we understand today did not take off as a claim enforceable at international law. atinternational enforceable not off take didas aclaim as weunderstandtoday human rights to be perceived as strictly a legal concept. Made even more complex,human rights right,” “human Nations.jurisprudential Besides a and the about controversies theoretical whatconstituted auspices United wasestablished underthe the legal international of moremuch order vibrant hindrances, some stuntedits of which growtheven duringwhen theera, post-WWII a new a and inhabitants. its and state that between existing hostile however relationship [typelaw” of] is “inter-state by law international an definition opinion, Kelsen’s 28 law.” international of subjects are exclusively and solely States, “since the law of nations is based oncommon consent of individual States, and not of individual human beings, 27 26 era through the adoption of the Universal Declaration of Human Rights (UHDR) in 1948, States.” and“regulate between therelationship govern beings” but“individual of States.” human individual of not law “a is law international that in1912 wrote law) international of supporter strong regime. LassaOppenheim (a it law sawasa international encompassing wholly definition. this meet not The International Bill of Rights consists of three main international human rights instruments, namely; the Human Jennings and Watts edition, Oppenheim’s International Law, vol.1 (2008) Oxford Publishers. Oppenheim wrote; Id., pg 17. Id., supra Maurice Cranston Maurice Id., Id.,., See Hans KelsenPrinciples of International Law (1952) pg 201 New York: Rinehart & Company, Inc.[1952]. pg 201 The current International Bill of of Rights, Bill International The current Considered on its own, human rights as a theory alsohad some major conceptual fn 27., Malanczuk cautioned that international human rights treaties should be interpreted with care with be interpreted should treaties rights human international that cautioned Malanczuk 27., fn 31 the linking of human rights to “morality” made it even much difficult for difficult much even it made “morality” to rights human of linking the , What Are Human Rights? (London: Bodley Head,(1973), 26 However, this is not to say that scholars who believed in the validity of 27 HansKelsenfollowed in 1952 with a similarview. 7 33 which duringoriginated War the post-World II 30 This relationship excluded internal See Moses Moskowitz, The Moses Moskowitz, 32 29 designed to 28 In CEU eTD Collection before the Court.” the before 37 36 http://www.un.org/en/documents/udhr/(Last visited Oct 29 2009) 35 nations.....” all and peoples all for of achievement standard acommon as RIGHTS HUMAN OF DECLARATION UNIVERSAL 34 moreover, was in a nonbindingpresented “declaration.” of practice a norm” the for standard “common a towards understanding an of expression an of form the in emerged achieving human rights and freedoms for all peoples and nations.” for standard andcommon of principle “a statement merely its face valueas UDHR the at neighbouring states and international peace. Such states, in the words of Lord Browne-Wilkinson repression that would result in gross human rights violations of policies pursue deliberate determined to wereregimes that there War experiences World II and also affect both the security of states would be illogical. Moreover, many world leaders knew very well even from their pre- adecision leave forin human violations individual Holocaust, hands the to redress rights of jurisdiction. such itwas denied its creation, of in process the ICJwhen, to the state(s) their cases against court only to states in its Article 34 (1). of UNinby the access to the was established Charter for restricted exampleexpressly 1945, the which (ICJ), Justice of Court International The plane. international the on claims such hear to competence hadtheadjudicatorial that a single court not was there justiciable, be consideredto for remedying human rights violations at international law. Even if the claims in the UDHR were basis legal a provide in itself it could nor claim, legal justiciable an internationally import itself Article 34 (1) of the Statute of the International Court of at UThant justice in1971 remarks provides General that “Only seeUNSecretary Also states Id., may be parties in cases The preamble of the UDHR provides that “Now, Therefore THE GENERAL ASSEMBLY proclaims THIS proclaims ASSEMBLY GENERAL THE Therefore “Now, that UDHR provides of the preamble The 35 TheUniversal Declaration of Human Rights was adopted on December10, 1948, Yet in a world shocked and still threatened by the horrors of of World horrors and andYet in bythe WarII the shocked still a world threatened 34 rather than as an establishment of a “legal right” in the proper sense, and, in proper “legal the of a right” establishment as than an rather 37 Thus victims of human rights violations could not take 8 35 At the time of its adoption, states took 36 This declaration could not in CEU eTD Collection 42 trial. for over handed wasnever and Netherlands 41 IMT, Nuremberg, (14 Nov, 1945-Oct 1946) p. 41. before Criminals War of Major Trial Tribunal, Military International of the decision 3quoting pg Heidelberg, Berlin 40 International, (1997) pg 97 Oxford University Press. 39 Commissioner of Police for the Metropolis and ors (Appellants) Ex Parte Pinochet of 24 March 1999 pg 6. 38 by adopted General UnitedAssemblythe on Nations 11 December 1946. International Law codifyCommission to the Nuremberg and which Principles Judgement, was states that had not consented to its jurisdiction dissipated when the United Nations directed the law. international of matter relation to gross law” in “international of at enforcement attempt as root firstsuccessful the Nuremberg took human rights individualsbeinternational law such provisions commit who canthe of enforced.”crimes violations thatII. wereWar World of atrocities addressed the of perpetrators individual of trials in the role adjudicating at military theinternational an law” international international “upholding of name the in claim to arose, plane as a regimes.” their of own shortcomings the over adjudicate to never“were prepared case, in Pinochet’s Convention on Prevention the and of Crime Punishment Genocidethe of 1948 (hereinafter of Nations United the was first The law. international of matter as rights human of protection direction. In 1948 and1949,twomajorinternational instruments emerged that providedfor anew taken have law international of level the at violations rights human redressing about Noting that the attempt to try the German Emperor after WWI aborted because the Emperor took refuge in refuge took Emperor the because aborted WWI after Emperor German the try to attempt the that Noting Lord Browne-WilkinsonOpinion of Lordsthe of Appeal forJudgment in thecause Regina v.Bartle and The See See 39 See AccordingNuremberg’s to ChiefRobert Jackson,Prosecutor “[itis]... and only by punishing Ciara Damgaard, Individual Criminal Responsibility for International Core Crimes 2008, Springers-verlag Maurizio Ragazzi “The Concept of International Obligations Erga Omnes”, Oxford monograph of monograph Oxford Omnes”, Erga Obligations of International Concept “The Ragazzi Maurizio Lord Browne-Wilkinson Opinion speech in Pinochet case cited earlier, pg 6 earlier, case cited in Pinochet speech Opinion Browne-Wilkinson Lord Doubts about the Nuremberg Charter and questions about its authority to try nationals of nationals try to authority its about questions and Charter Nuremberg the about Doubts Thus, of with questionable Charter 1946 (although of Nuremberg the then legitimacy) 38 41 9 42 Since then, questions 40 CEU eTD Collection 1946 that genocide is crimea contrary to the spirit and aims of the United Nations. the declaration made by the General Assembly of the United Nations in its resolution 96(I) dated 11 December 49 countries other on prosecutionof war crimes, placing the samesuch obligation bring to shall prosecuteand onthe country Convention], persons, the [of regardlessin which of the breaches crimestheirgrave nationality, such took place before as its owncommitted, be courts." to ordered have to or committed, have 48 Convention also see ICRC website at http://www.icrc.org/web/Eng/siteeng0.nsf/html/genevaconventions soldiering committed by soldiering parties. committed any contracting state humanity,against for with the provision wrongs trial such rape,murder, andof as torture, child Additional of Protocols for auniversal jurisdiction1977, provided over warcrimes crimes and is nowar). there when even territories of civilians in war time andin situations of by occupation (thatforeign powers is, occupation of Convention whichin (IV), provide was adopted 1949 to specificprotection totreatmentrelating tribunals international before genocide committing of accused persons of trials to door the opened 47 punished, whether they are constitutionally responsible rulers, public officials or private individuals.” 46 jurisdiction. penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its tried by a competent tribunal of the State in the territory of which the act was committed, orby suchinternational 45 condemned by the civilized world. 1946 that genocide is a crime under international law,contrary to the spirit and aims of Unitedthe Nations and the declaration made by the General Assembly of the United Nations in its resolution 96(I) dated 11 December 44 Dec 1948,entered forceinto on12 Jan 1952. 43 war, either or by ina time of crimespeace canoccur genocide,definition of which as either crimes, international as werecategorized human rights of mass violations systematic, defencenor ajustification for non punishment. crime.” is an“international wartime,” timein or peace Convention), Genocide the called crimes and crimes against humanity, which by definition may occur in war time and also in times also and time in war occur may bydefinition which humanity, against crimes and crimes Article 1 of the Convention read together with Paragraph one of the preamble which reads “..Having considered “..Having reads which preamble the one of Paragraph with together read Convention of the 1 Article to alleged persons for search to obligation the be under "shall party each that declared Conventions Geneva The Article IV provide that “Persons committing genocide or any of the other acts enumerated in Article 3 shall be Article VI provides that: Persons charged with genocide or any of the other acts enumerated in article III shall be considered “..Having reads which preamble the one of Paragraph with together read Convention of the 1 Article Unanimously adopted without abstention by UN GA Resolution 260 (III) A of UNthe General Assembly on9 See Article 1, 2, 3-39 and 40-67. And foroccupied territories see SectionIII Also fordetailed discussion of the 45 ; it officialthe additionally would that position provided neitherof perpetrator the bea 43 which overtly declared that genocide, whether “committed whether genocide, whichdeclared that overtly 47 The Convention, when considered together with its two its with together considered when Convention, The 10 46 And the second instrument was the Geneva the was instrument second the And This language implies universal jurisdiction forthe 44 48 In its Article IV, the Convention the IV, Article its In Thus, from that point onward, 49 or as war CEU eTD Collection 57 56 53. Article of Treaties, law the on Convention Vienna character” permitted and which can be modified only by a subsequent norm of general international law having the same accepted and recognized by the international community of States as a whole as a norm from which no derogationis 55 54 53 http://www.un.org/documents/ga/res/39/a39r046.htm (Last visited Oct 29 2009). (“hereinafter Torture the Convention”) adopted on 10Dec 1984, Meering 93, A/RES/39/46.no 52 prosecution." "common of enemies mankindall andall nations have an inequal interest their apprehension and are because offenders the state byany offences arepunishable juscogens observation that committed.” wherever torture over jurisdiction in universal taking states justifies torture of crime of international nature the cogens crime jus cogens of category he went.” wherever international as an torture of [accrediting objective the “[...] in hisspeech, observed Browne-Wilkinson crime] was to ensure a general jurisdiction so that the torturer was not safe 51 Convention also see ICRC website at http://www.icrc.org/genevaconventions (Last visited Oct 2009) 50 behindPinochet, theextradition Augusto which inLondon inof occurred 1998/1999. Convention) of called1984. Torture the and PunishmentAgainst Degradingor Other Cruel, Treatment (hereinafter Torture or Inhuman Convention Nations United is the plane international the on redress rights human of significance Romethe Statute of 1998, for which Internationalthe hasCriminal jurisdiction.Court of occupation. Demjanjuk Id., pg 7 Article 53 of The Vienna Convention on the law of Treaties,3). 7(Pinochet defines pg at speech Jus cogens orBrowne-Wilkinson’s peremptory SeeLord Supra norm “[as] a norm Regina United Nations ConventionAgainst Torture Otherand Cruel, Inhumanor Degrading Treatment orPunishment Article 1, 2, 3-39 and Article 40-67.1, 2, Andforoccupied territories see SectionIII Alsofordetailed discussion of the See Article 8 of the Rome Statute. A third crucial humanlegal A third instrumentcrucial iscredited for theevergrowing that rights v. Bartle and The Commissioner of Police for the Metropolis and ors Ex Parte No3 Pinochet No3 Parte Ex ors and Metropolis the for of Police Commissioner The and Bartle v. Petrovsky (1985) 603F. Supp. 1468; 776 F. 2d. 57United States Court of AppealDecision. 57 50 The crimes in both conventions are listed among the core crimes in Article 8 of Article in crimes core the among listed are conventions both in crimes The 54 Like the two previous crimes discussed above, torture also falls under the 55 and, as correctly stated by the English Law Lord, “[t]he jus “[t]he Lord, Law English the by stated correctly as and, 56 This view was echoed in Demeanour v. Petro sky,in v. Thisview inDemeanour the wasechoed Petro 52 This convention was the principle legal framework legal principle the was convention This 11 51 53 As Lord CEU eTD Collection PUBL. ORDER 193 (1982), inD'Amato (ed. 1994), pp. 227-229 64 65 Rights (New York United Nations. 1983. UN Doc.ST/HR/2/Rev.2 UN Sales No. E.83.XIV 2. Chap II para 67.14 63 62 61 60 immunity. of the grounds claimant, a torture victim by the Government of Kuwait was denied civil compensationin the UK courts on the became enactedinbindingstage,” During“enforcement conventions. modalities the subsequent the“prescriptivemore values stage,” when specificFrom and became arose general this process instruments. international in terms general more in declared were identified values the which in stage,” “declaratory came the Then identified. were sharedvalues where universally stage,” sums up the evolution humanof as occurringinfiverights Thefirst stages. wasthe “enunciative 59 February 2002 General List No.121 (International Court of Justice), available at http://icj-cij.org. [2006] Al-Adsani in torture for claim civil unsuccessful marked and ever increasing legal importance,marked and everincreasing legal under conventions.” jurisdiction these exercise courts such a those where law[...]even international customary under immunities conventions on the prevention“the decision, whichruled international various from be ArrestWarrant that drawn ICJ the and punishment hierarchy theory, arestill laggingbehind the doctrine of immunity.official conclusion This can of certain serious crimes [...]in no way affects 58 which is the main theme of this thesis. As first noted in the Arrest Warrant case immunity, official of doctrine the is them among problematic most the and numerous, are norms Mugabe Supra Lafontant Tachiona Jones Al-Adsani See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congothe See See the 1971 Address by then UN Secretary General U Thant at United Nations Actions in the Field of Human Excerpts from M. Cherif Bassiouni, International Criminal Law and Human Rights, 9 YALE J. OF WORLD 60 v. The Arrest WarrantCase In conclusion, contemporary human rights have come a long way in the acquisition of acquisition in the way long a come have rights human contemporary conclusion, In The challenges in applyinguniversal in jurisdiction relation the aboveto threejus cogens 61 before the Houseof in Lords Unitedin Kingdom, and thethe U.S.cases v. Tachiona of Saudi Arabia[2006]UKHL 26 and Lafontant v. Aristide, v. v. v. Mugabe,00 Civ. 6666 (US District Court So. District of NY 2001). Aristide, 844 F. Supp. 12 (US NY E.D. 1994). United (No.2) (35763/97) EuropeanCourt ofRights Human 21November 35–41;2001 paras The para 59 62 63 it seems clear that jus cogens norms, despite the normative 64 12 albeit amid major obstacles. Cherif Bassiouni Cherif obstacles. major amid albeit v. United Kingdom, 59 in Jones v. Saudi Arabia v. Saudi inJones 58 v. and later in the later and Belgium), 14 65 CEU eTD Collection 71 May 2006. State 70 Free of University the at Law Evidence of and Law of Procedural Department to submitted Thesis 69 68 67 263”, Robert Jennings and Arthur Watts (eds), Opprenheim’s International Law (9 als Individual Criminal Responsibility forCore International (2008Sprinher-Verlag Crimes Berlin Heidelberg) 28,also “International Criminal law”,2 Criminal Law and Procedure”(LondonCambridge University Press,2007) pg,5.,also judicial forum and the reluctance of nations toprosecute perpetrators internationalof crimes.” criminal international an of absence “the by stunted been not growth its had old years 175 been Swanepoel,have in scholarly works and ICLcouldalbeit 2008respectively,according 2006 to Law” in International Public of newbranch itis “a relatively Nuremberg, datesalthough back that the1945/1946 Trials2008, observes that, to hasahistory of ICL 66 stage.” “rudimentary termed International Criminal Law (ICL),has developed gradually. establishment, contemporary this scholars, of a number To law. international of regime criminal emerging within discipline corpus of the publicinternational law developing afully-fledged Law: RolesandPotentials 2.2 TheEmergingInternational Criminal (2.2). section next the in aswill beis community at, illustrated tobewhereinternational currently appears This stage binding rights. legally certain forof theviolation law ininternational areprescribed penalties of enforcement were put in place. The fifth stage is the “criminalization stage”; during this stage, Swanepoel loc.,cit., fn 80, pg 21. Damgaard, loc.cit., fn 74, pg 28 Cornelis Francois Swanepoel “The Emergence of InternationalModern Criminal Justice Order” (2006) Doctoral 4 page loc. Id.,. Antonio Cassese, International Criminal law, Second Edition (Oxford) University Press, 2008)4 See see Georg Schewarzenberger, “The Problem of an International Criminal Law” (1950)3 Current Legal Problems Legal Current (1950)3 Law” Criminal International an of Problem “The Schewarzenberger, seeGeorg Robert Cryer, HakanFriman, Darryl Robinson, ElizabethWilmshurst “AnIntroduction to International The past two decades, is witnessing a steady growth in legal scholarship discussing an in discussing legal scholarship asteady decades, isgrowth witnessing two The past 68 Swanepoel nd ., edn.(London, Oxford University Press, 2008)pg4,also 69 and Damgaard 13 70 expresses in views similarseparate 66 th Antonio Cassese, writing in edn, London,1994) 5-7. 67 see and still is in the see Ciara Damgaard, Ciara Antonio Cassese, Antonio 71 CEU eTD Collection 75 Peterson, 2005 www.robertjackson.org (Last visited Oct 29, 2009). 74 the atrocitiesWarthe ofWorldcould IIhave beentried. ( applied retroactively be had to of Charter Nuremberg whythe thereason this lackwas that Ehrenfreund alsoargued during in “Reflection Nuremberg hisEhrenfreund,on the that whoremarked Trial”, 2005speech, espoused inby U.S.Judge(retired)The Norbert agreementwith that viewwould be above exist.” not does law international of branch a Such law. criminal international an of existence 73 72 humanity,against aggression genocide,torture, terrorism)makeand and to thosewhoengage in (war crimes, crimes conduct of categories both proscribe certain to designed rules international of body “a as defined be can ICL views, Cassese’s In law. international public of umbrella itself not aself-contained regime. ICL was conceived and has continued togrow under the broad above the especially considering comment. by are debatable, posited SchwarzenbergerThe arguments both andEhrenfreund therefore would flyin the faceof mass the of scholarshipin used drafting of the NurembergCharter. the scholarly view suggesting points, thatNuremberg was applying newlaw and notexisting law of theaggression, to question whenreferring said he crime,” international renowned ICL whowritingscholar, in that ICL did1947 argued not exist atthetime; “[a]n Remarks of Norbert Ehrenfreund, “Reflection on Nuremberg Trial” June 13, 2005 Transcribed by Charlene J. by Charlene Transcribed 2005 13, June Trial” Nuremberg on “Reflection Ehrenfreund, ofNorbert Remarks Georg Schwarzenberger, “The Judgment of Nuremberg” (1947)21 peace” against “crime old the for beanew name to known is of“Aggression” crime The Id., had to draft the penalties that went with those crimes. jurisdiction. writehad They to laws.hadthe They write to the statutes thatcrimes. the fit They there shouldThat summerof 1945therepresentatives of thefourAlliedmet powers in ... London todecide if be an international trial....There was no law. There was no court. There was no The possibility of The beingpossibility however, isICL anyolder,of refuted bySchwarzenberger, a Therefore, whileTherefore, weshouldas a regardICL in neverthelessisdevelopment it in progress, ex postfacto ) as there were no international criminal statutes under which statutes criminal international no were ) asthere 14 74 75 Tulane Law Review While these views raise interesting raise views these While 329at349. 72 “presupposes the 73 CEU eTD Collection 82 criminally prosecute and thereby repress human rights violations occurring in territories, their violations rights occurring human and repress thereby prosecute criminally impress needthe key states potential: to human rights-oriented two (i) upon potential the to mustStates, gradually to turn protectionthe humanof beings[...]” This in my ICL gives opinion, of legitimate interests the safeguarding duly law,course while of added that “International 81 80 Statute of the International Court of Justice, and to the hierarchy stipulated therein. notedcontrary, as by and Cassese,there regard given Damgaard, Article be should Cryer, 38ofthe to however, do not treat the laws of criminal tribunals or courts as the primary source of ICL. On the approach approach has been gradually supplanted by a human-rights-oriented-approach [...] Prosecutorv. DuskoTadic in for formerChamber the Appeal International Tribunal The centered. Yugoslavia (ICTY) 77 76 of interstate conflict. ishe amatter Aggression, notes, bygovernments.” committed own those their abuses including “[g]enocide andcrimes against humanity toprotectpersonsevolved from human gross rights that “[w]ar crimes [for example] originate from the lawsaccretion.” and customs law criminally makes international hascome author intoresponsible beingbygradual the of war,” liable.”such conductscriminally 79 78 courts.” international criminal law to be would lawapplicable the international criminal sense, strictest general international law.” under jurisdiction given been have tribunals or courts international which over offences “those as Tadic case ICTY 1995 para 97 Id Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst, loc. cit., fn. 74 page 1 Id., Id., page 4 Wise E.M et al“International Criminal Law: Cases and Materials.” Cryer loc., cit., fn 74 page 2 ., pg 1 page 4 Interestingly, almost all ICL crimes ICL all almost Interestingly, 79 On ICL crimes, Cryer considers that the sources of ICL crimes are varied. He states He varied. are crimes of ICL sources the that considers Cryer crimes, OnICL 77 The other suggested definition is by Robert Cryer, who defines international crimes international who defines is Cryer, by definition Robert suggested Theother 81 78 drew this link when it noted that: “A State-sovereign-oriented Wise, who espouses a similar view, wrote in 2006 that “[i]n the 76 Cassese adds that the list of “acts for whose accomplishment whose for listof “acts the that Casseseadds and their constitutive elements are human-rights right human-rights are elements constitutive their and 15 ( New 2000)4. York, The above views, 82 The Tribunal 80 and that and CEU eTD Collection international law traditionally aimed toprotect. aimed law traditionally international Rep 2006 86 security. and peace international and human rights between is there is linkage a close Second that neverprosecuted. get most part adjudicate by such leadership theirshortcomings. Thus own crimes a regime’s would forthe fairly not oppressive is do regimes 2.1 that, inlesson Thefirst Chapter discussed future. as the secure to need the and past the of lessons the both from arisen has era, II War post-World as wrongful acts attributable growth, This most state. the only to of backjust the which dates to omissionsacts and in or internationalwhich conventional law would havebeenregardedmerely criminalize to continues and criminalized has It mandates. these fulfill to inorder sovereignty inroads human intosuchas being”sacredspheres making “individual traditionally the major and human rights and for fundamental freedoms for all without distinction[ ...] distinction[ without 85 all for freedoms fundamental for and rights human 84 83 makers new law bearersand new rights actors, new and law ischanging, international of law. The“ of international and of purpose ICL have inmany ways led itto resolutely from depart traditionalthe conception nature above,the Giventhe gravecrimes. governmental of inthecommission culpable officials further increase its role in directly prosecuting andpunishing individuals, including high-ranking could ICL courts, and tribunals criminal international of system growing its through (ii) and added toICLlists, crimesbeing are revisited, traditional being emphasis also with an placedon criminal repression of violations. Lastly, as new crimes that are prevalent in the present timeemerging. With newthis rise, upholdingindividual asget amatterrights internationalof a demands See Jose .E. Alveraz “International Organization as Law-Makers” (Oxford University Press, New York , 2005) New York Press, University (Oxford Law-Makers” as Organization “International Alveraz .E. SeeJose Id., Forfurther discussion see Article 1(3) of Charter. the To achieve international co-operation[....]in promoting and encouraging respect for Note that states traditionally enjoyed exclusive monopoly overinternational law Chapter II. subjects 84 In fact the two are dependent variables. ” it seeks to protect are not” itseeks toprotect “ the 16 83 ICL is asserting the increasing importance of ICLimportance is increasing the asserting subjects 85 Third, perceptionthe ” that conventional 86 are CEU eTD Collection priority. universal the becoming isincreasingly human enforce rights tobetter how chapter, previous the 90 Nov. 1945-Oct 1945. Also See United Nations General Assembly Resolution177 (II), paragraph (a). 89 of humanity as much as genocide and other warcrimes do in thepresent-day. conscience the shock longer no would piracy that is difference only The character. constitute its among rape murder, 88 obsolete as it does not meet the modern requirement of international crimes. jurisdictionthe of the nascent International Criminal Court (ICC). Some commentators thatargue piracy becomehas 87 to impossible [be] would it authors, individual their to directly crimes of acts attributing “without notes, correctly asCassese Second, impotent. proved laws domestic parts, most the of international law be enforced.” entities,it and[that is] only by who individuals punishing commit such cancrimes provisionsthe by abstract bymen,not lawarecommitted international against “crimes proclaim to that first the Nuremberg wasperhaps trials at The in sections. previous the discussed some of were which grown alongside International Criminal Law, particularly majorlegalthrough developments, has that isanotion forcrimes international responsibility bear direct perpetrator(s) individual Responsibility Criminal on Individual Focus 2.3 Increasing law. international humanity.” of conscience the to shocking crimes international “core perpetrator’s state, with the assumption that domestic laws would punish domestic would perpetrators. punish the with laws that state, assumption perpetrator’s the the on squarely doing” wrong “international for responsibility placed which responsibility Judgment of the International Military Tribunal, (IMT) Trial of Major Criminals before the IMT, Nuremberg (14 This is not to say that piracy did not have an element of human rights violation, that act infact had an element of This probably explains why piracy althoughone of the oldest international crimes is not among the crimes within See Antonio Cassese,International Criminal law, (Oxford, 2008)2 ednpg 33 The idea that the state as an abstract entity should be kept separate from crimes sothat from crimes beseparate kept entity should as an abstract state the The ideathat This proclamation arose because of the gaps in the traditional perception of state of perception in traditional the gaps becauseof the arose This proclamation 88 This explains the increasing shift to the concept of individual criminal responsibility at responsibility criminal individual of concept the to shift increasing the explains This 89 17 87 As is illustrated in this and inthis is illustrated As 90 For CEU eTD Collection 98 International Criminal Justice 5 (2007), 913-915. 97 96 95 as corporations or states. or as corporations a “individual”Damgaard, word the “natural law incriminal entities denotes such andnot person” 94 Heidelberg, 2008)12 93 92 91 in [...] crime complicity of collective andrelevance thesignificance negates by splitting the term intoparts, two thatis “individual[ly]”“criminal and responsibility.” rea).” actus and crimes (mensrea of element andobjective subjective the determine question thus is, of theThe two criminality. which individual of existence level the implies would criminality collective best definition, By serve question. the deterrence goal of criminal justice. victim” one one fact, author, one of paradigm a“mononuclear builton law[...] criminal traditional that opines Manacorda, Stefano maxim in Latin the encapsulated principle general explaining collective criminality.” collective explaining criminality individualas criminal as responsibility a principle [would be]inadequatefor responsibility to international crimes in that “such categorization cannot account for macro Stefano Manacorda “The Principle of Individual Criminal Responsibility,” AConceptual Framework Journal of Javid Gadirov “ Mapping Criminal Justice” Supra page 1 Ciara Damgaard, “Individual Criminal Responsibility Corefor International Crimes”( Berlin: Springers-verlag Attonio Cassee Supra page 36 Id.,., Id., Id.,, Id., pg 13 pg 12 pg 33 With tothis notion,reference Damgaarddefines individualcriminal Clara responsibility Critics of thisnotion argue that overemphasisindividual on criminal responsibility commission of which he/she has not in some way participated, or for an omission that cannot be attributed omission to an him/her. for or participated, way some in not has he/she which of commission that beheldaccountable noonemay forhe/she acts hasnot or performed in the responsibility. for responsible the unlawful actionsof others,whichencompassed iscriminally inthe term “collective being to opposed as actions, unlawful own his for responsible a phrase commonly employed describeto the scenario where an individual is criminally 94 ” She thus defines individual criminal responsibility as:- responsibility criminal individual defines thus ” She 95 98 This position, however, still leaves open one recurring one open leaves still however, position, This 97 raises difficulties in applying individual criminal 92 18 nulla poenasine culpa : 96 One suchcritic, 91 This is the 93 To CEU eTD Collection International Criminal Justice principle. above the reiterated Jurisdiction” Criminal Foreign from officials State of “Immunity With their adoption, these principles became part of international law. international of part became principles these adoption, their With formulated. of were in Nuremberg the LawCharter the Recognized of Principles International the basis, this On crimes. international for individually responsibility assigning of importance the responsibility yetare to convincingly counter this view. 2009), also 106 99 officials. includetheICTY Thesetribunals individualhigh international for criminal core regards to with responsibility state ranking crimes governingreinforce of theprinciple statutes that andadopted Judgments andPrinciples Nuremberg the on built have which courts, or tribunals criminal international other of birth law. international under responsibility from him/her relieve not IV and III inPrinciple affirmation the was principles person’s criminal liability the person’sreflects individual culpability” The has view beenserved goalof deterrent prevailing “each the lawisbetter that criminal when 105 104 103 not relieve him from responsibility under international law, provided a moral choice was infact possible to him 102 (Last visited Oct 29,09). Tribunal adopted by United Nationsthe in1950. principles The can be found on http://deoxy.org/wc/wc-nurem.htm 101 UN Doc A/64/Add 1 (1946). 100 Trial. to Emperor German the Article 25 of The Rome Statute of the International Criminal Court, www.icc-cpi.int/menus/icc (Last visited Oct Supra Article 6 of ICTR Statute, Article 6 of ICTY Statute. For details information on ICTY see www.icty.org Id., see (Last Principle III visited Oct 2009) Id., Principle iv, states that The fact that a person acted pursuant to order of his Government or of a superior does Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the See United Nations General Assembly Resolution177 (II), paragraph (a). GA Res 95, UN GAOR, 1stSession, Vittorio Emanuele Orlando Challenging International Criminal Justice On the Aborted Decisionto Bring In addition, the recent ILC’s May 2008 preliminary report of the Rapporteur onthe of Rapporteur the ILC’s MayIn addition,report recent 2008 preliminary the This was position the framersthe of Principlesthe in of Nuremberg adopted recognizing see Gerhard Werle “Individual Criminal Responsibility inArticle 25 ICC Statute” See 5 4(2007)953-975.no. www.unictr.org (Last visited Oct 2009) 104 , ICTR, 19 105 102 and the ICC. that official capacity of an offender does 103 This ideal have inspired the 106 99 ; proponents of collective of ; proponents 101 At the heart of these Journal of 100 CEU eTD Collection compliance of domestic laws with international law. international lawswith of domestic compliance necessary the elementof the has introduced for example, law, of rule of the definition the above theoretical by with vested co-exist inheadsof immunity theirstate of unclearhow office becomes reason assumption. But, rule of law has been defined in many ways. The UN’s the governed are equally subject to the same law of land.” samelaw of the tothe areequallysubject governed the Kanyeihamba contends that, the core of assumption of the rule of law is that “both the rulers and any distinction. all without persons to law equally the law;applies rule of that 2.4 CulpabilityofHeadsStateforHumanRightsViolations prosecution.” in criminal impleaded be directly cannot therefore and law, English or international http://www.unep.org/ourplanet/imgversn/153/annan.html (Last visited Nov 2009). 112 111 Zimbabwe, 1-4November2007. Pg 17 Opportunities, presented symposiumat the onthe Rule of Law, Human Rights and Constitutionalism Harare, a on 110 proceeding criminal ofa nature indirect to effect give 109