Individual Responsibility in International Law for Serious Human Rights Violations [21] 0792314530, 9780792314530

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INDIVIDUAL RESPONSffiiLITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTS VIOLATIONS

International Studies in Human Rights VOLUME21

The titles published in this series are listed at the end of this volume.

INDIVIDUAL RESPONSIBILITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTS VIOLATIONS by

DR. L YAL S. SUNGA

MARTINUS NIJHOFF PUBLISHERS DORDRECHT/BOSTON/LONDO N

Library of Congress Cataloging-in-Publication Data Sunga, Lyal S. Individual responsibility in international law for serious human rtghts violations 1 by Lyal S. Sunga. c11. -- p. Revision of thesis --Graduate Institute of International Studies, Geneva. ISBN 0-7923-1453-0 1. Cri11es against humanity. 2. Genocide. 3. International offenses. 4. Crtmina~ 1 lability 5. Hu11an rights. I. Title. II. Series. JX5417.S86 1991 341.4"81--dc20 91-32716

ISBN 0-7923-1453-0

Published by Martinus Nijhoff Publishers, P.O. Box 163,3300 AD Dordrecht, The Netherlands. Sold and distributed in the U.S.A. and Canada by Kluwer Academic Publishers, 101 Philip Drive, Norwell, MA 02061, U.S.A. In all other countries, sold and distributed

by Kluwer Academic Publishers Group, P.O. Box 322,3300 AH Dordrecht, The Netherlands.

03-1294-150 ts

Printed on acid-free paper

All Rights Reserved

© 1992 Kluwer Academic Publishers

Kluwer Academic Publishers incorporates the publishing programmes of Martin us Nijhoff Publishers.

No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands

To my wife, Connie Ahmed

TABLE OF CONTENTS

Acknowledgements

xi

Abbreviations

xiii

Table of Treaties

xvii

Table of Cases

xix

Resolutions of the United Nations General Assembly

XXI

Chapter I. Introduction

1. Aim 2. Role of Value in Legal Enquiry 3. Dual Character of Law (Method of Enquiry) Chapter II. Individual Responsibility in Positive Laws of War

1. In General 2. War Crimes (i)

(ii)

1 1 2 8 15 15 17

Before Nuremburg

17

Early Customary Law Hague Conventions and Regulations Inter-War Period

17 22

Nuremburg Charter and Judgments

25

20

(iii) Content and Legal Status of the Norm Since Nuremburg 3. Crimes Against Peace

36

4. Crimes Against Humanity

41

30

viii

Table of Contents (i) Before Nuremburg (ii) Nuremburg Charter and Judgments (iii) Content and Legal Status of the Norm Since Nuremburg 5. Significance of the Nuremburg Trials and Expansion of 'Crimes Against Humanity' 6. The Geneva Convention System of Grave Breaches (i) Substantial Aspects (ii) Significance of the System of Grave Breaches 7. Defenses to Allegations of International Crimes (i) Superior Orders (ii) Duress (iii) Mistake (iv) Military Necessity (v) Reprisals (vi) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 1968

Chapter Ill. Individual Responsibility in International Human Rights Law 1. Genocide (i) Background (ii) Substantial and Procedural Aspects of the UN Genocide Convention (iii) Present Legal Status of International Norms on Genocide 2. Apartheid (i) Background (ii) Substantial and Procedural Aspects of the UN Apartheid Convention (iii) Present Legal Status of International Norms on Apartheid 3. Torture (i) Background (ii) Substantial and Procedural Aspects of the UN Torture Convention (iii) Present Legal Status of International Norms on Torture 4. Slavery (i) Background (ii) Individual Responsibility for Slavery in International Law (iii) Present Legal Status of International Norms against Slavery

41 44 46 48 51 51 53

54 55 58

59 60 60 63

65 65 65 67 72 74 74 75 19 80 80 83 85 87 87 90 92

Table of Contents 5. Principle of Non-discrimination (i) (ii)

Substantial and Procedural Aspects of the Racial Convention Present Legal Status of the Principle of Non-discrimination

Chapter IV. Patterns of Implementation 1. National Measures of Implementation (i) Doctrine of International Jurisdiction (ii) Universal Jurisdiction - Content and Legal Status (iii) Illustrative Cases in National Law

Eichmann Case Filartiga Case (iv) Conclusions Regarding Universal Jurisdiction and Domestic Implementation of Crimes in International Law 2. Proposals for an International Criminal Court (i) Pre-World War II Developments (ii) Present and Future Prospects Codification of International Responsibility Draft Article 19 -International Crimes and International Delicts Definition of 'International Crime' Related Concepts Question of Individual Criminal Responsibility for Serious Human Rights Violations 2. Draft Code of Offenses Against the Peace and Security of Mankind (i) Content Ratione Materiae (ii) Content Ratione Personae

Chapter V. 1. ILC (i) (ii) (iii)

Chapter VI. The Position of the Individual in International Law 1. Instances of Individual Legal Capacity in International Law 2. Doctrinal Approaches (i) Classic Doctrine: Grotius and Vattel (ii) Kelsen (iii) Soviet Doctrine (iv) Other Views (v) Some Empirical Approaches 3. Relation of Individual Subjectivity and Individual Responsibility

ix 92

95 97 99 100 100 102 108 108 111 114 116 116 118 123 124 124 129 132 133 133 137 139 141 149 149 150 151 152 153 154

X

Table of Contents

Chapter VII. Emergence of a General Rule of Individual Responsibility for Serious Human Rights Violations 1. Specific Factors Enhancing Prospects for Emergence of the General Rule (i) Content of the Emerging Norm (ii) Possible Legal Sources of the Emerging Rule 2. General Factors Enhancing Prospects for Emergence of the General Rule Annex: Draft Code of Crimes against the Peace and Security of Mankind Bibliography Index

157 158 158 163 167 169 207 223

ACKNOWLEDGEMENTS

This work was first written as a Doctorate thesis under the supervision of Professor Georges Abi-Saab and Professor Philippe Cahier, both of the Graduate It has since been Institute of International Studies in Geneva, Switzerland. substantially revised. I am most indebted to Professor Abi-Saab who, as my principal supervisor, closely scrutinized each draft. Professor Abi-Saab's high intellectual standards provide me with much personal inspiration for which I will always be grateful. I am grateful to Professor Cahier who also supervised my work and provided me with valuable suggestions and improvements in his warm and friendly manner. Professor Cahier's lectures at the Hague Academy oflnternational Law which I attended in 1985, sparked my initial interest in undertaking doctorate research at the Graduate Institute in Geneva. I wish to thank Dr. Gudmundur Alfredsson, Human Rights Officer of the United Nations Centre for Human Rights in Geneva, for his suggestions on the final draft. I hold his comments on the draft, and his human rights work at the United Nations, in high esteem. Any shortcomings in the book remain my sole responsibility. I wish to thank the Graduate Institute of International Studies for their grant which facilitated publication of this book.

xii

Acknowledgments

Finally, I wish to thank my wife, Ms. Connie Ahmed, for having spent many hours on each version of each draft and for having made valuable suggestions on the content and expression of the ideas. Her stringent critique has resulted in immeasurable improvements to the present work. dedicated.

It is to her that this work is

Lyal S. Sunga February 1991 Geneva, Switzerland.

ABBREVIATIONS

A. F. L. Rev.

Air Force Law Review (United States)

Afr. Charter Hum.

African Charter on Human and Peoples' Rights

Peoples' Rts. Am. Conv. Hum. Rts.

American Convention on Human Rights

Am. Dec. Rts. Duties

American Declaration on the Rights and Duties of

Man

Man

Am. Soc. Int'l L. Pro.

American Society International Law Proceedings

Am. J. Int'l L.

American Journal of International Law

Aust. Y.B. Int'l L.

Australian Yearbook of International Law

B.U. Int'l J. L. Belgian Rev. Int'l L.

Boston University International Law Journal Belgian Review of International Law

Brit. Y .B. Int'l L.

Britsh Yearbook of International Law

Calif. L. Rev.

California Law Review

Calif. W. L. Rev.

California Western Law Review

Calif. W. Int'l L. J.

California Western International Law Journal

Can. Y.B. Int'l L.

Canadian Yearbook of International Law

Case W. Res. J. Int'l L.

Case Western Reserve Journal of International Law

Comp. Jurid. Rev.

Comparative Juridical Review

Conv.

Convention

Cornell Int'l L. J.

Cornell International Law Journal

ECOSOC

United Nations Economic and Social Council

Eur. Conv. Hum. Rts.

European Convention on Human Rights

xiv

Abbreviations

Eur. Y.B.

European Yearbook

Ga. J. Int'l & Comp. L. Ger. Y.B. Int'l L.

Georgia Journal of International and Comparative Law German Yearbook of International Law

Hague Recueil

Recueil des Cours de I' Academie de droit international

Harv. Int'l L. J. Harv. L. Rev.

Harvard International Law Journal Harvard Law Review

Hastings Int'l & Comp.

Hastings International and Comparative Law Review

L. Rev. Hum. Rts. L. J. Hum. Rts. L. Q.

ICJ

Human Rights Law Journal Human Rights Law Quarterly International Court of Justice

I.C.J. Rep.

Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice

ILC ILO

International Law Commission International Labour Organisation

Int'l Cov. Civ.

International Covenant on Civil and Political Rights

Pol. Rts. Int'l Cov. Econ. Soc. & Cult. Rts.

Int'l L. Q.

International Covenant on Economic, Social and Cultural Rights

Israel L. Rev.

International Law Quarterly International and Comparative Law Quarterly International Review of Contemporary Law International Review of the Red Cross Israel Law Review

Israel Y.B. Hum. Rts. J. of Soc. Phil. & Juris. Jewish Y.B. lnt'l L.

Israel Yearbook on Human Rights Journal of Social Philosophy and Jurisprudence Jewish Yearbook of International Law

Mil. L. Rev.

Military Law Review

Neth. Int'l L. Rev. Nordisk Tidsskrift for

Netherlands International Law Review Nordisk Tidsskrift for International Ret

Int'l & Comp. L. Q. Int'l Rev. Contemp. L. Int'l Rev. Red Cross

lnt'l Ret N.Y.U. J. Int'l L. & Pol. New York University Journal of International Law and Politics PCU Permanent Court of International Justice Rev. Droit Penal Mil. Revue de Droit Penal Militaire et Droit de Ia Guerre Droit de Ia Guerre

Abbreviations Rev. de Droit Int'l de

Revue de Droit International de Sciences

Sciences Diplom. Pol. Diplomatiques et Politiques Rev. Gen. de Droit Int.

Revue Generate de droit international public

Pub. Rev. Int'l Comm'n Jurists Review of the International Commission of Jurists Swiss Rev. World Aff.

Swiss Review of World Affairs

Tex. Int'l L. J.

Texas International Law Journal

Tul. L. Rev.

Tulane Law Review

UN

United Nations

UNGA

United Nations General Assembly

Univ. Dec. Hum. Rts.

Universal Declaration of Human Rights

UNWCC

United Nations War Crimes Commission

Va. J. Int'l L.

Virginia Journal of International Law

Vand. J. Transnat'l L.

Vanderbilt Journal of Transnational Law

Y.B. Int'l L. Comm'n

Yearbook of the International Law Commission

XV

TABLE OF TREATIES

1822 1841 1862 1864 1868 1899 1907 1919 1923 1925 1926 1928 1929 1930 1937 1937

Declaration of Verona 87 Treaty of London 87 Treaty of Washington 87 Convention for the Amelioration of the Condition of the Wounded in 16 Armies in the Field St. Petersburg Declaration 16 Hague Convention concerning the Laws and Customs of War on Land 16, 20, 38, 41, 51 Hague Convention on the Laws and Customs of War on Land 16, 20, 21, 26, 37, 38, 41, 51 22, 23, 38, 47, 117 Treaty of Versailles Treaty of Sevres 23 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, 16 Poisonous or Other Gases and of Bacteriological Methods of Warfare International Slavery Convention 87, 88, 90 International Treaty for the Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact) 24, 37-38 Geneva Convention for the Relief of the Wounded and Sick in Armies 16 in the Field Forced Labour Convention (No.29) (ILO) 89 Convention for the Prevention and Punishment of Terrorism 117 Convention for the Creation of an International Criminal Court 117

xviii

Table of Treaties

1942 Punishment for War Crimes -the Inter-Allied Declaration (Declaration of St. James) 25 1948 Convention on the Prevention and Punishment of the Crime of Genocide 1949 1950 1956 1957 1957 1965

64, 65, 67-71, 72-73, 77, 78, 121, 159 Geneva Conventions 16, 51-53, 62, 64, 72, 77, 114, 157, 159, 161 European Convention on Human Rights 16, 81, 82, 146 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 88, 90 Abolition of Forced Labour Convention (No.105) (ILO) 89 Treaty establishing the European Economic Community (Rome) 147 International Convention on the Elimination of All Forms of Racial Discrimination 146

1966 International Covenant on Civil and Political Rights 16, 80-81, 88, 176 1966 International Covenant on Economic, Social and Cultural Rights 16 1966 Optional Protocol to the International Covenant on Civil and Political Rights 145 1969 American Convention on Human Rights 16, 81, 88, 147 1969 International Convention on the Elimination of All Forms of Racial Discrimination 95-96, 146 1969 Vienna Convention 132, 133 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 102, 148 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid 75-79, 120, 121, 160, 161 1973 Montreal Convention for the Suppression for the Unlawful Acts against the Safety of Civil Aviation 102 1977 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons 102 1977 Protocols Additional to the Geneva Conventions of 12 August 1949 16, 53-54, 61 1979 International Convention against the Taking of Hostages 1981 African Charter of Human and Peoples' Rights 16, 81, 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 83-86, 120-122, 146, 160, 164, 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

148 148 165 82

TABLE OF CASES

Adra v. Clift Barcelona Traction Case (Second Phase)

112 73, 86, 92, 97, 130-132

Belgian Linguistic Case

95

Bolchos v. Darrell Breisach Trial of 1474

112 18

Brown v. Board of Education

74

82 81 Denmark, Norway, Sweden and Netherlands v. Greece (Eur. Conv.) Denmark, Norway, Sweden, Netherlands, and France v. Turkey (Eur. Conv.) 82 100, 108-111 Eichmann Case 58 Eisensatzgruppen 100, 111-113 Filartiga v. Pena Irala 29 Flick and Others, re 37 German High Command Trial 81 Greece v. UK (Eur. Conv.) 37 I. G. F arben Trial 81 Ireland v. UK (Eur. Conv.) Cyprus v. Turkey (Eur. Conv.)

Jurisdiction of the Courts of Danzig Krauch and Twenty-Two Others Krupp and Ten Others, re Lawless Case (Eur. Ct. of Hum. Rts.) Llandovery Castle Case

143 29 29,58

147 31

XX

Table of Cases

Lotus Case Naulilaa Case Ohlendorf and Others Plessy v. Ferguson

105 60 29 74

Quirin, Ex parte 37, 38 Reparations for Injuries Suffered in the Service of the United Nations Case 140 Reservations to the Convention on Genocide Case (Adv. Op.) 72-73 Sepp Dietz 45 Steiner and Gross v. Polish State Tel-Oren v. Libyan Arab Republic U.S. v. Aluminum Co. of America U.S. v. Watchmakers of Switzerland

142 112-113 101 101

Vagrancy Cases

147

Yamashita Case

57

RESOLUTIONS OF THE UNITED NATIONS GENERAL ASSEMBLY

1946 UNGA Res. 3/1 to foster national implementation of the principles 49 contained in the Nuremburg Charter 39, 49, 64 1946 UNGA Res. 95(1) on the Nuremburg Principles Judgment Nuremburg the in Principles 1946 UNGA Res. 96(1) Affirming 73 and Charter relating to Genocide 1947 UNGA Res. 177 (II) Draft Code of Offences against the Peace and Security of Mankind 1948 UNGA Res. 174 (A/180) reaffirming that the draft code of offenses against the peace and security of mankind should cover war crimes,

134

134 crimes against peace and crimes against humanity 15, 80 1948 UNGA Res. 217(A) (III) Universal Declaration of Human Rights the on 1957 UNGA Res. 1186 (XII) (concerning deferral of further work 134 Draft Code of Offenses) 1965 UNGA Res. 2131, Declaration on the Inadmissibility of the Intervention in the Domestic Affairs of States and the Protection of their 40 Independence and Sovereignty 1970 UNGA Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States 40,61 in Accordance with the Charter of the United Nations 118 62, 40, 1974 UNGA Res. 3314 (XXIX) on the Definition of Aggression 1981 UNGA Res. 36/106 (to resume work on the Draft Code of Offenses against the Peace and Security of Mankind)

134

xxii

Resolutions of the United Nations General Assembly

1986 UNGA Res. 411120 entitled 'Setting International Standards in the Field of Human Rights' 162, 163 1989 UNGA Res. 44/39 relating to establishment of an international criminal court to try persons suspected of illicit drug trafficking across national frontiers

120

CHAPTER I INTRODUCTION

1. AIM

The aim of the present enquiry is to identify international legal norms which impose responsibility upon the individual in a personal capacity for the commission of human rights violations. It is argued that a new rule of international law imposing individual responsibility for serious human rights violations in general is in the process of emerging. Most human rights instruments in international law are designed to restrain the State rather than the individual human being from violating human rights. This should not be surprising since the State is usually the institution vested with principal legal authority and power to regulate life, liberty and property in society. Also, the State is the primary subject of international law. Accordingly, many human rights, especially civil and political rights, whether guaranteed nationally or internationally, are directed against the power of the State and formulated in the negative. They oblige the State rather with the rights and freedoms International legal rules effective where the State is

than other entities, not to interfere unduly of individuals. designed to restrain the State are more responsive to political pressure or embar-

2

Chapter I

rassment. A Government sometimes acts swiftly to suppress violations of human rights in its jurisdiction, perhaps to avoid further adverse international attention. Violations of human rights are sometimes curtailed in this way. Where the State is oblivious to international pressure and fails to undertake or honour human rights obligations, individuals who actually carry out human rights violations are not likely to be punished. An effective way to deter human rights violations in these types of cases may be to expose the individual responsible for committing the violation to risk of international legal sanction in a personal capacity. Almost all existing rules of international responsibility bind States only; the individual is bound only in exceptional circumstances. A general rule of individual responsibility in international law for serious human rights violations might be an effective means by which to supplement existing rules of international responsibility.

2. ROLE OF VALUE IN LEGAL ENQUIRY To identify international legal norms relevant to this enquiry, it is necessary to explore legal meanings of such value-laden terms as 'responsibility', 'criminal', and 'human rights'. As law shares many value-laden terms used in other normative fields such as ethics and religion, there is a tendency to muddle legal meanings with multiple meanings used in other fields. 1

1

One source of this confusion is the assumption, often made, that words stand for concepts or things. However, as the meanings of words change according to context, it is more fruitful to refer to actual usage to discover the meaning of a word rather than to search for absolute or fixed meanings, as Wittgenstein has cogently argued. See Wittgenstein, Tractatus logico-philosophicus (D.F. Pears & B.F. McGuiness trans. 1961). See also Philosophical Investigations (G.M. Anscombe trans. 1953).

Introduction

3

The function of legal rules, being normative in character, is to prescribe rather than to describe. The distinctly normative character of legal rules and the muddling of legal and non-legal meanings renders legal enquiry vulnerable to confusion between what one thinks is positive law, and what one thinks the law ought to be. The derivation of descriptive statements from prescriptive statements and vice-versa, is not only a logical fallacy as Hume pointed out, 2 but an entrance through which unwarranted subjective value judgments may poison an otherwise clear analysis. 3 Because the present enquiry strives at an undogmatic and objective appreciation of relevant norms, it is imperative to discuss the role of value in legal enquiry itself before any substantive issues are considered. More precisely, if legal norms are 'ought' statements, rather than statements of fact, is it possible for an enquiry into legal norms to make any valid claim to objectivity, and if so, by what means? It is convenient to begin discussion of the role of value in legal enquiry with Kelsen who followed Hume and Kant. 4 Hume argued that since norms of any sort are purely subjective whereas all knowledge is grounded on experience of factual sense-data, norms including legal norms, may only be logically derived from other norms, and facts only from facts. Kant argued that moral principles cannot be understood except as a set of 'categorical', as opposed to 'hypothetical' imperatives; their essential character lies not in the effects they produce, but in their

2

3

4

The derivation of moral norms from factual propositions has been branded as the 'naturalistic fallacy' by G.E. Moore. See Hume, A Treatise of Human Nature (1777). Kant followed Hume's reasoning on the unbridgeable gap between an 'is' and an 'ought', but argued that knowledge could not be possible unless there exist certain a priori concepts, available to the human mind but independent of experience, such as space, time and causality, which allow us to make order out of the chaos of sense perceptions. See Kant, Critique of Pure Reason, 1,2 (F. Max Muller trans. 1966).

4

Chapter I

form. 5 Kelsen's pure theory of law is a general theory of positive law which aims at cognition of 'what the law is, not what it ought to be. ' 6 Kelsen applies Hume's strict 'is/ought' distinction stringently to modern legal concepts. Like Hume, Kelsen insists that norms can only be inferred from other norms, but following Kant, sees norms as purely formal categories. Kelsen sought to purge all subjective value-laden concepts from modern legal thinking on the belief that these impede an objective and realistic appreciation of law. According to Kelsen the proper role of legal enquiry is scientific; to ascertain objectively the validity of legal norms in relation to higher norms, effectiveness being a condition of legal validity as well. Kelsen's view is that ascertainment of legal validity depends on the application of 'juristic value judgments' to legal norms, but that these sorts of value judgments are unrelated to moral or ethical kinds of value judgments. Notions of what is just and unjust are subjective and often irreconcilable. Values of justice depend on the subject holding the opinion, hence there exist many different and conflicting standards of justice. 7 Juristic value

5

6

7

As such, moral principles are synthetic a priori propositions understandable by reason and capable of being absolute and objective. Kant's Formula of Universal Law requires that one: 'Act only on that maxim through which you can at the same time will that it should become a universal law'. Kant's test of morality adopts a purely formal criterion for the evaluation of individual conduct. See Kant, Groundwork of the Metaphysic of Morals, ch. II (trans. H.J. Paton 1956). Kelsen, The Pure 1heoryofLawandAnalyticalJurisprudence, 55Harv. L. Rev. 1941 at 44. In Kelsen's terms, the distinction is between causality (explanations of cause and effect in nature), and imputation (what should be). "In this sense, the interest theory may indeed be applied to the values of justice. These values do not, it is true, consist in a relation to an interest but in a relation to a norm. This norm, however, contrary to the opinion entertained by the judging person, is not objective, but dependent upon a subjective interest of this person. Hence, there is no unique standard of justice; what we actually do find are many different and often conflicting ideals." in Kelsen, Value Judgments in the Science ofLaw, 7 J. Soc. Phil. & Juris. (No.4 July, 1942) at 331.

Introduction

5

judgments on the other hand, are objectively verifiable because there exists only one positive law the contents of which "... can be unambiguously ascertained by an objective method ... In this sense, the value of law is objective, while the value of justice is subjective." Kelsen's radical application of the 'is/ought' distinction to law led him to assert that value as related to human interests has no role in legal enquiry (unless that enquiry is devoted to a purely sociological study of law): 8 Juristic value judgments are judgments that can be tested objectively by the help of facts. Therefore they are admissible within a science of law. Judgments of justice can not be tested objectively. Therefore a science of law has no room for them. Moral and political judgments are of the same nature as judgments of justice ... 9 Kelsen's answer then, is that objective legal enquiry is possible if it examines legal norms purely in terms of the conditions of formal legal validity, without regard to the content. Kelsen's pure theory of law has the considerable merit of purging legal study of the type of fallacious reasoning that confuses the legal validity of positive law with all sorts of moral and ethical judgments. The theory accentuates important dissimilarities between international law and morality, emphasizing the juristic character of international law, a body of law containing obligations whose breach in fact gives rise to responsibility, claims for reparation and settlement. 10

8

9

°

1

Kelsen saw sociological jurisprudence as the study of actual behaviour which stands side by side with the pure theory of law ie. normative jurisprudence. See Kelsen, The Pure Theory ofLaw and Analytical Jurisprudence, 55 Harv. L. Rev. at 52 (1941). Id. at 332. Kelsen's theory also employs the positivist requirement that knowledge be grounded on empirically observable phenomena, rather than on conjecture, metaphysics, or ideology. The emphasis on formal validity rather than on content is antithetical to natural law theory which maintains that positive law must conform to the natural law of God or human nature to be truly 'law'.

6

Chapter I

If the present enquiry were to involve only an examination of the formal relation among well-established legal norms, Kelsen's model might serve adequately as a conceptual tool of elucidation. However, Kelsen's clear-cut and uncompromising answer to the question of value in legal enquiry results in simplification at the expense of distortion, especially where the legal norms under study are in a state of flux. Kelsen's characterization of pure legal theory as scientific is meant to convey that legal study can be conducted without the intrusion of subjective values. However, it is not clear that the method of natural science can be applied very well to social science or law because the subject matters of natural science and social science differ in crucial respects. In the study of social phenomena an understanding of rule governed behaviour involving intention, consciousness, will and purpose of human beings is a conditio sine qua non for the explanation of social events. It is doubtful that rule governed behaviour can be well understood, if at all, unless some reference is made to the values extant in the normative system under study. Even if the method of legal enquiry could be scientific in the same way as the method of natural science, Kelsen's argument misunderstands the role of value in scientific enquiry, and human interests in knowledge generally. Thomas Kuhn has persuasively argued 11 that science is not simply a value-neutral accretion of facts, but an interpretation of data in the light of the prevailing theoretical matrix, or paradigm. 12 Even in natural science, appreciation of relevant facts is conditioned by concepts in the scientific community that are theoretical, hypothetical and tentative,

11

12

Kelsen scrutinizes even standard notions such as 'rights', 'duties', and 'the State' which are either rejected as metaphysical confusion or tolerated as convenient legal fictions. See Kuhn, The Structure of Scientific Revolutions (2d ed. Chicago 1970). Kuhn is not consistent in his many uses of the word 'paradigm'. See Margaret Masterman, The Nature of a Paradigm, in Criticism and the Growth of Knowledge (Lakatos & Musgrave ed. 1970).

Introduction

7

therefore science is unavoidably subjective to that extent. At an epistemological/ontological level, Habermas' forceful critique of positivism calls into question the assertion that absolute value-freedom can be achieved in either the empirical-analytical sciences or historicalhermeneutic sciences. 13 In attempting to purge subjective value from legal thought, Kelsen has succeeded only in mystifying the real role of value in the development of legal norms and in enquiry about legal norms. Kelsen's model of law suffers from serious defects which, if adopted for the present enquiry, would produce an overly narrow image of individual responsibility for human rights violations in international law. The pure theory of law fails to situate law in its social context. The strict differentiation between law and politics obscures how legal norms develop in relation to non-legal norms. In other words, Kelsen's pure theory, like that of Kant or the idealism of Plato, fails to relate values and norms to the changing material conditions of the times. This is no moot point; norms may only be fully comprehended by reference to the context in which they are situate. The function, form and content of existing international rules on individual responsibility are related to basic structures and principles fundamental to the international legal system, such as subjectivity in international law, international responsibility, modern trends in international human rights law and increasing multilateral cooperation. Because international norms on individual responsibility are situated within the context of an evolving system, these norms, and prospects for the emergence of a general norm, must be evaluated from the perspective of general international law as a

13

See Habermas, Knowledge and Human Interests, 1971. Habermas argues that objectivity in the creation of knowledge cannot be achieved as long as the scientific community remains unreflective of the true value orientation of science. Critical sciences aim to recognize explicitly the true connection between knowledge and human interests in order to counter the scientistic consciousness that maintains the illusion of value-freedom in knowledge.

8

Chapter I

social institution changing over time, a perspective Kelsen's model precludes.

3. DUAL CHARACTER OF LAW (METHOD OF ENQUIRY) The present enquiry is based on an empirical investigation into relevant positive law. However, facts inevitably are viewed through the prism of rational constructions about the world. Criteria for the existence and selection of relevant facts depend on theoretical knowledge which is invented and revised in a dialectical fashion on the basis of empirical observation. Accordingly, the method of the present enquiry is both inductive and deductive. While inductive and deductive reasoning are the same in legal study as in natural science, full comprehension of legal norms is complicated by the dual character of law. In natural science, inductive reasoning is used to invent an hypothesis of greater or lesser probability to account for certain observable phenomena. There are . . . no generally applicable 'rules of induction', by which hypotheses or theories can be mechanically derived or inferred from empirical data. The transition from data to theory requires creative imagination. Scientific hypotheses and theories are not derived from observed facts, but invented in order to account for them. They constitute guesses at the connections that might obtain between the phenomena under study, at uniformities and patterns that might underlie their occurrence. 14 Inductive reasoning does not yield conclusions of absolute certainty; instances may arise which negate the hypothesis.

14

Hempel, Philosophy of Natural Science at 15 (1966).

Introduction

9

Observed occurrences in natural science are independent of norms and lack will or purpose. 15 However, in the study of law as in the study of society, observed phenomena are often conscious, willed, purposeful acts. This difference is crucial. A movement of the hand may be a signal for help, an insult, or perhaps an involuntary spasm. The greater part of human action, unlike the movement of atoms, cannot be properly understood except by reference to norms which lend meaning to acts. The study of social phenomena therefore requires an understanding or verstehen on the part of the social scientist to interpret meanings of human action. "But the crucial difference between the physical and the social scientist is that only the latter studies a subject-matter of which a language is an essential element, and which cannot be understood unless that language is understood. "16 In addition to observation of individual instances supporting an inference that there exists a general practice, there must be interpretation of the subjective will of the actors and a connection drawn between the acts and the norm in question. While law is distinctly normative in character, it also has an existential aspect; a norm may be said to exist or not. The existence of a norm is manifested by observable evidence such as a book of rules, specific acts, or general behaviour indicating an intention to comply with the norm. In this sense, law has a dual character; it is at once normative in content, function, effect, and factual, existing as observable phenomena capable

of being created, changed or terminated. The factual aspect of law relates to the existence, form and status of legal norms. To ascertain the existence of a particular legal norm in any given legal system, it is necessary to examine the norm in terms of

15

16

Ascribing purpose to causality in nature is the 'teleological fallacy'; a form of empty explanation used by Aristotle and Aquinas to explain change in nature through the goal or consequence of what will happen. Lessnoff, The Structure of Social Science 43 (1974).

10

Chapter I

criteria provided by sources of law Y This entails an enquiry into whether or not there exist the necessary and sufficient formal elements required for a norm to be recognized as having the status of law. Criteria of truth and falsity apply to the factual aspects of a legal norm which involve its existence and status whereas its purely normative content simply carries a particular meaning or not. 18 It follows from the dual character of law that legal norms are neither mere generalizations derived from adduction of observed instances, nor rules merely inferred logically from more general legal rules. Rules relating to specific instances of individual responsibility may remain as rules of a specific and limited nature; they are not ipso facto parts of a general rule of international law. There must also be sufficient recognition of the general rule on its own (which may be indicated by any of the formal criteria concerning sources of international law). It would therefore be logically fallacious to argue that a general norm of international law imposing individual responsibility for human rights violations is emerging, solely on the basis that there exist in positive law many instances of specific norms of individual responsibility for human

17

18

Every legal system contains a finite set of the sources of law. The sources of law in the international legal system are enumerated in Art. 38 of the Statute of the International Court of Justice. There is the content of law which is normative; it commands, permits, or authorizes a certain behaviour. See Kelsen, The Pure Theory of Law 1967. Rules for the interpretation of norms, such as rules of statutory interpretation, are also normative. To understand the meaning or imperative element of a legal norm, one may study the meaning of the terms by which it is expressed, overall objects or purposes, as well as the intention of the drafters (if there were any). At a more general level one may apply criteria of consistency with normative standards such as equity, justice or other norms to judge whether law is good or bad. Arguably, this type of evaluation is not strictly part of law, but rather of ethics, morals, politics, philosophy, jurisprudence etc. However it is to be classified, it ought not to be confused with the descriptive or factual element of law.

Introduction

11

rights violations. 19 Because the present international system is highly decentralized there being no single Leviathan capable of unilaterally bringing law into being, a norm of international law cannot emerge without widespread consensus. Legal norms depend upon recognition for their existence. International law is based on the collective will of the international community which includes all international legal persons, rather than on the consent of each State individually. 20 Logically, the recognition of legal rules could not be an ad hoc matter, allowing every legal person the freedom to be bound or not according to whim, for this would contradict the meaning of being bound by a rule. On the contrary, recognition of international legal rules is construed from manifestations of explicit or implicit general recognition. A general rule of individual responsibility for serious human rights violations could emerge in international law if the requirements of legal validity, such as those relating to treaty or customary sources of law, were fulfilled. Prospects for the emergence of a general rule are discussed in Chapter VII. Precise determination of the exact point at which positive law has emerged is a matter of estimation and approximation. A consequence of the decentralized character of the international system is that the emergence of legal norms is less definite in international law than of those in municipal legal systems. Professor Georges Abi-Saab has emphasized the probabilistic nature of analysis de lege ferenda thus:

19

20

Law is not about wishful thinking, but about prescriptive norms accepted or recognized as having a legal status. If it were otherwise, the legal theorist could unilaterally perfect the legal system simply by describing the rules of international law in any convenient fashion, and by extension, perfect all normative behaviour too. The binding nature of norms of international law, while based on consent, cannot be nullified or vetoed by a single State, nor can States 'opt out' of the general corpus of international law.

12

Chapter I In reality, law does not come out of social nothingness, nor does it come into being with a 'big bang'. In most cases, it is a progressive and imperceptible growth over a large grey zone separating the emerging social value from the well-established legal rule; a zone which is very difficult (and sometimes even impossible) to divide a posteriori between the two. In other words, the boundaries of positive law (or between 'law' and 'pre-law') cannot always be clearly defined. 21

The probability of the emergence of a general rule of individual responsibility for serious human rights violations can be inferred inductively from specific norms on individual responsibility in positive international law and inferred deductively from the structure and general principles of international law. 22 In legal study as in the study of nature or society, factual propositions are always more or less controvertible, tentative and hypothetical. In natural science, the objective truth of a given hypothesis may be tested by recourse to empirical phenomena. 23 Critical scrutiny by the scientific community tests the objectivity of scientific hypotheses. For propositions inferring the existence of a particular legal norm, the test of objectivity is complicated by the dual character of law. The plausibility of a legal hypothesis is supported or weakened by empirical evidence, but recourse must also be made to legal recognition (which includes the subjective element). Criteria for objective legal enquiry hinge upon examination of the nature and degree of legal recognition

21

22

23

Abi-Saab, 1he Legal Formulation of a Right to Development (Subjects and Content) in The Right to Development at the International Level162 (Dupuy eel. 1980). See generally Schwarzenberger, The Inductive Approach to International Law 1965. Testability of the hypothesis, predictability of results, simplicity, internal consistency of the hypothesis, and consistency with other existing theory, are some criteria of confirmation and acceptability of an hypothesis in natural science. See Hempel, Philosophy of Natural Science ch.4 (1966).

Introduction

13

consisting of general practice or behaviour, coupled with attributable meaning, will and intention. The availability of widely accepted criteria for legal objectivity proves that the normative aspect of law does not in and of itself negate the prospect of legal objectivity. Hence the legal theorist is not damned to epistemological relativism. The emergence of particular rules of international law on individual responsibility and the trends and patterns of international law as a whole may presage future widespread recognition or acceptance of a general rule of individual responsibility for serious human rights violations. The principal issue is whether there exists in international law a sufficient basis to infer the emergence of a general rule of individual responsibility for serious human right violations. The key questions to be answered in this regard are: 1) what are the sources of law of the emerging rule? 2) does the available positive law support or weaken the hypothesis that a general rule is emerging? 3) does the evolution of general international law as a whole increase or diminish the likelihood that such a rule is emerging? 4) what is the content of the emerging rule? These questions require distinct methodological approaches. Positive legal rules on individual responsibility are examined and then situated in the context of general international law. However, contrary to the popular adage, the facts do not speak for themselves; a given set of facts is open to an indefinite number of interpretations about what the facts exactly signify. It is therefore most logical to assess the facts of positive law by examining them first within the narrow confines of their source of legal validity. Efforts of the International Law Commission to codify and progressively develop rules of international responsibility are then examined as a systematic attempt to enhance the coherence of international legal norms on individual responsibility. This is followed by a discussion of the position of the individual in international law and the

14

Chapter I

evolving domain of international legal subjectivity. The indices of the emergence of a general rule are then synthesized and evaluated in the light of the changing structure of international law as a set of norms which express interests and values common to the international community.

CHAPTER II INDIVIDUAL RESPONSffiiLITY IN POSITIVE LAWS OF WAR

1. IN GENERAL The laws of war and international human rights law evolved as distinct bodies of law although they intersect and overlap at certain points. 1 The laws of war originate in very early customary law. International human rights law is of more recent origin dating from 1945. International human rights law confers rights and obligations upon States and human beings. These rights and freedoms derive from such international instruments as the UN Charter and Universal Declaration of

1

Some commentators, such as Draper in The Relationship Between the Human Rights Regime and the Law of Armed Conflicts, Israel Y.B. Hum. Rts. 91-207 (1971), have argued that international human rights law and the law of armed conflict 'are fusing together at some speed'. However, total amalgamation is unlikely to occur since there is a fundamental structural asymmetry between the two bodies of law. In the laws of war, which is classic inter-State law, the individual has no locus standi whatsoever. In human rights law, on the other hand, the central legal relationship is between the State and its own citizens. See also MacBride, Human Rights in Armed Conflicts: the Inter-Relationship between the Humanitarian Laws and the Law ofHuman Rights, 9 Rev. Droit Penal Mil. Droit de Ia Guerre 373-394 (1970). See also Newman et. al., General Discussion, 13 Ga. J. lnt'l & Comp. L. 315-320 (1983).

16

Chapter II

Human Rights, the UN International Covenants, European Convention on Human Rights, American Convention on Human Rights, African Charter on Human and Peoples' Rights, as well as numerous ILO conventions which promote and protect certain human rights. Most but not all human rights apply generally in peace-time but may be suspended or derogated from, in time of public emergency, such as war. 2 Two main streams of law are discernable within the laws of war: the jus ad bellum; the right of States to start a war and the jus in bello, which aims at establishing a balance between requirements of military necessity and humanitarian considerations in the conduct of war, once war has started, and is addressed primarily to States, lawful combatants and civilians. Jus in bello consists of what has been termed 'Hague law' and 'Geneva law'. 3 Recently, there is a trend to substitute the term 'humanitarian law' for 'Geneva law' and increasingly for the term 'Hague law' as well. War crimes, crimes against peace, crimes against humanity, and

2

3

See Higgins, Derogations Under Human Rights Treaties, 48 Brit. Y.B. Int'l L. 281-320 (1976-77) and Hartman, Derogations from Human Rights Treaties in Public Emergencies, 22 Harv. Int'l L. J. 1-53 (win. 1981). 'Hague law' derives from customary international law, the St. Petersburg Declaration of 1868, the 1899 and 1907 Hague Conventions and Regulations, Geneva Protocol of 1925 banning the use of specific chemical and biological weapons, and certain other conventions which forbid the use of particular weapons and restrict the use of force to military, as opposed to civilian, targets. The aim of Hague law is to codify laws of war in general. The term 'Geneva law' usually refers to the Geneva Conventions of 1864, 1929 and of 1949, and to the 1977 Protocols Additional to the 1949 Geneva Conventions. Humanitarian law derives primarily from the four Geneva Conventions of 1949 and the 1977 Additional Protocols. The Geneva Conventions and Protocols set rules for the treatment of the wounded and sick, shipwrecked, prisoners of war, and civilians, in situations of armed conflict. The 1977 Protocols attempt to effect a convergence of Hague law and Geneva law. See Nahlik, A Brief Outline of International Humanitarian Law, Int'l Rev. Red Cross 13-15 (July-Aug.1984), and Pictet, International Humanitarian Law: Definition, in International Dimensions of Humanitarian Law xix-xxii (UNESCO ed. 1988).

Individual Responsibility in Positive Laws of War

17

'grave breaches' fall broadly into the category of war -time human rights violations and are prohibited by the laws of war and humanitarian law, while genocide, apanheid, racial discrimination, slavery and torture committed in peace-time are prohibited by norms of international human rights law.

2. WAR CRIMES (i) BEFORE NUREMBURG

Early Customary Law Regulation of armed conflicts including rules for sparing sick, wounded and elderly, date from around 500 B.C. with the ancient Chinese treatise by Sun Tzu entitled The An of War. Indian customs relating to the practice of war on land date back to 200 B.C. with the Code ofManu. Rules on the treatment of prisoners and the wounded are also found in ancient Greek and Roman law, and in Islamic Sharia law. Numerous councils of the Catholic Church relate to the conduct of war, such as the First Lateran Council of 1122, and the Second Council of 1139 (forbidding the use of the crossbow in wars between Christians). 4 Classic natural law theory supposed a close connection of the individual with international rights and obligations. The Spanish

4

See Adachi, The Asian Concept, in International Dimensions of Humanitarian

Law 13-19 (UNESCO ed. 1988) and Sultan, The Islamic Concept, /d., 29-39 and Partsch, The Western Concept, /d., 59-92. See also, Ruda, The Latin American Concept of Humanitarian Law, /d., 41-58, and Ndam Njoya, The African Concept, /d., 5-12, and Herczegh, The Concept ofthe Socialist States, Id., 21-38 and Bassiouni, Regulation of Armed Conflicts, in 1 International Criminal Law 201 (Bassiouni ed. 1986).

18

Chapter II

theologians 5 and Grotius expounded the universal legal rights of all individuals in the context of natural law. Grotius' seminal treatises on the laws of war and peace published in 1625, 6 emphasize a doctrinal distinction between just and unjust cause for the use of force as a method of vindicating moral rights. Grotius envisaged a secular and hierarchical system of natural law with the laws of nature at the apex, binding every individual through his conscience. Should a violation of natural law occur, vindication of the right is enforceable through the use of force. The extent of legal recourse to war is constrained by justness of the cause. 7 In Grotius' system, the single individual is at least as significant as associations of individuals, including the State. 8 Prior to World War I instances of war crimes trials were scarce, although a few cases are notable. In the Laws of War, 9 Keen refers to several military trials, including the 1419 trial and conviction of the Seigneur de Barbasan for breach of the medieval laws of war. Of particular interest is the trial of Peter von Hagenbach which according to one commentator, presages contemporary international war crimes trials. 10 Hagenbach, a knight, was charged with responsibility for the commission by those under his command of murder, rape, perjury and other serious crimes in his attempt to subjugate the citizens of Breisach in the Upper Rhine, following the instructions of his master, Duke Charles of Burgundy. Before the ad hoc international tribunal composed

5 6 7

8

9 10

See Scott, The Spanish Conception of International Law and of Sanctions (1934), and The Spanish Origin of International Law (1928), (on de Vitoria and Suarez). Grotius, De Jure Belli ac Pacis Bk.II, ch.II (1625). See generally Remec, The Position of the Individual in International Law according to Grotius and Vattel (1960). Id., 225-227. Keen, The Laws of War in the Late Middle Ages 1965. See Schwarzenberger, 2 International Law as Applied by International Courts and Tribunals: The Law of Armed Conflict 462 (1968), for an examination of the Breisach Trial of 1474.

Individual Responsibility in Positive Laws of War

19

oftwenty-eightjudges, Hagenbach's counsel pleaded that Hagenbach had been following orders from his superior, Duke Charles, and that he therefore had no right to question or disobey those orders. This defence of superior orders was rejected. Hagenbach was found guilty, stripped of his knighthood and condemned to death. Regulations on the lawful use of force during armed conflict are also found in diverse military codes dating from the Middle Ages. Closer to modern times, several cases relating to pillage and destruction of enemy property were decided by arbitral tribunals after civil wars in Latin America and the United States Civil WarY The United States Lieber Code of 1863 contains some provisions on war crimesY The legal foundation of war crimes jurisdiction in international customary law is the right of belligerents to enforce the laws of war. On this basis, it follows that under international customary law, war crimes jurisdiction is optional. Belligerents are at liberty to impose any punishment considered appropriate for the violation of such laws, even the death penalty, on enemy military personnel in their custody. As Schwarzenberger concludes: If the person accused of war crimes is in the territory of the former

enemy State, the re-establishment of a state of peace makes it possible for the State alleging the commission of war crimes once more to have recourse to the primary rules on international responsibility and demand prosecution of the alleged war criminal under the other party's own laws. If, however, the individual in question takes the risk of entering the territory of the former enemy State, he must expect to be subject to the full exercise of its territorial jurisdiction. 13

11

12

13

See Id., at 443-447 summarizing this jurisprudence. Inserted in 'Instruction for the Government of the United States in the Field by Order of the Secretary of War, 24 April1863, Washington D.C. See Schwarzenberger 2 International Law as Applied by International Courts and Tribunals 455 (1968).

Chapter II

20

States had few other alternatives by which to obtain redress for the commission of war crimes by individuals acting on behalf of an enemy belligerent. The injured State could either resort to reprisals or attempt to obtain reparation if and when victory was achieved over the enemy State. The State could only be held responsible under international law if the act committed by the individual offence could be imputed to the State. In other words, no responsibility of the State and hence no reparation, would be possible unless the State was responsible for the act committed by the agent. Accordingly, the general thrust of State responsibility in classic international law is the establishment of imputability of the State for certain wrongs committed by its agents or organs.

Hague Conventions and Regulations It is stated in Hague Convention No. II of 1899 and Hague Convention No. IV of 1907 that one of the purposes of the Conventions to revise the laws and general customs of war ... for the purpose is The wording of of modifying their severity as far as possible provisions have been inspired 'by a desire to diminish the evils of war so far as military necessities permit. .. ' Article 22 of the Conventions stipulate that the 'right of belligerents to adopt means of injuring the enemy is not unlimited'. This stipulation is followed by Article 23 Article 1 of both expressly prohibiting certain means of warfare. Conventions obliges parties to 'issue instructions to their armed land forces which shall be in conformity with the [annexed] Regulations ... ' The main aim of the Hague Regulations in regard to penal enforcement for breaches of the laws of war is to oblige States parties to institute proceedings against suspected offenders. By Articles 41 to Hague Conventions No. II of 1899 and No. IV of 1907, if an individual acted in a personal capacity in violation of an armistice agreement, the injured State could demand prosecution of the offender and request II •••

11

•

Individual Responsibility in Positive Laws of War

21

indemnity for losses sustained. 14 Article 56 common to both Conventions provides that seizure, destruction, or intentional damage to historic monuments, works of art and science, is prohibited, and should be made the subject of legal proceedings. 15 Hague Convention IV of 1907 expands the scope of State responsibility for the commission of illegal acts. By Article 3, a "belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." As Draper observes: [Hague Convention No. IV] ... neither mentioned nor disturbed the ancient customary law right of belligerents to try enemy personnel who fell into their hands and against whom evidence was available that they had committed violations of the law of war of a gravity that merited punishment. 16 This codification of customary international law maintains the principle that the State, rather than the individual, is responsible under international law for breach of the laws and customs of war. Responsibility of the individual in these Conventions is subsumed by the State from which compensation might be demanded. The individual was not taken to be responsible in a personal capacity except in so far as States could exercise their right at customary law to try enemy personnel for war crimes. 17 14 15 16

17

Scott, The Hague Conventions and Declarations of 1899 and 1907, 122 (1915). ld., at 127. Draper, The Modern Pattern of War Criminality, 6 Israel Y.B. on Hum. Rts. 9-48 at 15 (1976). Moreover, the applicability of the 1899 and 1907 Hague Conventions was limited by a si omnes or 'general participation' clause which stipulated that the Conventions were inapplicable to any of the belligerents to the conflict if even one of the belligerents was not a party. See Art. 2 of 1899 Hague Conv. No.II and 1907 Hague Conv. No.IV. in Scott, op.cit. note 40 at 102-3.

Chapter II

22

Inter-War Period A Commission of 15 members was appointed by the Allied Powers at the Preliminary Peace Conference of Paris in January 1919 to determine: responsibility of the authors of the war; facts as to breaches of the laws and customs of war committed by enemy Powers; the degree of responsibility attaching to individual members of enemy forces regardless of rank or office; and the possibility of establishing a tribunal suitable for trial of the war criminals.

18

The 1919 Commission recommended that " ... all persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of State, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution. " This recommendation sought to foreclose claims by Heads of State that they could not be responsible for breaches of the laws of war on the ground of sovereign immunity. If sovereign immunity were an admissible grounds for exempting officials of high rank, offenders of lesser rank could more persuasively argue the defence of superior orders; if the real decision makers were immune from legal responsibility altogether, then officials of lesser rank should be excused also. 19 However, the Commission's recommendation to expose high officials to legal responsibility met with stiff opposition from United States representatives. The US argued that subjection of Chiefs of States to this degree of responsibility was unprecedented in national or international law and would be contrary to the basic concept of national sovereignty. In deference to US and Japanese opposition, no mention of individual responsibility for Chiefs of State was included in the Treaty of Versailles.

18

19

History of the United Nations War Crimes Commission and the Development of the Laws of War at 32 (1948). History of the UNWCC at 38 (1948).

Individual Responsibility in Positive Laws of War

23

The result was that Articles 228 to 230 of the Versailles Treaty 20 stipulate that the German Government recognizes the right of the Allied Powers to try persons accused of having committed acts in violation of the laws and customs of war and is obliged to hand over German suspects to the Allied Powers for prosecution. By Article 229: Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power. Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned ... Similar provisions were inserted in other peace treaties, for example in the Treaty of Sevres between the Allied Powers and Turkey. 21 In December 1919, Germany pre-empted Allied plans for trial and prosecution of German and Associated war criminals by authorizing the Supreme Court of the Reich at Leipzig to try individuals for war crimes. The German Government offered to bring all German suspects to justice. Under political pressure from the German public, the Allied Powers decided not to execute Articles 228 or 229, and agreed to permit Germany to prosecute and punish the war criminals itself. The Allies presented a list naming 901 war criminals which the German Government agreed to bring to trial and exact appropriate punishment. The net result of the trials was that out of a total of 901 cases of 20

Signed June 28, 1919.

21

1920 Treaty of Peace Between the Allied Powers and Turkey (Treaty of Sevres), signed at Sevres 10 Aug. 1920, but never ratified. The Treaty of Sevres was replaced by the 1923 Treaty of Lausanne which exempted individuals from criminal responsibility and omitted the provision extending personal responsibility to the individual.

24

Chapter II revolting crimes brought before the Leipzig. Court, 888 accused were acquitted or summarily dismissed, and only 13 ended in a conviction; furthermore, although the sentences were so inadequate, those who had been convicted were not even made to serve their sentence. Several escaped, and the prison warders who had engineered their escape were publicly congratulated. 22

The authors of the History ofthe United Nations War Crimes Commission surmise that Articles 228 to 230 of the Versailles Treaty were not enforced because: 1) the sanctions were applied too late when public opinion no longer upheld them; 2) the Allies were no longer united after the war, and the US delegation strongly opposed the creation of an international criminal court; 3) the world was not yet internationally mature to understand the dangers of non-enforcement of the Treaty provisions; 4) Articles 228 to 230 were poorly framed, and failed to mention what law would determine penalties and were therefore impossible to carry out.23

In the remaining years prior to World War II, the efforts of the international community shifted toward outlawing war. In 1928 the International Treaty for the Renunciation of War as an Instrument of National Policy was accepted by forty-four States, not including the Soviet Union. 24 The parties to the treaty "... solemnly declare ... that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. "61

22 23 24

History of the UNWCC at 48 (1948). Id., at 52. The Treaty is also known as the Pact of Paris or Kellogg-Briand Pact, signed August 27, 1928, entered illfo force 24 July 1929, 94 L.N.T.S. 57, 46 Stat. 2343, T.S. No.796.

Individual Responsibility in Positive Laws of War

25

(ii) NUREMBURG CHARTER AND JUDGMENTS

Early steps towards punishment of World War II criminals were taken in 1942 with the Declaration of St. James, 25 which resolves to see to it in a spirit of international solidarity that (a) those guilty or responsible, whatever their nationality, are sought out, handed over to justice and judged, (b) that the sentences pronounced are carried out. The intention of the Allied Powers to prosecute and punish authors of war crimes, crimes against humanity and crimes against peace, were reiterated in official statements by President Roosevelt, Prime Minister Churchill and representatives of the USSR and other Allied Governments. Further development of the legal concept of war crimes was promoted by the London International Assembly, a non-official body whose members were designated by Allied Governments. The Assembly created a Commission which met about 30 times and made a report of about 450 pages on matters including the scope and definition of war crimes. 26 The Commission concluded that the concept of war crimes evolves as the conduct of war changes in mode and method. Members of the Commission also took the view that no technical legal excuse for the Nazi policy of racial extermination could be countenanced. A majority of the members of the Commission indicated a preference for defining 'war crimes' by way of enumerating specific war crimes, rather than to maintain a general definition of 'war crimes' as meaning 'violations of the laws of war'. This preference for enumeration tended toward a more flexible approach to the definition of 'war crimes'. The alternative definition of 'war crimes' stricto sensu as consisting of those which II •••

II

25

26

Punishment for War Crimes - the Inter-Allied Declaration, signed January 13, 1942 by representatives of the Governments of Belgium, Czechoslovakia, France, Greece, Luxembourg, Norway, the Netherlands, Poland and Yugoslavia. See History of the UNWCC at 89-92 (1948). Id., at 99.

Chapter II

26

constitute a violation of the laws of war is narrower; the laws of war are characteristically limited in application to specific technical methods in the use of weaponry etc., or to specific situations. The Commission recommended that 'war crimes' should be taken to include the preparation and waging of an aggressive war, and crimes committed for the purpose of racial or political extermination (regardless of the geographic location where it was committed). The Legal Committee of indiscriminate mass arrests for the Commission recommended that II...

the purpose of terrorizing the population . . . and acts violating family honour and rights, the lives of individuals, religious convictions and liberty of worship ... should be included in the definition of 'war II

crimes'. The Legal Committee opined that the legal basis for this inclusion is the de Martens Preamble 27 to Hague Convention No. IV. of 1907, which signifies that the concept of war crimes in international law is not limited to those acts specified in the Hague Conventions, but is amenable to change and adaptation as circumstances might require. 28 The Assembly was anxious to foreclose the defence of superior orders which had frustrated post World War I efforts at war crimes prosecution. Its Commission on war crimes therefore recommended that superior orders should not be available as an exculpatory defence, but ought to be considered in mitigation of punishment. As the authors of the History of

the United Nations War Crimes Commission record:

27

28

"Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience." in Scott, The Hague Conventions and Declarations of 1899 and 1907 at 102 (1915). History of the UNWCC at 172 (1948).

Individual Responsibility in Positive Laws of War

27

The members of the London International Assembly took great pains to destroy the prevailing theory, defended at Versailles by the United States representatives, that a head of State cannot be held personally responsible or tried for having framed a policy of aggression or one which disregards the fundamental laws of mankind, and that even for violations of positive law he is responsible only to the tribunals and laws of his own country. It was unanimously agreed that rank and position, however exalted, confers no immunity upon the accused in respect of war crimes, and that those in high places who ordered them should be held responsible, as well as the actual perpetrators. It would be illogical to punish the obscure subordinate, while the high official, who had by legislative or administrative action, contrived to plan the criminal policy, escaped retribution. 29 The failure of the Leipzig Trials following World War I hardened the resolve of the Allies to ensure that Nazi war criminals would be brought to justice and that appropriate retribution would be executed. The Allied Governments met in London in October 1943, and established the United Nations War Crimes Commission, with advisory and investigatory functions, and authorized it to prepare lists of war criminals and to study methods for all aspects of enforcement. 30 On August 8th, 1945, Great Britain, France, the United States and the Soviet Union signed the London Agreement, 31 which provides that II •••

there shall be established after consultation with the Control Council for Germany an international military tribunal for the trial of war criminals whose offenses have no particular geographical location. The Nuremburg Charter was annexed to the London Agreement. The Tokyo Military Tribunal was established in January 1946 by Special Proclamation of the Supreme Commander for the Allied Powers. 32 II

29

30

31 32

/d., at 101-2. See Smith, Reaching Judgment at Nuremburg 1977 for a political history of events leading up to the Nuremburg Trial. Cmd. Paper 6903. H.M.S.O. (1945). See, Minear Victors' Justice: The Tokyo War Crimes Trials 1971.

28

Chapter II Article 6 of the Nuremburg Charter provides: ... The following acts or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for any of the foregoing; b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, illtreatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; c) CRIMES AGAINST HUMANITY: namely, 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. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Art.?: The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

The Nuremburg Tribunal held that: It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible but are protected by the doctrine of the sovereignty of the State. In the opinion of the

Individual Responsibility in Positive Laws of War

29

Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as upon States has long been recognized ... . . . [T]he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorizing action moves outside its competence under international law. Other military tribunals followed the holding of the Nuremburg Tribunal with respect to individual responsibility 33 in the cases of re Flick and Others, 34 re Krupp and Ten Others, 35 Ohlendorf and Others, 36 and Krauch and Twenty-Two Others. 37

33

34

35

36

37

See Brand, War Crimes Trials and the Laws ofWar, 26 Brit. Y.B. Int'l L. 414427 (1949). "International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the Government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong, and punishment falls on the offender in propria persona. The application of international law to individuals is no novelty." (U.S. Milit. Trib., Nuremburg, 1947), 14 Int'l L. Rep. 266. "The laws and customs of war are binding no less upon private individuals than upon government officials and military personnel.", (U.S. Milit. Trib. at Nuremburg), 15 Int'l L. Rep. 620 (1948). "Defence Counsel have argued that the responsibilities resulting from International Law do not apply to individuals. It is a fallacy of no small proportion that international obligations can apply only to the abstract legal entities called States. Nations can only act through human beings ... ", Ann. Pub. Int'l L. Cases No. 217 (1948) at 659. "It can no longer be questioned that the criminal sanctions of international law are applicable to private individuals." Ann. Pub. Int'l L. Cases Case No. 218, (1948) 348 et seq.

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(iii) CONTENT AND LEGAL STATUS OF THE NORM

SINCE NUREMBURG In the laws of war, as in law generally, there is a perennial dilemma between change and permanence; legal norms must adapt to changing needs, but must also be sufficiently stable to permit adherence. Laws of war must adjust to new methods and conditions of war in a rapidly changing world, yet be stable, predictable and clear. Furthermore, particular legal norms in a state of flux are less likely to bear the crucial element of objectivity. Rapidly evolving norms often lack widespread recognition at the outset, and sometimes express a particular ideology or political opinion, rather than legal rights and obligations supported by broad consensus. The horns of this dilemma are especially sharp in the context of individual responsibility for war crimes, even more so with respect to whether Nuremburg Charter rules on individual criminal responsibility were part of pre-existing international law. It is a general principle that criminal law should not apply retroactively and that persons should only be punishable for acts which they could know to be criminal acts at the time they committed them. If the Nuremburg Charter rules were new, then arguably the trials pursuant to the Charter offended the principles of nullum crimen sine lege and nulla poena sine lege ie. that there can be neither crime nor punishment unless there is a law which so declares. 38 With these tensions in mind, and given the dual character of law, it is necessary to assess the content and legal status of the interdiction of war crimes as it developed from a norm expressed in the Nuremburg Charter to present day international law. Irregularities in the Nuremburg Charter 38

See Finch, The Nuremburg Trial and International Law, 41 Am. J. Int'l L. 2037 (1947), Schick, The Nuremburg Trial and the lnternationalLaw ofthe Future, 41 Am. J. Int'l L. 770-794 (Oct.1947), Wright, War Criminals, 39 Am. J. lnt'l L. 257-285 (Apr.1945) and The Law ofthe Nuremburg Trial, 41 Am. J. Int'l L. 38-72 (Jan.1947).

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and Judgement affect the present day legal status of individual responsibility as a norm of international law since the status of a legal norm derives from its sources. Military trial decisions, such as the Breisach Trial and decisions of the Leipzig trials, 39 indicate that responsibility of the individual for breaches of the laws of war and the inadmissibility of the defence of superior orders were viewed early on as essential elements to the prescription against war crimes. Yet the predominant thrust of pre-Nuremburg law on war crimes is that only the State may be held responsible under international law for war crimes. Individual responsibility for war crimes derived from the freedom of the State to prosecute individuals for acts contrary to the laws and customs of war. This was a function of extraordinary and optional military jurisdiction (therefore a national exercise of sovereignty), rather than international enforcement of individual responsibility in international law. The content of norms prohibiting breaches of the laws of war prior to the Nuremburg Charter differ substantially from those enumerated in the Charter. The content of 'war crimes' has become more refined since World War II. The adoption of a broad definition of 'war crime' over the concept of 'war crimes stricto sensu' facilitated a far more progressive development of the norm than had hitherto taken place. The question of content and legal status of the prohibition against war crimes really involves two distinct norms, rather than the evolving content of a single norm. The newer norm, as expressed in the Nuremburg Charter began to gain greater recognition over the older norm of war crimes stricto sensu. These two norms differ in content and legal status, and it is likely that the Nuremburg Charter definition of 'war crimes' has overtaken the definition of 'war crimes' stricto sensu.

39

In the Llandovery Castle Case, decided by the Supreme Court of Leipzig in 1921, 16 Am.J. Int'l L. 708 (1922), two German officers were held individually responsible for sinking an Allied hospital ship.

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The Nuremburg Charter, initially signed by the United States, the Soviet Union, France and the United Kingdom, was eventually signed by nineteen other States. The Nuremburg Principles were adopted by the UNGA in a Resolution of December 11, 1946 which affirmed 'the principles of international law recognized by the Charter of the Nuremburg Tribunal and Judgment of the Tribunal'. 40 Partly for these reasons, the Nuremburg Charter is today considered the most authoritative source of individual responsibility for war crimes. Nevertheless, the Nuremburg Charter cannot be considered a true precedent in international law. Neither can it stand as very strong authority for the principle of individual responsibility for war crimes in international law, for several reasons. The Nuremburg Tribunal was international in the sense that it was the creation of more than one State, was not part of the judicial system of any one State, and it applied international, rather than national law. However, the fact that none of the Judges were of a nationality of one of the defeated States or even of a neutral State, contradicts the notion that the Tribunal was truly international in character. As the Tribunal itself held, by creating the Nuremburg Tribunal the signatories of the London Agreement ' ... have done together what any of them might have done singly.' Ifthe composition and trial proceedings of Nuremburg had been less partial, and if the trial had been conducted by a number of representatives from neutral countries which granted representation from both victors 41 and defeated alike, perhaps the Nuremburg judgment would stand today as stronger authority for individual responsibility in international law than it does. It is also significant that not one Allied soldier or commander was brought before the Nuremburg Tribunal to answer for the indiscriminate bombing of Dresden, Hiroshima, Nagasaki, or other civilian targets on the Axis side.

40 41

G.A. Res. 174, U.N. Doc. A/180 (1948). See Minear, Victor's Justice: The Tokyo War Crimes Trials, 1971.

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The one-sidedness of the Nuremburg Tribunal indicates that it falls more into the pattern of national military tribunals and it is therefore not a true archetype of an impartial international tribunal. Aside from the substantive defects in the composition and procedure of the Nuremburg Tribunal, there are purely formal reasons why the judgement in the Nuremburg Trial cannot constitute a precedent in international law. As Kelsen argues, 42 a true precedent has binding force, which means that a general legal rule established by the precedent binds the tribunal in adjudicating later similar cases. Yet the Nuremburg Tribunal was not a permanent court and no other international court with permanent criminal jurisdiction over the individual has been created to decide later similar cases. Furthermore, Article 59 of the Statute of the International Court of Justice refutes the notion of binding precedence in international law by providing that "The decision of the Court has no binding force except between the parties and in respect of that particular case." Thus the principles expressed in the Charter and Judgments have gained wide acceptance, but the Nuremburg Charter did not establish any permanent international court of criminal jurisdiction, nor did it intend to do so. The International Military Tribunals at Nuremburg and Tokyo remain the only examples of tribunals in modern history to deal with a wide range of crimes under international law, although there has been no dearth of international armed conflicts attended with the horrors of war crimes. By way of example, it may be recalled that in April 1973, Bangladesh announced that it would proceed to try 195 Pakistanis for genocide, war crimes, crimes against humanity, as well as for grave breaches under the Geneva Conventions. Despite the well-founded grounds for prosecution and the determination of Bangladesh to try the alleged offenders, complex political pressures ensued. These pressures

42

Kelsen, Will the Judgment in the Nuremburg Trial Constitute a Precedent in International Law?, 1 Int'l L.Q. 2 153-171 (Sum.1947).

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thwarted Bangladesh from proceeding with the trials and Bangladesh eventually returned the suspected offenders to Pakistan. 43 Political constraints often obstruct the prosecution of individuals suspected of having committed serious violations of human rights, as evidenced by the multitude of serious human rights violations since 1945, but the absence of any prosecution of post World War II offenders by international tribunals. Despite these shortcomings in the Nuremburg Charter and proceedings, the writings of some eminent jurists indicate a shift in learned opinion on the issue of individual responsibility under the Nuremburg Charter. Many eminent jurists writing in the years immediately following the adoption of the Nuremburg Charter view its imposition of responsibility upon individuals as a new rule. For example, Fitzmaurice and Reut-Nicolussi, writing separately in 1948, 44 and Fenwick writing in 1951, 45 opine that the imposition of individual responsibility by the Nuremburg Charter was not a codification of preexisting custom. Sir Humphrey Waldock, on the other hand, writing in 1952 46 indicated less certitude for his part and he noted the controversy thus: Jurists have been deeply divided, first, on the question whether aggressive war in fact already established in international law as a crime and secondly, whether, even if this was so, international law 43

44

45

46

For an interesting account of the circumstances surrounding the political developments preventing Bangladesh from prosecuting the 195 alleged war criminals, see Paust & Blaustein, War Crimes and Due Process: The Bangladesh Experience, 11 No.1 Vand. J. Transnat'l L. 1-38 (1978). See Fitzmaurice, The Juridical Clauses ofthe Peace Treaties, 73 Hague Recueil at 266 (1948-11), and Reut-Nicolussi, Displaced Persons in International Law, 73 Hague Recueil at 21 (1948-11). Fenwick, The Progress of International Law During the Past Forty Years, 79 Hague Recueil 63 (1951-11). Waldock, The Control of the Use of Force by States in International Law, 81 Hague Recueil 485 (1952-11).

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already recognized individuals to have a personal responsibility for complicity in their State's aggression. Today, most commentators on the subject agree that the principles embodied in the Nuremburg Charter form part of general international law, notwithstanding that it may not have held such a status at the time it was enforced. 47 The norm of exclusive State responsibility in international law for war crimes gave way to the principle of individual responsibility as the Nuremburg Charter gained greater recognition. Individual responsibility for war crimes has become widely accepted as an international legal norm, but there exist no judicial organs to enforce it. Recognition of the norm, but lack of means of enforcement, seem to signify wide consensus on the meaning of war crimes and its imposition of individual responsibility in international law, but uncertain support for the Nuremburg Charter as an enforcement model. It is well recognized by the international community that the crimes committed by the Nazis and their associates were unparalleled in history. Notwithstanding the paucity of international legal authority supporting individual responsibility for such acts, it is not unjust that the individual perpetrators of such horrendous crimes were punished. The principle that legal norms of criminal responsibility shall not be retroactive is a general principle of justice. 48 As such, it should be viewed in perspective with other norms of legal justice. One such norm is that heinous crimes ought not to go unpunished. Given the horridness and

47

48

See for e.g. Brownlie, Principles of Public International Law: Fourth Ed. at 562 1990, Dinstein, International Criminal Law, 20 Israel L. Rev. 206-242 (1985), Oppenheim, International Law: Eighth Ed. 1963 and ROling, Criminal Responsibility for Violations of the Laws of War, 12 Belgian Rev. Int'l L. 8-26 (1976). As per the Nuremburg Tribunal: "It is to be observed that the maxim nullum crimen sine lege, is not a limitation of sovereignty, but it is in general a principle of justice." in Nazi Conspiracy and Aggression, Opinion and Judgment, Washington 1947.

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extreme degree of the crimes committed by the Nazis, it is right to say that while the technical principle of the non-retroactivity of criminal law may have been offended by Nuremburg, it was not unjust that Nazi war criminals were punished. The principle of non-retroactivity of criminal law is based on the idea that individuals should not be liable for acts which they could not know to be criminal. This principle applies poorly, if at all, to crimes of extreme cruelty since such crimes appear to be contrary to the spirit of the law which is to maintain basic order and respect for human dignity. However, if one were to maintain a strictly positivist view, there should be neither crime nor punishment unless positive law clearly proscribes the particular act or omission in question. In any case, that only war criminals from the Axis side were prosecuted and punished offends the principle that all persons be treated fairly or impartially. It is important to keep in mind, for the purpose of coming to a full appreciation of the present legal status of individual responsibility in international law, that the Nuremburg Charter rather than the Hague Conventions or the 1928 Kellogg-Briand Pact, is the true legal source of individual responsibility for war crimes, crimes against peace and crimes against humanity.

3. CRIMES AGAINST PEACE

Whereas the principle of individual responsibility for war crimes was not entirely new in 1945, individual responsibility for 'crimes against peace' began with Article 6(a) of the Nuremburg Charter. 49 Responsibility for the launching of an aggressive war does not fit in either the traditional definition of war crimes, nor war crimes stricto sensu, since 'war crimes' denotes crimes committed after war has started, not before. 49 See

Art. 6 of the Nuremburg Charter quoted at length in ch. II (2) (ii) above.

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Article 6(a) of the Nuremburg Charter is phrased in broad terms. If it had been given maximum possible effect, the Charter could have been used to indict a large portion of the entire German population since it participated however slightly, in a common plan or conspiracy for the accomplishment of war crimes or crimes against humanity. 50 However, the United States Military Tribunal at Nuremburg limited culpability to officers at levels of responsibility for the setting and enforcement of policy, in the 1948 cases of German High Command Triaf 1 and /.G. Farben Trial. 52 The prosecution argued that since the 1928 Kellogg-Briand Pact was a solemn prohibition in international law on the use of war as an instrument of national policy, it follows that the commission of war is a crime. The defendants countered that the Pact does not specifically state that aggressive war is a crime, nor does it authorize any court to try individuals. The defence argued that the category of crimes against peace was entirely new law and not applicable to World War II offenses; the principles of nullum crimen sine lege, nulla poena sine lege therefore nullify the jurisdiction of the Tribunal over the individuals charged of crimes against peace. The Tribunal held that while neither the Kellogg-Briand Pact nor 1907 Hague Conventions provide that breaches thereof are crimes entailing individual responsibility, it nevertheless had jurisdiction to prosecute the defendants. For authority, the Tribunal relied chiefly on Ex pane Quirin 53 in which the United States Supreme Court upheld a military tribunal's conviction of German nationals who landed in the US to carry out sabotage and espionage for offenses contrary to the law of nations.

50

51 52 53

See Dinstein, International Criminal Law, 20 Israel L. Rev. 206, 210 (1985) for argument along these lines. See 15 Int'l L. Rep. 376 (1948). See Id., at 668. Ex parte Quirin 317 U.S.1 (1942) at 27-28.

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In that case Chief Justice Stone had held for the majority that: From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. The Nuremburg Tribunal went on to state that "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced ... " However, little support can be found in pre-Nuremburg Charter international law to support individual responsibility for crimes against peace. As reviewed above, in the 1899 and 1907 Hague Conventions, responsibility of the individual is subsumed by the State from which compensation might be demanded (as in international customary law). The idea that States or individuals could be criminally liable is not apparent in these Conventions. With respect to the Versailles Treaty, it has been noted above that the United States opposed the 1919 Commission recommendation that individuals should be liable to criminal prosecution, regardless of rank in government; the Versailles Treaty therefore made no mention of the liability of Heads of State. The Kellogg-Briand Pact outlaws the launching of war in violation of treaties or assurances but does not refer to criminal responsibility. To interpret the Pact as criminalizing, rather than merely outlawing war, stretches the meaning of the Pact farther than its terms will bear. As for the primary legal authority upon which the Nuremburg Charter relied, the US case of Ex pane Quirin binds only later US adjudication and not adjudication in other countries, let alone that of international tribunals. 54

54

See Finch, The Nuremburg Trial and International Law, 41 Am. 1. Int'l L. 2037 (1947), Schick, The Nuremburg Trial and the International Law ofthe Future, 41 Am. 1. Int'l L. 770-794 (Oct.1947), Wright, War Criminals, 39 Am. 1. Int'l

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Schwarzenberger summarizes the drafting history of the Nuremburg Charter's provision of 'crimes against peace' thus: . . . the United States Delegation to the London Conference of 1945 was the driving force behind this essay in international law-making. The British members were mildly skeptical. The French found it difficult to square with their legal consciences the proposition that crimes against peace were part of lex lata, and the Russian members desired to restrict any formulation of crimes against peace so as to limit it to acts of German aggression. In particular, and keeping in mind their own invasion of Finland, the Russians tried to keep the term 'invasion' out of any definition of aggressive warfare. 55 Even at the drafting stage of Article 6 of the Charter, 'crimes against peace' was a controversial new category. It is not a sufficient legal basis for a tribunal claiming to apply international law to prosecute and punish individuals where there is no international legal norm clearly authorizing it do so. It is doubtful that the Nuremburg Tribunal's prosecution of individuals for the crime against peace was supported by existing legal principles. Nevertheless, as with the Nuremburg Charter definition of war crimes, the assertion of individual responsibility for crimes against peace finds ex post facto support in certain sources of international law. 56 A very important legal source for the prohibition of aggression in general is the Charter of the United Nations. Articles 2(4), 39 and 51 of

55 56

L. 257-285 (Apr.1945) and The Law ofthe Nuremburg Trial, 41 Am. J. Int'l L. 38-72 (Jan.1947) for a full discussion of these issues. See Schwarzenberger, 2 International Law as Applied by International Courts and Tribunals at 486-7 (1968). In 1946, the UNGA affirmed 'the principles of international law as recognized by the Charter of the Nuremburg Tribunal and the judgment of the Tribunal.' The International Law Commission was authorized by the United Nations to further formulate these principles. G.A. Res.95(1), GAOR First Sess. Pt. II, 188 (Dec.ll, 1946).

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the UN Charter are especially relevant. Article 2(4) enjoins members from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Article 39 authorizes the UN Security Council to determine the existence of any threat to the peace or act of aggression, and to make recommendations or decisions as to what measures shall be taken for the maintenance of international peace and security. Article 51 preserves the customary right of individual or collective self-defense if an armed attack occurs. United Nations General Assembly Resolution 2131 declares the inadmissibility of foreign State intervention in the affairs of other States. 57 In 1970, UNGA Resolution 2625 (XXV), adopted without a vote, states that 'A war of aggression constitutes a crime against the peace for which there is responsibility under international law. ' 58 In 1974, the UNGA adopted Resolution 3314 which defines aggression. 59 Article 5(2) of Resolution 3314 declares that 'A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.' The explanatory note to Article 5(2) in the Report of the Special Committee on the Question of Defining Aggression 60 states that the words 'international responsibility' are used without prejudice as to the scope of this term. In the Sixth Committee of the forty-first session of the UNGA, a set of draft articles were submitted on responsibility for crimes against the peace and security of mankind. Alterations suggested by members of the 57

58

59 60

Declaration on the Inadmissibility of the Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty 1965, G.A. Res. 2131 (XX), GAOR, 20th Session, Supp.14 p. 11. adopted 109 to 0, with only the United Kingdom abstaining. General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations 1970, adopted without a vote Oct.24, 1970. Resolution on the Definition of Aggression 1974, adopted without a vote, Dec.14 1974, GAOR 29th Session, Supp.21. GAOR, 29th Session, Supp.19.

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General Assembly were considered and modifications were made to these articles by the International Law Commission. At the thirty-ninth session of the ILC, the Special Rapporteur presented the Fifth Report on the Draft Code of Offenses against the Peace and Security of Mankind. 61 These sources of international law tend to validate the legal category of crimes against peace and affirm the proposition that aggression is a crime under international law. Today, the concept of 'crimes against peace' is developing as a legal norm of general international law and appears to be gaining wide recognition. Whether the definition of crimes against peace includes individual responsibility is as yet unclear.

4. CRIMES AGAINST HUMANITY

(i) BEFORE NUREMBURG The appearance of 'crimes against humanity' and cognate terms in international law predate the Nuremburg Charter. Hague Conventions No. II of 1899 and No. IV of 1907 respecting the Laws and Customs of War on Land refer to the 'laws of humanity' 62 in the preambles, but the Conventions do not define the term. Several official statements of European Governments, dating from the early 1800s which condemn the Turkish Government for brutal massacres of minority Christian populations, refer to the 'laws' or 'principles of humanity'. In several instances, European Powers invaded territory under Ottoman rule in order to prevent further slaughter of Christian minorities. In this connection, it has been argued that the laws of humanity form part of international customary law and give rise to a right

61 62

Fifth Report A/CN.4/404 (March 17, 1987). See further below ch. V(2). See Scott, The Hague Conventions and Declarations of 1899 and 1907 at 102 (1915).

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of State A (or States acting collectively) to intervene militarily on the territory of State B to put a stop to State B's gross violation of human rights against its own nationals. However it is doubtful that 'humanitarian intervention', as it is called, was ever either sufficiently clear in its concept of the 'laws of humanity' or in its designation of rights and obligations, to be a norm of internationallaw. 63 On occasion, the term 'laws of humanity' has been asserted as a legal ground for individual responsibility in international law. On May 28th 1915, France, Great Britain and Russia condemned the Turkish Government for its massacres of the Turkish Armenian minority as constituting 'crimes against humanity and civilization' and declared that all members of the Turkish Government and its agents would be held personally responsible for these crimes. 64 The 1919 Commission on Responsibilities referred to the 'laws of humanity' in its consideration as to whether the Central Empires, and allies Turkey and Bulgaria, were responsible in international law for the massacres of minority populations during World War I. A majority of the Commission's members concluded that these Powers 'by barbarous or illegitimate methods in violation of the established laws and customs

63

64

It is unlikely that this supposed right ever existed in international law and there seems to be no scope for such a doctrine in the international system after the adoption of the U.N. Charter. See Franck & Rodley, After Bangladesh: the Law of Humanitarian Intervention by Military Force, 61 Am.J.Int'l L. 275-305 (1973), and Rodley, Human Rights and Humanitarian Intervention: 1he Case Law ofthe World Court, 38 Int'l & Comp. L.Q. 321-333 (Apr.1989). But see Fonteyne, 1he Customary Law Doctrine of Humanitarian Interventions: Its Current Validity Under the United Nations Charter, 17 Comp. Jurid. Rev. (USA) 27-86 (1980), and de Schutter, Humanitarian Intervention: a United Nations Task, 3 Calif. W. L. Rev. (1972). For pre-UN Charter formulations of humanitarian intervention see Rougier, La 1heorie de /'intervention d'Humanite, 17 Rev. Gen. du Droit Int. 468 (1910), Borchard, The Diplomatic Protection of Citizens Abroad 1915, and Stowell, International Law 1931. History of the UNWCC at 35 (1948). See also Bassiouni, Crimes against Humanity, in 1 International Criminal Law 51-71 (Bassiouni ed. 1986).

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of war and the elementary laws of humanity' were responsible for participation on World War 1. 65 From this statement, it appears that the majority of the 1919 Commission acknowledged 'the laws of humanity' as distinct from the laws of war. In fact the 1919 Commission itself did not elaborate further on this point; consequently it is not clear how its members viewed the relation of crimes against humanity to war crimes. Part of the reason for this ambiguity is that the US representatives to the Commission objected to references to 'the laws and principles of humanity'. The US representatives had argued that: ... war was and is by its very nature inhuman, but acts consistent with the laws and customs of war, although these acts are inhuman, are nevertheless not the object of punishment by a court of justice. A judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity. A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and accordingly, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity. 66 The thrust of the US objection was to contradict the validity of 'crimes against humanity' as an emerging legal norm of international law. As for individual responsibility, the US representatives countered the Commission's recommendation that there should be individual responsibility for Chiefs of State on the ground that this would offend the basic principle of State sovereignty. The 1919 Commission recommended the peace treaties should stipulate that the enemy Government concede to the Allied and Associated States the right " ... to try and punish any enemy who fell within its power and

65 66

Id., at 36. Id.

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who had been guilty of violation of the principles of the law of nations as these result from the laws of humanity and from the dictates of public conscience." However the dissenting view of the US and Japanese Governments prevailed; the peace treaties do not contain any reference to the 'laws of humanity'. (ii) NUREMBURG CHARTER AND JUDGMENTS

After World War II however, the US Government urged the application of individual responsibility for crimes against humanity in view of atrocities committed by the Nazis against German Jews, Catholics, Gypsies and others. The horrendous persecutions by the German Government against its own nationals were viewed by the US as a matter of international, rather than national concern, especially as these persecutions were instrumental in causing the outbreak of World War II. It was argued that the adoption of 'crimes against humanity' as a legal category separate from 'war crimes' was needed because war crimes did not cover offenses committed by Germans against Germans. If the terms 'humane acts' and 'persecution' in Article 6(c) of the Nuremburg Charter were interpreted expansively, 'crimes against humanity' would take on a very broad meaning. The Article 6(c) definition contains some important restrictions however, and the Nuremburg Tribunal applied its own restrictive interpretation. In particular, the acts must have been committed against civilians rather than soldiers (whereas norms prohibiting war crimes restrict actions against soldiers as well), and the acts must have been committed 'either before or during the war' (although what period of time before the war is not specified). A Protocol of October 6, 1945, done in Berlin, amended the original version of Article 6(c). The original provision contained a semicolon which followed the word 'war' which seemed to imply that murder etc. could be considered as crimes against humanity independent of the jurisdiction of the Tribunal. However, the semicolon

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was replaced with a comma by the Protocol. The result was to imply that crimes against humanity were to be interpreted to import liability only for acts connected to the war. To remove any remaining ambiguity on this point, the United Nations War Crimes Committee on Facts and Evidence held discussions in January 1946, where it was decided that ". . . crimes against humanity as referred to in the Four Power Agreement of 8th August, 1945, were war crimes within the jurisdiction of the [United Nations War Crimes] Commission. "67 The interpretation of the Nuremburg Charter definition of 'crimes against humanity' as connected to 'war crimes' was affirmed in relation to the specific charge of the Czechoslovak Government made against Sepp Dietz, a commanding officer of an S.S. Unit in Austria. Dietz was charged with having provoked clashes in Moravia during which Czech citizens and police were killed or seriously wounded, in order to facilitate the invasion of Czechoslovakia at the beginning of March 1939. The issue in connection with crimes against humanity was whether the Czechoslovak charge came within the jurisdiction of the Nuremburg Tribunal, and if so, on what legal ground. The Legal Committee decided that the charge against Dietz came within the Tribunal's jurisdiction thus: Crimes against humanity, as defined in paragraph (c) of Article 6 ... should be considered as war crimes in the same way as violations of the laws and customs of war, as defined in paragraph (b) of that Article. As the authors of the History of the United Nations War Crimes Commission record, the Committee chose to apply the wider concept of war crimes, and to interpret crimes against humanity as coming within it, rather than to interpret crimes against humanity as a separate legal

67

See Dinstein, International Criminal Law, 20 Israel L. Rev. 206-242 (1985) and Id. , at 36-7.

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category. 68 In response to other charges made by the Czechoslovak Government, the Legal Committee observed that there are two types of crimes against humanity; there are 'murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war', and second, there are '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'. For a crime against humanity to come within the jurisdiction of the Tribunal, it must have been connected to a crime against peace, or a war crime, to be a punishable offence. The corollary of this is that murder, extermination, enslavement, deportation and other inhumane acts committed in peace time were not conceived as offenses punishable by the Nuremburg Tribunal. The phrase 'against any civilian population' underscores that the term 'crime against humanity' covers crimes committed against the Government's own nationals, not just persons of enemy or foreign nationality. (iii) CONTENT AND LEGAL STATUS OF THE NORM SINCE NUREMBURG There remain some serious ambiguities in the meaning of 'crime against humanity' owing to conflicting trends in interpretation, and to incompatible functions the norm was expected to fulfil. On the one hand, the Allies perceived a need to recognize crimes against humanity in order to impose individual responsibility for certain acts committed by the Nazis against German and non-German nationals which did not fit within the concept of war crimes. War crimes in the traditional sense do not 68

Id., at 177-8.

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cover acts committed in peace time, nor acts where victims are nationals of the offending State. On the other hand, the category of crimes against humanity in the Nuremburg Charter was formulated, interpreted and affirmed as operative only in connection with war crimes and crimes against peace. The Nuremburg Charter was intended to apply only to the Second World War. Therefore, it should not be surprising that 'crimes against humanity' were narrowly defined as linked to 'war crimes' and 'crimes against peace'. This is not an answer to the scope and application of crimes against humanity as a norm of international law however, especially since crimes against humanity did not emerge as an international legal norm until its inclusion in the Nuremburg Charter. Ambiguity in the concept of 'crimes against humanity' arises from the fact that 'crimes against humanity' are not independent of 'war crimes' or 'crimes against peace', yet are not wholly part of either category. As in the case of war crimes and crimes against peace, it is doubtful that prior to the Nuremburg Charter, individual responsibility for crimes against humanity constituted a valid norm of international law. Sufficient legal recognition of crimes against humanity to qualify it as a legal norm did not yet exist. The Versailles Treaty did not contain any reference to crimes against humanity or cognate terms notwithstanding careful consideration it had received in the 1919 Commission on Responsibilities. As discussed above, the 1907 Hague Regulations and official statements made at various times by European Governments in condemnation of brutal massacres by the Turkish Government help to elucidate the content and meaning of the putative norm, but do not signify a sufficient degree of general recognition by States, by way of opinio juris or general practice. The difficult issues surrounding the application of ex post facto law by the Nuremburg Tribunal apply in the case of crimes against humanity as for war crimes and crimes against peace. However notwithstanding a certain measure of ambiguity as to its meaning, the category of crimes against humanity is today well recognized in international law as subsequently affirmed and expanded in codification

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efforts of the ILC.

5. SIGNIFICANCE OF THE NUREMBURG TRIALS AND EXPANSION OF 'CRIMES AGAINST HUMANITY' The Nuremburg trials were innovative in their own time. They decisively established individual responsibility for war crimes, crimes against peace and crimes against humanity. 'Obedience to superior orders' was deemed no longer acceptable as an absolute defence in international law for the crimes listed in the Nuremburg Charter. The trials made clear that even the highest official could be held liable to the most severe penalty for acts amounting to serious human rights violations. The Nuremburg trials also demonstrate that international resolve can be sufficiently compelling in modern times to result in the prosecution and punishment of individuals for the systematic commission of gross violations of human rights. This was a complete rejection of the extreme positivist assertion that the State, supreme within its own sphere, sovereign and equal to other States in international law, shields its officials from international sanction by virtue of State privileges and immunities. 69 The political resolve of the international community to punish individuals responsible for crimes committed in World War II These sanctions were enforced translated into penal sanctions. notwithstanding that the acts in question were committed pursuant to official orders backed by the full legal authority of the State. Moreover, the Nuremburg trials symbolized the possibility that such a trial might be carried out in future. The United Nations General Assembly took several measures to ensure that the lessons of the Nuremburg trials were not lost on future

69

See Higgins, The Abuse ofDiplomatic Privileges and Immunities: Recent United Kingdom Experience, 19 Am. J. Int'l L. 641-651 (1985).

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generations. General Assembly Resolution 3/1 of February 13, 1946 aims at fostering national implementation of the Nuremburg Principles by urging member States to continue to arrest and to extradite war criminals for prosecution to the State where they were alleged to have committed the offence. 70 On December 11, 1946 the UNGA adopted Resolution 95/1 affirming 'the principles of international law recognized by the Charter of the Nuremburg Tribunal and the Judgement of the Tribunal'. 71 Resolution 95/1 also instituted codification of the Nuremburg principles. Furthermore, the principles established by the Nuremburg trials have been incorporated into many domestic legal systems.n However, the significance of the Nuremburg trials extends far beyond the immediate time and place in which they took place. Although the Nuremburg Judgment is not a precedent in international law in the strict

70

71

n

See Bierzanek, War Crimes: History and Definition, in 3 International Criminal Law: Enforcement 44-48 (Bassiouni ed. 1987). The Nuremberg Principles formulated by the I.L.C. are as follows: I. Any person who commits or is an accomplice in the commission of an act which constitutes a crime under international law is responsible therefor and liable to punishment. II. The fact that domestic law does not punish an act which is an international crime does not free the perpetrator of such crime from responsibility under international law. III. The fact that a person who committed an international crime acted as Head of State or public official does not free him from responsibility under international law or mitigate punishment. IV. The fact that a person acted pursuant to order of his Government or of a superior does not free him from responsibility under international law. It may, however, be considered in mitigation ofpunishment, ifjustice so requires. V. Any person charged with a crime under international law has the right to a fair trial on the facts and law. See ILC Rep. on the Formulation of Niimberg Principles, [1950] 2 Y.B. Int'l L. Comm'n U.N. Doc. A/CN.4/22/1950.(Spec. Rapp. Spiropoulus). See Komarow, Individual Responsibility Under International Law: The Nuremburg Principles in Domestic Legal Systems, 29 Int'l & Comp. L.Q. 21-37 (Jan.1980).

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sense of the term, 73 it has had a marked effect on the meaning and legal status of norms prohibiting genocide, and apanheid which are examined in Chapter III. These norms, enshrined in multilateral treaties adopted after World War II, redefine, as well as derive support from, the concept of 'crimes against humanity' as it was articulated in the Nuremburg Charter. Thus the significance of 'crimes against humanity' has been widened by reinterpretation and incorporation into certain multilateral human rights obligations. The prosecution and punishment of individuals by the Nuremburg Tribunal must have inspired the institutionalization of the system of grave breaches in the four Geneva Conventions of 1949. Another significant development was the extension of protection to civilian populations in times of armed conflict in the 1949 Geneva Conventions. Previously, instruments had covered only combatants, persons hors de combat, and prisoners of war. The work of the International Law Commission on the codification of the draft Code of Offenses against the Peace and Security of Mankind is perhaps of even wider significance. The draft Code against the Peace and Security of Mankind arose out of international resolve that the crimes defined in the Nuremburg Charter should not only be punishable in future, but also should be deterred by clear and precise elaboration in international legal instruments of general and prospective application. The more recent work of the International Law Commission on 'international crimes' in connection with the Draft Articles on State Responsibility attests to the continued importance and increased recognition attached to the concept of 'crimes against humanity' and to the enduring significance of the Nuremburg trials beyond the particular circumstances of World War II.

73

See Kelsen, Will the Judgment in the Nuremburg Trial Constitute a Precedent in International Law?, 1 Int'l L. Q. 153-171 (No. 2 Sum. 1947).

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6. THE GENEVA CONVENTION SYSTEM OF GRAVE BREACHES (i) SUBSTANTIAL ASPECTS Prior to the Second World War, rules of international humanitarian law extended protection to military personnel only rather than to civilians, except for the 1907 Hague Regulations which afford some indirect protection to civilians. In the classic laws of war, the assumption was that war involved armed forces only and that civilians would not be close to the actual hostilities. The atrocities of World War II, however, indicated the need for rules of humanitarian law to protect civilians. 74 The Fourth Geneva Convention of 1949 provides rules for the protection of civilians in war. Article 1 common to the 1949 Conventions obliges parties to 'undertake to respect and to ensure respect for the present Convention in all circumstances'. Article 2 provides that although 'one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.' This rule, which had already been introduced in the 1929 Geneva Conventions, is a reversal of the si omnes clause of the Hague Conventions; it ensures the continued application of each Geneva Convention to all contracting parties even if one of the belligerents is not a party to the Convention. 75

74

75

See Nahlik, A Brief Outline of International Humanitarian Law, Int'l Rev. Red Cross at 22 (July-Aug.1984). Furthermore, while general laws of war apply only to situations of international armed conflict, the Geneva Conventions may, under certain conditions, apply to armed conflicts that are 'not of an international character'. See Art. 3 common to the four 1949 Geneva Convs. See also Protocol II of 1977. Art.1(4) of Protocol I extends the scope of the 1949 Geneva Convs. to include " ... armed conflicts in which peoples are fighting against colonial domination and alien

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Contained in the 1949 Geneva Conventions are rules stipulating the punishment of individuals for serious human rights violations, amounting to a system of 'grave breaches'. Grave breaches are defined in the Geneva Conventions of 1949 as involving any of the following acts, if committed against persons or property protected by the Convention: 'wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. ' 76 Each party to the Conventions is obliged 'to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed' any grave breaches and shall search for, and bring such persons, before its own courts, regardless of the nationality of the offender. "It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. "77 A party to the Conventions is not permitted 'to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party' in respect of grave breaches. This designates the prohibition of grave breaches as non-waiverable. In light of virtual

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77

occupation and against racist regimes in the exercise of their right to selfdetermination ... " 'Grave breaches' also include compelling a protected person to serve in the forces of a hostile power, depriving a protected person of the guarantee to a fair and regular trial, unlawful confinement of hostages, unlawful deportation or transfer of civilians, and hostage-taking. See Arts. 50 of Geneva Conv. I, 51 of II, 130 of III, 147 of IV and Art. 85 of 1977 Protocol I. See generally, Sandoz, Implementing International Humanitarian Law, in International Dimensions of Humanitarian Law 259-282 (UNESCO ed. 1988), and Blishchenko, Responsibility in Breaches of International Humanitarian Law, ld., 283-296. Arts. 49 of Geneva Conv. I, 50 of II, 129 of III and 146 of IV. This embodies the principle 'Aut dedere, aut punire' ie. 'extradite or prosecute'.

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universal recognition of the Geneva Conventions, the prohibition of grave breaches probably forms part of jus co gens. Articles 105 to 107 of Geneva Convention III provide for the right to a fair trial, possibility of appeal and prompt notification of sentence to persons who have undergone trial for the commission of a grave breach. (ii) SIGNIFICANCE OF THE SYSTEM OF GRAVE BREACHES

The International Committee of the Red Cross (ICRC) was founded as a neutral and independent organization to develop and implement norms of international humanitarian law. The Geneva Conventions of 1949 represent a systematic attempt to apply humanitarian law prospectively to armed conflicts. Almost every State in the international community is a party to these Conventions. In classic international law, prosecution of war criminals was an ad hoc matter. The Nuremburg Tribunal, for example, was disbanded after it had served its purpose. The Geneva Convention system represents a change in the institutional context of international legal norms relating to individual responsibility. In modern international law, States increasingly undertake obligations requiring positive action in pursuit of common goals. The conviction that war, if it cannot be prevented, at least can be controlled in order to avoid unnecessary suffering, has resulted in increased systematization and structural elaboration in the laws of war. The Geneva Conventions of 1949 and the 1977 Additional Protocols indicate increasing international cooperation in humanitarian law. For example, Article 89 of 1977 Protocol I provides that "In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter." The Geneva Convention system promotes human rights protection through reliance on national jurisdictions to provide and enforce sanctions

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against individuals for grave breaches. Positive international law imposing individual responsibility for peace-time human rights violations also relies primarily on national organs for the enforcement of nationally formulated sanctions. The innovation of the grave breaches system represents growing intersection between the law of armed conflicts and human rights law. Blurring of the strict differentiation between war and peace, and the expansion of the scope of humanitarian law means that international human rights norms, formerly split between law applicable in war-time, and law applicable in peace-time, is becoming more sweeping in application as two general fields of international law come closer together. The broader implementation of human rights norms and of sanctions, finds more systematic and structured expression within this institutional framework than was possible in the system of classic international law. The rapprochement of human rights protection in war and human rights in protection peace brings in its train a growing acceptance of individual responsibility for serious violations of human rights as a general rule through universal recognition of the grave breaches system.

7. DEFENSES TO ALLEGATIONS OF INTERNATIONAL CRIMES To complete the examination and evaluation of positive international law on individual responsibility, it is necessary to turn to the main defenses available to the individual accused of having committed a violation. The scope of defenses indicate the degree to which individual responsibility in international law extends in principle. Assuming the criminal allegation is based on a valid legal rule, a defence to it may be successful on the grounds either that the rule does not apply to the type of act committed, or if it does apply generally, that the particular act falls within an exception. The defenses of superior

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orders, duress and mistake may be raised by the individual. Defenses based on the principles of military necessity and reprisal, available to States, are also considered, because the effect of a defence successfully maintained by the State may be to exempt individuals from criminal responsibility. (i) SUPERIOR ORDERS

Article 8 of the Nuremburg Charter provides that: The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determine that justice so requires. The Judgment of Nuremburg states that individual responsibility as expressed in Article 8 is generally recognized in the international community: The provisions of this Article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible. 78 However according to British and American Army manuals published at the beginning of the First World War, it was a complete defence for a soldier to plead that the acts he committed were in pursuance of an order

78

The Nuremburg Judgment (42 Brit.Ed.: 1946), 41 Am. J. Int'l L. 172-333 (Jan.1947).

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from a superior officer. 79 These manuals are evidence of an opinio juris supporting a conclusion directly opposite to that made by the Nuremburg Tribunal that provisions of the Charter 'are in conformity with the law of all nations'. In any case, the Nuremburg Charter is considered today as a correct statement of individual responsibility for war crimes. The rule barring the defence of obedience to a superior order to an allegation of war crime is necessary, and in the abstract, just. Ifsuperior orders were admissible as a defence against culpability, international legal rules would in effect be subordinated to national law since soldiers could claim that their violations of international criminal law were allowed by the higher authority of their own State. To be consistent, higher officials themselves could be exempted until those individuals acting as Heads of State could claim the defence of Act of State, ie. that their orders do not inculpate them since they were made within the sphere of State sovereignty and that they enjoy immunity from prosecution in any court exercising jurisdiction on the basis of international or foreign law. This reasoning would nullify the concept of international criminal law altogether and no limits on the jurisdiction of the State with regard to crimes committed in war-time could be maintained. In the extreme, no international law could exist at all if every State were to claim an unlimited right to behave purely according to self-interest on the international plane. Yet, it is precisely a degeneration into 'might makes

79

See Taylor, Nuremburg and Vietnam: An American Tragedy 141 (1971). U.S. Manuals restate the principle in Art. 8 of the Nuremburg Charter. See Paust, Superior Orders and Command Responsibility, in 3 International Criminal Law 73-88 (Bassiouni ed.1987). But see Keijzer, A Plea for the Defence ofSuperior Orders, 8 Israel Y.B. Hum. Rts. 78-103 (1978) advocating that the onus be shifted to the prosecution, proposes the following formula: 'Any military person who has committed an offence by complying with an order given to him by a superior will be excused unless any reasonable man of his position, age and education, faced with the same factual situation, knew or would have understood that the act was unlawful. '

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right' that needs to be avoided in the interests of international peace and security and world public order. The inadmissibility of the superior order as a complete defence involves difficult practical and moral problems however. International legal rules concerning weapons, legitimate targets and certain other obligations in war time must appear complicated, and perhaps of little importance to the well-trained and well-disciplined soldier. It is well known that the dominant modus operandi within military command structures is unquestioning obedience to superior orders. Military life is characterized by a very high degree of authoritarianism. In most countries, there are separate national laws, judicial and enforcement procedures that apply to members of the military, as opposed to civilians. Soldiers who refuse to follow orders face a very high likelihood of having to bear the brunt of military discipline, notwithstanding that performance of the orders would involve the commission of a war crime. The Nuremburg Charter's approach to superior orders is fundamentally just in view of the alternative of not prosecuting individuals for war crimes at all, yet it seems to impose an unrealistically high standard upon soldiers to pay heed to the sanctions of international criminal law when the more immediate imperative is to win, and to win by inflicting the most severe damage to the enemy. Furthermore, losing may involve a high risk of death and survival is perhaps the greatest imperative of all. It is therefore right that pursuant to Article 8 of the Charter, the Tribunal was authorized to consider a defence of superior orders in connection with mitigation of punishment, but not to exculpate the offender. A superior may be held responsible for omitting to stop the atrocities committed by soldiers in his command. This was the major issue in the Yamashita Case 80 where General Yamashita was convicted because he failed to take reasonable and appropriate measures to prevent the regular

80

re Yamashita 327 U.S.(1946)1, 40 Am. J. Int'l L. 432-480 (Apr.1946).

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commission of war crimes by troops under his command. 81 The holding of the United States Supreme Court in this case is controversial because it was doubtful whether General Yamashita had knowledge or control over his subordinates - in the circumstances, the Allies had destroyed Yamashita's means of communication with his troops. 82 (ii) DURESS

The true test, held the Nuremburg Tribunal, is 'whether moral choice was in fact possible'. Obviously it would be unjust to punish soldiers for acts they were compelled to do; culpability hinges not only on actus reus, but also on mens rea. Mens rea is negated where there is duress unless the duress accorded with, or merely reinforced the criminal intent of the accused. For example in re Krupp and Ten Others, 83 the Tribunal held that the defence of duress is not supportable where the accused had no intention or will contrary to those who supposedly exerted the compulsion. A more difficult question is what extent of compulsion is necessary to negate mens rea ? In Eisensatzgruppen, 84 the Tribunal held that the defence of duress could only be supported if the seriousness of the injury that would have been suffered from refusing to carry out the order to act was close to the seriousness of the act committed in obedience to the order. For example, it would not be a defence to plead duress on the

81

82

83 84

For further comment on criminal responsibility for omission to act, see ROling, Criminal Responsibility for Violations ofthe Laws ofWar, 12 Belgian Rev. Int'l L. 8 (1976). See generally Lyon, The Case ofGeneral Yamashita, in From Nuremburg to My Lai 139-149 (Baird ed.1972). In re Krupp and Others (U.S. Milit. Tribunal at Nuremburg), 15 Int'l L. Rep. 620 (1948). Eisensatzgruppen Trial (In re Ohlendorf and Others), 15 Int'l L. Rep. 656 (1948).

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grounds that it was necessary to kill innocent victims to avoid a short period of imprisonment. While a threat of imprisonment for failing to carry out orders to kill innocent civilians is not problematic, there exists a broad range of circumstances where soldiers may not be in fact capable of exercising moral choice given the context of war, and of having to face the risk of swift and severe military sanctions for failing to follow the order of a superior. A related problem is that in war crime trials, the prosecutors and judges are very likely to be hostile to the accused because the trials themselves are likely to be conducted by the victors, as in the Nuremburg Trials, which included no representatives from the defeated States. Pleas of duress are likely to fall on unsympathetic ears in the tribunal setting where it will be difficult to recreate the conditions causing duress in the minds of prosecutors and judges. It is true however, that the Nuremburg Charter did not bind the Tribunal to follow strict rules of evidence and the moral choice test set by the Tribunal considerably softened the thrust of Article 8 barring superior orders as a defence. (iii) MISTAKE Normally, 'ignorance of the law is no excuse' in defence to criminal prosecutions in national jurisdictions. With regard to war crimes, however, international tribunals have applied a less stringent standard simply for the reason that soldiers cannot reasonably be expected to know what rules of international law might apply to a particular set of circumstances given the complexity and uncertainty of international law. 85 If the accused is able to prove that he did not know the true state of things when he committed the alleged criminal act, and that his mistaken

85

See Dinstein, The Defense of 'Obedience to Superior Orders', in International Law 156-164 (1965).

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belief negates mens rea, then the accused should not be found criminally liable for the offenses. Mistake of fact is a defence recognized in international law and in the domestic law of most countries. (iv) MILITARY NECESSITY To what extent can the doctrine of military necessity 86 be invoked by the individual as a defence for having caused harm to civilians during war? In Geneva law, military necessity can only be invoked where there is express provision to that effect. Additional Protocol I of 1977 to the 1949 Geneva Conventions codifies customary rules relating to war and also sets some new rules. Under Article 48 of Protocol I, the basic rule governing the lawful conduct of war is that: "Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives". Articles 51, 57 and 85 codify the rules of proportionality. Article 54 attempts to strike a balance between military necessity and humanitarian considerations. (v) REPRISALS According to the Naulilaa Case:

87

A reprisal is an act of self-help by the injured State, responding - after an unsatisfied demand - to an act contrary to international law committed by the offending State. It has the effect of suspending momentarily, in relation to the States, the observance of the rule of

86

87

For a review of U.S. Supreme Ct. decisions relating to military necessity, see Levine, The Doctrine of Military Necessity in the Federal Courts, 89 Mil. L. Rev. 3-24 (1980). The Naulilaa Case (Port. v. Ger.), 2 R. Int'l Arb. Awards 1012 (1928).

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international law in question. It is limited by common human experiences and the rule of good faith, applicable in the relations between the two States. It would be illegal in the absence of a prior act contrary to international law justifying it. Its object is to effect reparation from the offending State for the offense or a return to legality by the avoidance of further offenses. The mixed Arbitral Tribunal went on to state that proportionality was also a limitation on the right of a State to take reprisal action and this formed an important element of the ratio decidendi. A State which is able to claim successfully that its action, otherwise unlawful, was taken as a reprisal incurs no responsibility. Accordingly, the reprisal would entail no responsibility for those individuals who actually carried out the act as long as the actions of the individuals were such as to be subsumed by the action of the State. Reprisals 88 are no longer lawful because Article 2(4) of the UN Charter enjoins members of the UN to refrain from the threat or use of force, and Article 51 authorizes States to exercise the inherent right of self-defence only 'if an armed attack occurs'. Reprisals are therefore prohibited on a plain reading of the UN Charter. If the Charter provisions are not clear enough, the 1970 General Assembly Declaration on Principles of International Law Concerning Friendly Relations 89 proclaims that: States have a duty to refrain from acts of reprisal involving the use of force. Resolution 2675(XXV) of the UN General Assembly prohibits reprisals against civilians in time of armed conflict. 90 Also, the 1974 UNGA Resolution on the Definition of II

II

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89

90

See Bristol, The Laws ofWar and Belligerent Reprisals Against Enemy Civilian Populations, 21 A.F.L. Rev. 397-431 (1979). G.A. Res. 2625 XXV, (Oct.25, 1970) adopted without a vote. Bierzanek, Reprisals as a Means ofEnforcing the Laws ofWaifare: the Old and the New Law, in The New Humanitarian Law of Armed Conflict 232-257 (Cassesse ed.1979).

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Aggression, 91 by Article 5(1) affirms that "No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. " Article 46 of 1949 Geneva Convention I provides that "Reprisals against the wounded, sick, personnel, buildings or equipment protected by the Convention are prohibited." Article 47 of 1949 Geneva Convention II does the same for wounded, sick and shipwrecked persons. Nevertheless, some States, such as the United States, United Kingdom and Israel have attempted to justify the use of reprisals as allowable on the ground that it comes within the exception of self-defence to the prohibition of force included in Article 51 of the UN Charter. Commentators diverge on the question as to whether reprisals are allowed at all in present day international law. 92 It has become clear that since 1945, States continue to use reprisals as a form of self-help. The Security Council has confined itself to making repeated condemnation of the use of reprisals, 93 but has done little else. It is doubtful that reprisals may be pleaded as a valid defence to the charge of war crime or crime against peace and therefore the individual is not likely to benefit by raising it in defence. D'Amato, Goulds and Woods note94 that the Nuremburg Tribunal heard few defenses based on reprisal. They attribute this to the decision on the part of the Allies to avoid embarrassment by not prosecuting individuals from the Axis side who they feared might legitimately raise

91

92

93

94

G.A. Res. 3314 XXIX; 69 Am. J. Int'l.L. 480 (1975). See Bierzanek, Reprisals as a Means ofEnforcing the Laws ofWaifare: the Old and the New Law, in The New Humanitarian Law of Armed Conflict 232-257 (Cassesse ed.1979) and Taulbee and Anderson, Reprisal Redux, 16 Case W. Res. J. Int'l L. 309 (1984). See e.g. U.N.S.C.O.R. Res. 411 (June 30, 1977). D' Amato, Goulds & Wood, War Crimes and Vietnam: The Nuremburg Defense and the Military Service Resister, 57 Calif. L. Rev. 1055, 1098 (1969).

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reprisal or tu quoque95 in defence. (vi) CONVENTION ON THE NON-APPLICABILITY OF STATUTORY LIMITATIONS TO WAR CRIMES AND CRIMES AGAINST HUMANITY, 1968 96 In many national jurisdictions there exist time limitations on the prosecution and punishment for criminal offenses. Such limitations serve the national interest by encouraging law enforcement officials to pursue prosecutions within a reasonable time while evidence remains fresh. Also important from the adversarial point of view is that the psychological and financial burden on those suspected or accused of having committed a crime ought not to be unfair or unreasonable as expressed in the maxim 'justice delayed is justice denied'. It is a principle of justice that justice ought to be done and seen to be done, and that criminal suspects know quickly what is their legal status in society. On the other hand, it is in the public interest that offenders not escape prosecution and punishment altogether for very serious crimes merely by benefitting from a technicality. Where massive violations of human rights have been committed, it would appear that the public interest to prosecute and punish outweighs the right of the individual to be spared the psychological uncertainty of being susceptible to prosecution tomorrow for acts committed perhaps half a life-time ago. On November 11, 1970, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity entered into force, but by September 1986, it had received only twentyeight ratifications. By Article 1 of the Convention:

95

96

This is the defence that what would otherwise constitute a war crime is permissible on the ground that the other belligerent had committed the prohibited act first. 8 I.L.M. 68 (1969).

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Chapter II No statutory limitation shall apply to the following crimes irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Niirnberg, of 8 August 1945 and confirmed by resolutions 3(1) of 13 February 1946 and 95(I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims; (b) Crimes against humanity whether committed ih time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Niirnberg, of 8 August 1945 and confirmed by resolutions 3(1) of 13 February 1946 and 95(1) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apanheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

Article III declares that States Parties 'undertake to adopt . . . any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes' enumerated in the Convention. The Convention also obliges States to abolish all statutory limitations already in existence. According to Miller, 97 it is highly unlikely that very many States will ratify the Convention. On the one hand, the Convention seeks to improve the enforcement of human rights. On the other hand, it offends certain basic principles of justice since it would extend jurisdiction over crimes irrespective of when they were committed. The situation has remain unchanged from the time Miller wrote in 1971 that no western State has signed or ratified the Convention.

97

Miller, The Convention on the Non-Applicability ofStatutory Limitations to War Crimes and Crimes Against Humanity, 65 Am. J. Int'l L. 476, 500, 501 (1971).

CHAPI'ERID INDIVIDUAL RESPONSIBILITY IN INTERNATIONAL HUMAN RIGHTS LAW

1. GENOCIDE (i) BACKGROUND Prior to adoption of the Genocide Convention 1 in 1948, international law did not specifically prohibit genocide in peace-time. 2 However, some acts of genocide committed during war were already covered by norms against war crimes and crimes against humanity. For example, the modern definition of genocide prohibits murder and massacre of innocent civilians. These acts fall within the category of 'war crimes'. Norms prohibiting war crimes and crimes against humanity, however, apply only to situations of armed conflict, not to peace-time situations.

1

2

Convention on the Prevention and Punishment of the Crime of Genocide, adopted unanimously Dec. 9, 1948; entered into force Jan. 12, 1951, 78 U.N.T.S. 277. The term 'genocide' was invented by Raphael Lemkin, a private individual whose family and relatives were among victims of the Holocaust. Lemkin lobbied State representatives at the U.N. on his own behalf to initiate and support adoption of the Genocide Convention.

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Acts of genocide committed in peace-time fall neither within the category of 'war crimes' nor 'crimes against humanity' (to the extent 'crimes against humanity' were interpreted by the Nuremburg Tribunal). As discussed in Chapter II, the term 'laws of humanity' was first used by European Powers to condemn Turkey for certain genocidal massacres and to justify humanitarian intervention by these European States, but humanitarian intervention, employed to protect Christian minorities, was a political solution unsupported by any norm of international law. The concept of 'crimes against humanity' urged by the 1919 Commission on Responsibilities seems sufficiently broad as to encompass acts of genocide committed in peace-time. However, this concept was not formulated in very precise terms and it was strongly opposed by the US and supported only faintly by other States. It failed to gain general acceptance and never crystallized into a norm of internationallaw. 3 As for 'crimes against humanity' in the Nuremburg Charter, these were defined to cover acts committed only in connection with the Second World War. 4 Although the Nuremburg Charter, specific and temporary in application, does not in itself constitute a true precedent in international law, 5 its definition of 'crimes against humanity' overtook the pre-Nuremburg concept after having received overwhelming support by the international community and after having been affirmed by subsequent UN codification. Thus 'crimes against humanity' came to be interpreted as applicable only to situations of armed conflict. Moreover, prior to the UN Charter most human rights violations were regarded as falling within the exclusive jurisdictional domain of the State where the violation occurred, rather than within the sphere of international law. The upshot of the narrow application of laws of war, and lacunae in international human rights law, is that prior to the Genocide Convention,

3 4

5

See supra ch. II (4). See discussion of the Protocol of Oct. 6, 1945, signed in Berlin, supra ch. II (4). See supra ch. II (2) (iii).

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certain atrocious human rights violations, such as genocide, were not prohibited in international law on account of their having been committed during peace-time. (ii) SUBSTANTIAL AND PROCEDURAL ASPECTS OF

THE UN GENOCIDE CONVENTION The Genocide Convention was adopted to prevent recurrence of the horrors of extermination such as occurred during World War II with the Nazi Government's Final Solution. 6 Article I of the Convention affirms that 'genocide, whether committed in time of peace or in time of war, is a crime under international law' which ratifying States undertake to prevent and punish. The Convention defines genocide, by Article II, as comprising any of the following acts with intent to destroy, in whole or in part, a national, ethnical/ racial, or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. 8

6

7

8

See generally Bassiouni, Introduction to the Genocide Convention, in 1 International Criminal Law: Crimes 281-297 (Bassiouni ed.1986) and Beres, Genocide and Genocide-Like Crimes, /d., 271-279. The word 'ethnical' as defined in the Concise Oxford Dictionary 1982 pertains to the science of human races and their interrelations, rather than to races themselves. It seems the drafters of the Genocide Convention should have employed the adjective 'ethnic' to modify 'group', rather than 'ethnical'. It was argued during the drafting of the Convention that the definition of genocide should illustrate rather than enumerate acts of genocide so that whatever particular means to which perpetrators might resort would be covered by the definition. An enumerative approach was adopted on the ground that since

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The words 'killing', 'serious bodily or mental harm' and 'inflicting on the group conditions of life calculated to bring about its physical destruction' emphasize that it is actual or attempted destruction of the physical existence of the group or its members, rather than measures designed to alter or influence its economic, social or cultural character (ie. assimilation sometimes termed 'cultural genocide') that is prohibited by the Genocide Convention. Article III of the Convention lists genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity to commit genocide, as punishable acts. It is not a particular number of persons killed, or even the actus reus of killing which is essential to the crime of genocide. The feature most distinguishing genocide from other types of mental or bodily harm is the presence of an intention to destroy the group as such. Major difficulties arise in trying to determine what constitutes a national, ethnic, racial, or religious group. It is not clear what the terms 'nation', 'race', 'ethnicity' or 'religious group' mean in international law. Attribution of individuals to particular racial or ethnic groups on an objective basis is difficult, if not impossible. Clear-cut racial categories may be arbitrary classifications of convenience, rather than scientifically based hypotheses; causes of racial characteristics in human gene pools may be various continua which do not fit into neat categories. Furthermore, legal recognition of racial categories can cut both ways: it may be used to protect minority members; but it may also inadvertently bolster the arguments of those who would advocate policies of racial segregation on the ground that persons should be treated according to 'natural' racial differences.

genocide was a new concept, it should be unequivocally defined to prevent wide variation when formulated in national legislation, and to meet the defence of nulla poena sine lege. See the U.N. Report on the Study of the Question of the Prevention and Punishment of Genocide E/CN.4/Sub.2/416,4 July 1978.

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Article IV of the Convention provides: Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals. This provision clearly

stipulates a mandatory obligation to punish

criminals, as signified by the word 'shall'. The Genocide Convention stipulates that official position in government or other organization affords no defence against individual responsibility. By Article V, Contracting Parties " ... undertake to enact ... necessary legislation to give .effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III." The word 'shall' in Article V imports a mandatory obligation to prosecute offenders. Article VI provides: Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. At present no such international penal tribunal exists. Primary responsibility to prosecute offenders rests with the State where the genocide was committed. The obvious difficulty is that where a high government official is responsible for having committed genocide, but remains in control of organs authorized to prosecute and punish Nonetheless, offenders, there is little prospect for enforcement. individual responsibility may act as a deterrent for an official in power; even the most mighty tyrant may fall victim to political insurrection and the recriminations that may follow. When punishment of a country's leaders is made possible from an overthrow of the government, justice may be swift and rough, as exemplified in Romania with the execution

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of President Nicolae Ceausescu following a coup d'etat in December

1989. By Article VII '[g]enocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition.' A rule found in most extradition treaties is that suspects shall be extradited to stand trial in the country with jurisdiction to try the offender except where the trial would be politically motivated or the suspect would not receive adequate procedural justice for other reasons. Politically motivated prosecutions negate the very purpose of extradition - to ensure serious criminals are not allowed to flee or escape fair and impartial justice. Article VII closes political offence exceptions in extradition arrangements for genocide and genocide-related acts. In other words, the Convention disallows defenses to rebut the State's obligation to extradite, made on grounds that a genocide trial would be tainted by political motivations. No express duty to extradite suspects for trial to the country where the crime was committed exists in the Convention. The duty to prosecute offenders rests solely with those Contracting Parties the territory in which the prohibited act was committed. Customarily, extradition is a matter of bilateral cooperation between States. An offender who commits genocide in one State and subsequently flees to another State is not covered by provisions of the Convention in cases where the State to which the offender has fled makes no effort to prosecute or extradite. In effect, the jurisdictional basis for prosecution under the Convention is entirely municipal, rather than universal. Human rights protection in war-time arose from the self-interest of States to prevent unnecessary suffering. An effective way to prevent unnecessary suffering during hostilities is for each belligerent to protect prisoners of war, persons hors de combat and civilians on a reciprocal basis with the other belligerents. A government is wary to torture or mistreat its prisoners of war in the knowledge that the enemy could do likewise.

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However no such motivation exists for human rights guaranteed in peace-time, as there is no reciprocal relationship of this kind between beneficiaries of human rights and the States under an obligation to respect those rights. International human rights protection in peace-time is based on recognition that human beings, regardless of the State in which they live, have certain basic and fundamental human rights and freedoms simply by virtue of being human. The human rights movement at the international level is a product of increasing multilateral cooperation among States, rather than self-interest based on reciprocity. This motivation is explicitly recognized in the preamble to the Genocide Convention which refers to the conviction of the parties to the Convention that 'international cooperation is required' to 'liberate mankind from such an odious scourge'. Article VIII provides that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide ... " By Article IX, "Disputes between the Contracting Parties relating to the interpretation, application, or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." The International Court of Justice has delivered an advisory opinion on the effect of reservations and objections to reservations made to the Genocide Convention. 9 The substantive provisions of the Convention indicate recognition on

9

Reservations to the Convention on Genocide Case (Adv. Op.), 195li.C.J. Rep. 15. The Court held that reservations could be made to the Convention although it contains no reservation clause, that the 'object and purpose of the Convention ... limit both the freedom of making reservations and that of objecting to them' and that it is the duty of each State to decide for itself whether a particular State which entered a certain reservation remained a party to the Convention.

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the part of the international community that certain kinds of human rights violations are so grave as to warrant a special system of responsibility within the corpus of general international law. It is significant that the Genocide Convention emphasizes an institutional framework of enforcement by which international legal norms against genocide may be implemented, for this is a crucial step toward a systematic approach to individual responsibility at the international level. (iii) PRESENT LEGAL STATUS OF INTERNATIONAL NORMS

ON GENOCIDE As in the Geneva Conventions system of grave breaches discussed in Chapter II above, the obligation to enforce legal sanctions rests with States, rather than with any international organ. Enforcement is potentially of more immediate effect therefore, since domestic law enforcement mechanisms are almost always more advanced and more refined than international organs which function perforce in the rarified atmosphere of decentralized international relations. Generally speaking, should a State fail to incorporate a treaty into its domestic law, none of the enforcement provisions take effect in that jurisdiction unless the domestic law of that State provides that international agreements automatically form part of domestic law or are self-executing. The Convention is not an ordinary treaty, however. The Genocide Convention is a multilateral treaty importing special kinds of obligations. It was unanimously adopted and widely ratified indicating that most States have consented to be bound by it. 10 In the Reservations to the Convention on Genocide Case, the ICJ observed that:

10

See Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 Brit. Y.B. Int'l L. 67-92 (1976-77) and Coccia, Reservations to Multilateral Treaties on Human Rights, 15 Calif. W. Int'l L. J. 1-51 (Win. 1985).

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The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' . . . involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96(1) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention). 11 Evidence of opinio juris and general State practice supports the conclusion that the rule against genocide is part of international customary law, and perhaps of jus co gens. The Barcelona Traction Case (Second Phase/ 2 refers to genocide as an obligation erga omnes in which all States have a legal interest. Although the Barcelona Traction Case does not explicitly state that genocide is part of jus cogens, it appears to be well recognized that the norm against genocide is a peremptory norm of international law. The prohibition of genocide set by the Genocide Convention therefore does not fall within the confines of ordinary treaty obligations. Rather, it applies to every international person regardless of whether it is a party to the Convention or not. Heightened responsibility for breach of the obligation not to commit genocide seems to be gaining increasing recognition from the international community; genocide is considered as coming within the special class of 'international crimes' . 13 11

12 13

Reservations to the Convention on Genocide Case (Adv. Op.), 19511.C.J. Rep. 15. at 23. Barcelona Traction Case (Belgium v. Spain), 1970 I.C.J. Rep. 3 at 32. See ch. V for further discussion of the developing law of international

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2. APARTHEID (i) BACKGROUND an Afrikaans 14 word meaning apartness or separation, was coined in 1944 by South African Prime Minister Daniel Malan, to denote South African policies of racial segregation between whites and various nonwhite racial groups. Apanheid became official policy in South Africa with the ascendancy of the Nationalist Party in 1948 general elections. 15 The essence of the apanheid system is the enforcement of laws by the white minority government against the nonwhite majority on a racially discriminatory basis in all spheres of legal, economic, social and political activity. 16 In South Africa, the administration of apanheid has involved ruthless suppression of political dissent, massive violations of human rights and fundamental freedoms as well as murder of innocent civilians. 17 'Apanheid',

14

15

16

17

responsibility and the work of the International Law Commission on 'international crimes'. Afrikaaners are South Africans of Dutch origin. See Asmal, The South African Constitution: Racism in the Basic Law of Apartheid lnt'l Rev. Contemp. L. 65-85 (No.2, 1985), The Langa Shootings 8(3) Hum. Rts. Q. 487-516 (Aug. 1986), Butcher, Legal Consequences for States of the Illegality of Apartheid, /d., 404-442, Embassy of the U.K., Statutory Racial Discrimination in South Africa, 126 Foreign Pol'y Doc. 1985. Apartheid in South Africa is similar to the segregationist system that was practiced in the United States for a century after slavery was abolished. In the U.S., racial segregation received Supreme Court blessing in the 'separate but equal' doctrine of Plessy v. Ferguson 163 U.S. 537 (1896) until it was held in Brown v. Board of Education 347 U.S. 483 (1954) that 'separate but equal' in the field of public education is inherently unequal. Brown v. Education paved the way for desegregation in the U.S. For example, the unprovoked shooting to death of 69 blacks, and wounding of 180, by South African police on March 21, 1960 at Sharpeville. See Mandela, Statement of the Deputy President of the African National Congress at the InternationalLabour Conference, Geneva, June 8, /990., ILO Washington Focus

Individual Responsibility in International Human Rights Law

15

A draft convention on the crime of apartheid was submitted to the UN General Assembly on November 5, 1971 by Guinea and the USSR. The UNGA then requested the Secretary-General to forward the draft convention to ECOSOC and the Commission on Human Rights to be prepared for further consideration. (ii) SUBSTANTIAL AND PROCEDURAL ASPECTS OF

THE UN APARTHEID CONVENTION By Resolution 3068 (XXVIII) of November 30, 1973, the UNGA adopted and opened for signature the International Convention on the Suppression and Punishment of the Crime of Apartheid. 18 Article 1 provides: The State Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies of racial segregation and discrimination, as defined in Article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security. Article II provides a lengthy list of inhuman acts to which the term 'crime of apartheid' applies, including murder, infliction of serious mental or bodily harm, torture, cruel, inhuman or degrading punishment, arbitrary arrest, illegal imprisonment, deliberate imposition of living conditions calculated to bring about physical destruction of the group in whole or in part, any measures calculated to prevent a racial group or groups from participation in the political, social, economic, and cultural

18

Special Edition. 13 I.L.M. 50 (1974), entered into force July 18, 1976, ratified by 84 States as of September 1986.

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life of the country etc., any measures designed to divide the population along racial lines, forced labour, and persecution of persons or organizations because they oppose apanheid. Although the Apanheid Convention does not mention the State of South Africa in particular, it is aimed chiefly at the criminalization of South African policies of racial segregation and discrimination; it is these policies which are known uniquely as apanheid policies. Nevertheless, the Convention is drafted in general terms. It is therefore applicable to situations other than apanheid which fall within the scope of the Convention. Numerous UN resolutions have condemned apanheid, but the Apanheid Convention is the first instrument setting out concrete provisions for the prosecution and punishment of those responsible for apanheid as a crime under international law. Article III provides that international criminal responsibility shall apply to individuals, members of organizations, institutions and State representatives whenever they commit, participate in, directly incite, abet, encourage or cooperate in, the commission of the crime of apanheid. Article IV obliges States Parties to undertake to adopt: any legislative or other measures necessary to suppress as well as to prevent any encouragement of the crime of apanheid and similar segregationist policies or their manifestations and to punish persons guilty of that crime [and] any legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in Article II of the present Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons. Article V states that accused persons may be tried by a competent tribunal of any State Party which may acquire jurisdiction over the accused or by an international tribunal as may have jurisdiction.

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Presently, no international tribunal exists either of a general penal jurisdiction, or for the specific purpose of prosecuting perpetrators of apanheid. Like the Genocide Convention and the 1949 Geneva Conventions, the Apanheid Convention relies on national courts for implementation, but the Apanheid Convention goes further. Whereas Article VI of the Genocide Convention obliges parties to prosecute the offender if the act was committed on its territory, or by an international tribunal as may exist, the Apanheid Convention foresees a universal jurisdiction over criminal suspects on the basis of custody over the offender. By Article XI, no political offence exception contained in extradition arrangements is of any force or effect. 19 Besides signifying increased recognition of apanheid as an international crime, the Apanheid Convention also indicates that there exists in the international community increased recognition in favour of an expanded concept of 'crimes against humanity', as a norm prohibiting certain acts regardless whether committed during war or peace. Defining apanheid as a crime against humanity augments the concept of 'crimes against humanity' as a norm the relevance of which continues to extend beyond the Nuremburg proceedings. There have been other indications that the pre-Nuremburg norm of crimes against humanity may be gaining ground. The Draft Code of Offenses against the Peace and Security of Mankind for example, would expand the definition of 'crimes against humanity' to cover some acts not previously considered within the classic definition. The Apanheid Convention, like the Nuremburg Charter, imposes individual responsibility in too broad a manner. Individuals may be held criminally liable if they 'participate in' the crime of apanheid. Because the apanheid system permeates almost all facets of the economic, legal

19

See Clark, The Crime of Apartheid, in 1 International Criminal Law 299-317 (Bassiouni ed. 1986) for a thorough analysis of the provisions of the Apartheid Convention.

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and political structures of South Africa, it would be difficult to differentiate those who actively support apartheid from those who merely Although a broad acquiesce, or even passively resist apartheid. responsibility provision is perhaps the most feasible way to impose responsibility for human rights violations where the entire politico-legal system of a country has been used to commit large-scale human rights violations, an overly broad rule invites arbitrariness because prosecutors are left too wide a discretion in selecting offenders for prosecution. In practice however, prosecutions would probably be confined to policymakers and members of government responsible for the perpetration and enforcement of particular inhuman acts, similar to the approach taken in the Nuremburg Trials. Article X of the Convention empowers the UN Commission on Human Rights to prepare 'a list of individuals, organizations, institutions and representatives of States which are alleged to be responsible for the crimes enumerated' by the Convention. Similar to the system of grave breaches and Genocide Convention, the Apartheid Convention establishes criminal responsibility in context of the institutional system of international cooperation. Article VI obliges States to co-operate in the implementation of decisions adopted by Parties other competent organs of the United Nations with a view to achieving the purposes of the Convention. Under Article VIII, any State Party may call upon any competent organ of the UN to take such action under the UN Charter as it considers appropriate for the prevention and Under Articles IX and X, the UN suppression of apartheid. II •••

II

II •••

II

Commission on Human Rights may consider periodic reports submitted by States Parties on legislative, judicial, administrative, or other measures adopted to give effect to provisions to the Convention. Article XII provides that disputes between States Parties arising out of the interpretation, application or implementation of the Convention shall, at the request of the parties to the dispute, be brought before the

Individual Responsibility in International Human Rights Law

19

International Court of Justice. 20 (iii) PRESENT LEGAL STATUS OF INTERNATIONAL NORMS ON

APARTHEID Apartheid is considered by a significant part of the international community as a serious affront to universally accepted standards of human rights. The Apartheid Convention creates individual responsibility for the acts listed as offenses. Support for the Convention indicates that apartheid is considered serious enough as to warrant a special standard of international condemnation in order to punish and deter its commission. Individual criminal responsibility is recognized as an appropriate method by which to suppress human right violations of this gravity. The Convention has been signed by slightly more than half the membership of the United Nations, but this portion does not include the influential States of western Europe or North America. Several States which have repeatedly condemned apartheid policies have not signed the Apartheid Convention. It is therefore unclear, and even doubtful, whether individual responsibility for acts prohibited by the Apartheid Convention is part of international customary law. Criminal responsibility for the commission of apartheid is expressed under Article 19(3)(c) of the ILC Draft Articles on State Responsibility, but this relates to States and not to individuals. It would be unlikely that individuals responsible for the commission of apartheid would be exposed to penal sanctions unless there were a collapse of the apartheid regime. At that time, it would seem to be pointless to restrict the imposition of criminal responsibility to the State. 21

20

This is more stringent than Art. IX of the Genocide Convention which provides that any party, rather than all parties, to the dispute may refer the dispute to the

I.C.J. 21

See Davis, Post-Apartheid South Africa: What Future for a Legal System?, Acta

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Chapter III 3. TORTURE (i) BACKGROUND

Authorized use of torture by government organs is an ancient phenomenon still widely practised today. Torture was even admitted by many Governments until the nineteenth century to be an official method of interrogation. As it became more widely recognized that obtaining confessions and information under duress is unreliable for the adduction of probative evidence, and that torture violates fundamental human rights to physical and mental integrity, States gradually abolished torture as an officially sanctioned practice. Nevertheless, torture continues to be one of the most pressing human rights problems of modern times. While torture is no longer admitted to form part of official policy, it continues to be perpetrated systematically in many parts of the world. As documented in numerous reports of the UN, and various nongovernmental organizations most notably those of Amnesty International, there remains an alarming discrepancy between official denunciations of torture and its frequency in fact. 22 Human rights as a coherent and systematic body of international law has developed only since 1945. In the course of this development, torture has attracted special concern as a flagrant human rights violation. 23 In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, which states in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the International Covenant on Civil and

22 23

Juridica 220-236 (1987). See e.g. Amnesty International, Report 1984 (1984). See Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Report by the Spec. Rapp., Mr. P. Kooijmans, E/CN.4/1986/15,19 Feb. 1986. para. 2.

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Political Rights, which was adopted in 1966 and entered into force in 1976, echoes Article 5 of the UN Declaration of Human Rights, and adds "In particular, no one shall be subjected without his free consent to medical or scientific experimentation." Article 10(1) of the Covenant also provides that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." Article 3 common to the Geneva Conventions of 1949 prohibits parties from committing at any time or in any place acts of 'violence to life and person, ... mutilation, cruel treatment, and torture' or 'outrages against human dignity, in particular humiliating and degrading treatment'. The main human rights instruments of regional international organizations also contain guarantees of the right to be free from torture. The American Declaration of the Rights and Duties of Man, provides by Article XXV, that "Every individual who has been deprived of his liberty has the right . . . to humane treatment during the time he is in custody." The American Convention on Human Rights provides that "No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. "24 The African Charter on Human and Peoples' Rights, by Article 5 provides that "... All forms of exploitation and degradation of man, particularly ... torture, cruel or inhuman or degrading punishment and treatment shall be prohibited." Article 3 of the European Convention on Human Rights provides that "No one shall be subjected to torture or to inhuman or degrading treatment Or punishment. "25

24

Art. 5(2).

25

See the European Conv. on Hum. Rts. cases of Greece v. U.K. Appl. 176/56

of May 7, 1956, Den., Nor., Swed. and Neth. v. Greece Appl. 3321, 3322, 3323, 3344/67 of Sept. 1967 (Y.B. 1969 [1972]), Ireland v. U.K. Appl.

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A significant development concerning implementation of international norms against torture is the recent adoption of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 26 This Convention sets up an extensive non-judicial supervisory system to prevent torture as prohibited by Article 3 of the European Convention on Human Rights. Article 1 establishes a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which is authorized by each party to the Convention 27 to make visits to any place of detention within the State's jurisdiction. Parties to the Convention are obliged to provide to a visiting Committee access to its territory, right to travel without restriction, full information on the places where persons deprived of their liberty are being held, full access to places of detention or other places where persons are deprived of their liberty, and other information necessary for the Committee to carry out its task. 28 The Committee may take certain follow-up actions to report and make public statements on the matter in question. On December 9, 1975, the UN General Assembly adopted by consensus the Declaration on the Protection of All Persons from Being Subjected to Torture, Cruel, Inhuman or Degrading Treatment or Punishment. The UN Commission on Human Rights appointed a Special

26 27 28

5310171, 5451172 (Y.B. 15 [1974]), Cyprus v. Tur. Appl.6780174, 6950175 of Sept. 19, 1974 and March 2, 1975 (Y.B.18 [1975]) and Den., Nor., Swed., Neth., and France v. Turkey Appl. 9940-9944/82 of Sept. 15, 1982. See Doswald-Beck, What Does the Prohibition of 'Torture, Inhuman or Degrading Punishment' Mean? The Interpretation of the European Commission and Court of Human Rights, 25 Neth. Int'l L. Rev. 24-50 (1978). Done at Strasbourg, Nov. 26, 1987, 27 I.L.M. 1152-9 (1988). Art. 2. Art. 8. By Art. 9 parties may make representations to the Committee against a visit 'on grounds of national defence, public safety, serious disorder in places where persons are deprived of their liberty, the medical condition of a person or that an urgent interrogation relating to a serious crime is in progress.'

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Rapporteur on questions relating to torture on 22 May 1985, with a mandate to "... seek and receive credible and reliable information from Governments, as well as specialized agencies, intergovernmental organizations, and non-governmental organizations ... " and to 'respond effectively' to information relating to torture. On December 10, 1984 the UNGA adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment after seven years of negotiations. 29 The UN Torture Convention contains provisions extending responsibility for torture to individuals and establishes supervisory mechanisms. (ii) SUBSTANTIAL AND PROCEDURAL ASPECTS OF

THE UN TORTURE CONVENTION Article 1 defines 'torture' as: ... any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Under Article 16, each State Party shall undertake to prevent in its territory 'other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1' where such acts are committed by public officials or other persons acting in an

29

Adopted by consensus by the G.A. Dec. 10, 1984, opened for signature Feb. 4, 1985, entered into force June 26, 1987.

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official capacity. Individual responsibility is imposed by Article 2(3) which states: "An order from a superior officer or a public authority may not be invoked as a justification of torture." This wording is similar to Article 8 of the London Charter establishing the Nuremburg Tribunal which stipulates that the 'fact that the Defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility'. State Parties to the Convention are obliged, under Article 2, to take 'effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.' No exceptional circumstances whatsoever, not even a state of war, internal political instability, or other public emergeney, are permitted to be used as justification for torture. 30 The Torture Convention obliges States Parties to ensure that all acts of torture are offenses under its criminal law and that such offenses are punishable by appropriate penalties which take into account the seriousness of the crime. States Parties are obliged in certain circumstances either to prosecute the alleged torturer, or to extradite him or her. Article 7 obliges each State Party, where it does not extradite the alleged offender in one of the cases contemplated in Article 5, to submit the case to competent authorities for prosecution. Article 5 obliges each party to the Convention to ta!~e such measures as may be necessary to establish its jurisdiction over acts of torture when: committed on the territory of the State Party; or on board a ship or aircraft registered in that State; or when the alleged offender is present within its territory and it does not extradite him or her pursuant to Article 8 to any of the States mentioned in paragraph 8(1). Article 8 provides that torture is deemed to be

30

Art. 2(2). In most international human rights instruments, derogation from certain human rights obligations is permitted in exceptional circumstances. See e.g., Arts. 4 of the Int'l Conv. Civ. Pol. Rts., 15(1) of the Eur. Conv. Hum. Rts., and 27 of the Am. Conv. Hum. Rts, where the right not to be tortured is guaranteed as a non-derogable right.

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included as an extraditable offence in any existing extradition treaties between States Parties and obliges States Parties to include torture as an extraditable offence in future extradition treaties. If there is no extradition treaty in force between States Parties to the Convention, Article 8(2) provides that the State Party may consider the Torture Convention as a legal basis for extradition. Parties to the Convention may recognize the competence of the Committee against Torture to receive inter-state complaints where both States are parties to the Convention. A procedure is established for consideration of the complaint by the Committee. 31 Under Article 22, States- Parties may make a declaration recognizing the competence of the Committee to receive communications from, or on behalf of, those individuals subject to its jurisdiction claiming to be victims of a violation of the obligations specified in the Convention. (iii) PRESENT LEGAL STATUS OF INTERNATIONAL NORMS ON

TORTURE With the exception of the UN Torture Convention, international instruments prohibiting torture bind the State only, and not the individual responsible for ordering or carrying out torture. Guarantees against torture in international conventions are cast in almost identical terms indicating that the content of legal norms against torture are becoming well recognized. Most international instruments provide expressly that the rule against torture is non-derogable. From an analysis of information received from governments, intergovernmental organizations, and non-governmental organizations in consultative status with the UN, the UN Special Rapporteur on Torture concluded that where systematic perpetration of torture is still officially part of State practice, there is usually an absence of democracy and the

31

Art. 21.

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rule of law. 32 Guarantees against torture, cruel and other inhuman treatment are found in the constitutions and legislation of most countries of the world. 33 It seems that despite the incorporation of guarantees against torture in national law however, torture continues to be a widespread and systematic phenomenon and is frighteningly common in many parts of the world. 34 In such cases, there would seem to be little likelihood that perpetrators of torture would be punished by government organs especially where torture is authorized secretly, or officially ignored. In summary, the UN Torture Convention represents a significant step towards general international recognition that rules extending international responsibility to individuals are required to suppress torture. Freedom from torture is undoubtedly well recognized as a human right today at a formal level; it finds expression in several widely ratified international legal instruments. 35 Tragically however, torture is widely practiced in many countries. Until States bring their actual practice into conformity with the obligations prohibiting torture they have formally recognized, it cannot be realistically stated that the norm against torture has become firmly established as a rule of general international law.

32

33 34 35

Report by the Spec. Rapp., Mr. P. Kooijmans, E/CN.4/1986/15,19 Feb. 1986. paras. 97-8. For specific legal measures enacted in national laws, see /d. paras. 69-94. See annual reports of Amnesty International. The ICJ opinion in the Barcelona Traction Case (Belgium v. Spain), 1970 I.C.J. Rep., 3 para. 34, recognized that the basic human rights of all persons constitute obligations erg a omnes. Torture appears to fit easily within the category of basic human rights obligations erg a omnes, especially where it is perpetrated on a systematic and wide-spread basis. Dicta of the ICJ as well as continuing I.L. C. efforts at codification of the law of international responsibility indicate that the norm against torture may eventually become a peremptory norm of international law. See infra ch. V for further discussion of obligationserga omnes,jus cogens and the codification of 'international crimes'.

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4. SLAVERY (i) BACKGROUND International cooperation to eliminate slavery dates back to 1815 when the Major Powers condemned the slave trade and endeavoured to outlaw slavery on moral grounds at the Congress of Vienna. The 1822 Declaration of Verona states that slave-trading is contrary to principles of justice and humanity and calls upon States to prohibit slavery. Treaties concluded in 1831 and 1833 between Great Britain and France, as well as the 1841 Treaty of London signed by Great Britain, Austria, France, Prussia and Russia, and the 1862 Treaty of Washington, promote international cooperation to suppress slave-trading and provide for the mutual right of visit, search and capture of ships suspected of violating the slave-trading prohibition. The Berlin Conference General Act of 1885 and the General Act of the 1890 Brussels Conference also outlaw slave-trading and slavery. The right not to be subjected to slavery thus antedates most other human rights guarantees in international law by almost a century and a half. 36 The International Slavery Convention of 1926, 37 one of the earliest multilateral human rights treaties, defines slavery as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. 1138 Article 2 obliges States parties to prevent and suppress the slave trade and to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms. State parties are obliged by Article 3 to undertake II •••

II...

II

36

37

38

II •••

See Nanda and Bassiouni, The Crimes of Slavery and Slave Trade, in 1 International Criminal Law 325-361 (Bassiouni ed. 1986). Adopted by the League of Nations Sept. 25, 1926, entered into force, Mar. 9, 1927, amended by a Protocol ofDec.7, 1953 in New York. Convention entered into force as amended, on July 7, 1955. Art. 1(1).

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to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The Convention is not overly ambitious in its aims. The High Contracting Parties are obliged to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. 1139 Thus forced labour itself is not completely outlawed. The Convention tries to ensure that compulsory or forced labour is only exacted under narrowly specified conditions and does not degenerate into slavery. Thirty years after its adoption, the 1926 Slavery Convention was augmented by the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. 40 The Supplementary Convention obliges State Parties to bring about progressively and as soon as possible the complete abolition or abandonment of institutions and practices similar to slavery, including such practices as debt bondage, serfdom, the promise or gift of a woman in marriage without her consent in exchange for payment, liability of a woman to be inherited upon the death of her husband to another person, and various types of exploitation of child labour. 41 Since 1945, the prohibition against slavery was reiterated and reaffirmed in several international human rights instruments. 42 In most II

II...

39

Art. 5.

40

Adopted by a Conference of Plenipotentiaries convened by ECOSOC Res. 608 (XXI) of Apr. 30, 1956, done at Geneva, Sept.7, 1956, entered into force, Apr.

41

See e.g. Bernheim, Child Slavery in India, 40 Swiss Rev. World Aff. 24-25

30, 1957.

42

(June 1990). Article 5 of the Univ. Dec. Hum. Rts. provides that: "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." See also Art. 8 of the Int'l Cov. Civ. Pol. Rts., Art. XXXIV of the Am. Dec. Rts. Duties Man, Art. 4 of the Eur. Conv. Hum. Rts., Art. 6 of the Am. Conv. Hum. Rts. and Art. 5 of the Afr. Charter Hum. Peoples' Rts.

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of these instruments, the right not to be subjected to slavery is expressly non-derogable. 43 A related problem of international concern is that of the white-slave traffic ie. the international movement of persons entrapped and forced into prostitution. 44 The International Labour Organisation, which has as its special mandate the improvement of conditions of work everywhere, has assumed a distinct role in international efforts for the elimination of slavery. In 1930, the ILO adopted the Forced Labour Convention (No.29) 45 which defines 'forced labour' as all work or service "... exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. "46 The Abolition of Forced Labour Convention (No.105) 47 was adopted in 1957 obliging Members of the ILO to suppress and not to make use of any form of forced or compulsory labour as a means of political coercion, discipline, or punishment for having participated in strikes, or to mobilize labour for purposes of economic development, or as a means of racial, social, national or religious discrimination. The sophisticated supervisory mechanisms of the ILO require States which have ratified a particular Convention to report on its law and practice in implementing international labour standards. As a further follow-up measure the ILO Governing Body decided at its 201st Session to request Member States which had not ratified the forced labour Conventions to report on the state of their

43

See Arts. 4(2) of the Int'l Cov. on Civ. and Pol. Rts., 15(2) of the Eur. Conv.,

44

See the Conv. for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, approved by G.A. Res.317(1V) of Dec. 2 1949, entered into force, July 25, 1951 and the Int'l Agreement of 18 May 1904 for the Suppression of the White Slave Traffic, as amended by the Proto., approved

and 27(2) of the Am. Conv.

45

46 47

by the G.A. on Dec.3, 1948. Ratified by 128 States as of Jan. 1, 1989. Art. 2. See also the Forced Labour (Indirect Compulsion) Rec., 1930, No.35. Ratified by 108 States as of Jan. 1, 1989.

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law and practice concerning these standards. 48 (ii) INDIVIDUAL RESPONSIBILITY FOR SLAVERY

IN INTERNATIONAL LAW Article 5(3) of the 1926 Slavery Convention provides that: "In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned." In other words, forced labour, allowable only under certain circumstances, is only permissible if administered by a government organ, rather than by private interests. Parties to the Convention are obliged to impose severe penalties for violations of national laws implementing the Convention. 49 In the 1956 Supplementary Convention, the act of conveying slaves "... shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties." States are obliged to take effective measures to prevent and punish persons guilty of conveying slaves and using national flags on ships and aircraft for the purpose. Article 6(1) provides that: The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. 50

49

See Art. 19(5)(e) of the ILO Const. See also Gen'l Survey of the Repts. relating to the Forced Labour Conv. 1930 (No.29), and the Abolition of Forced Labour Conv. 1957 (No.105), Rep. of the Committee of Experts on the Applic. of Convs. and Recs. (Arts. 19, 22 and 35 of the Const.)- Vol.B Rep. III (Pt. 4B). Art. 6.

50

See Arts. 3, 5 and 6.

48

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Section V of the 1956 Supplementary Convention obliges States Parties to undertake to cooperate with each other and with the United Nations to implement the Convention, and imposes a duty on Parties to communicate to the UN Secretary General copies of laws, regulations and administrative measures enacted to do so. By Article 8(3), the Secretary General is authorized to disclose information from communications received, to other Parties and to the Economic and Social Council for the purposes of documentation, discussion or recommendations on slavery and related institutions and practices. 51 The international community recognized early on that multilateral cooperation was required in order to suppress the slave-trade. International rules obliging States to enforce national criminal measures against slavery, demonstrate that slavery like torture, apanheid, genocide and crimes committed during armed conflict, is perceived as sufficiently serious to warrant the special standard of individual responsibility. However, responsibility of the individual for slavery differs in rationale and formulation from other international rules of individual responsibility. The scene of the crime of slavery and the identity of the perpetrator set slavery apart from most other serious human rights violations. Although most States had undertaken early on not to commit slavery, private individuals whose actions were unauthorized by States, continued to capture, transport and supply persons for the purposes of slavery and slavery-like practices. Historically slave-trading was, and continues to be, perpetrated on the high seas as well as on aircraft flying in neutral airspace. 52 Perpetrated in this manner, detection of slavetrading and punishment of slave-traders is especially difficult because the

51

52

See Zoglin, UN Action against Slavery: A Critical Evaluation, 8 Hum. Rts. Q. 306-339 (May 1986). See the lnt'l Civ. Aviation Org.'s Conv. on Offenses and Certain Other Acts Committed on Board Aircraft, signed at Tokyo Sept. 14, 1963; 58 Am. J. lnt'l L. 566 (1964).

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high seas and neutral airspace are territories res communis; they are not subject either to the sovereign control or legal jurisdiction of any single State. The special need for international cooperation to prevent and abolish slave-trading and slavery arises not only from the seriousness of the crime, but also because of where and by whom it is committed. 53 (iii) PRESENT LEGAL STATUS OF INTERNATIONAL NORMS

AGAINST SLAVERY The multitude of conventions, evidence of opinio juris and general State practice indicate that the prohibition against slavery, slavery-like practices and slave-trading, form part of customary law. In view of the relatively consistent formulation of the right not to be subjected to slavery, its non-derogable status as a human right, and concerted efforts to eradicate slavery, it seems clear that international norms against slavetrading and slavery constitute jus cogens. 54

5. PRINCIPLE OF NON-DISCRIMINATION

Historically, the worst violations of human rights have been committed on a discriminatory basis. Logically, the violation of an individual's human rights on grounds of his or her membership in a particular group 53

54

Not surprisingly some rules against slavery are found in treaties not relating to human rights per se. See for e.g. Art. 13, the Conv. on the High Seas 1958 that: "Every State shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that purpose." Art. 13 also provides that any slave taking refuge on board any ship is ipso facto free. The peremptory status of norms against slavery was alluded to in the dictum of the Barcelona Traction Case [I.C.J. Rep. 1970 para. 33] that slavery is among rights of such importance that 'all States can be held to have a legal interest in their protection; they are obligations erg a omnes.'

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indicates that all other members of the group are similarly susceptible to having their rights violated on the same grounds. Violations based on distinctions of race, sex, 55 language, 56 religion, 51 or other arbitrary criteria, are thus more likely to be committed in a systematic and widespread way. A discriminatory pattern may therefore allude to the scale and systematic character of human rights violations. International rules on non-discrimination relate to individual responsibility in international law for serious human rights violations in two ways. On the one hand, the principle of non-discrimination forms part of the prescriptive content of a number of international human rights norms; the international crimes of slavery, apanheid and genocide, for example, are defined in terms of non-discrimination. On the other hand, non-discrimination figures as a cardinal principle of international law prescribing how human rights norms in general are to be applied. Significantly, the UN Charter lists as one of the purposes of the United Nations the achievement of:

55

56

51

See generally Benson, Equal Pay for Work ofEqual Value, 15 Israel Y.B. Hum. Rts. 66-85 (1985), Encel, Affirmative Action in the Employment of Women, Id., 52-65, Shapiro-Libai, The Concept ofSex Equality: The UN Decade for Women, 11 Id., 106-132 (1981), Guggenheim, The Implementation of Human Rights by the UN Commission on the Status ofWomen, 12 Tex. Int'l L. J. 239-249 (1977), and Trebilcock, Sex Discrimination, in 8 Encyclopedia of Pub. Int'l L. 476-480 (Max Planck Inst. Comp. & Int'l L.1985). See Sundberg-Weitman, Legal Tests for Applying the European Convention on Human Rights and Freedoms in Adjudicating on Alleged Discrimination, 49 Nordisk Tidsskrift for lnt'l Ret 31-58 (1980) on, inter alia, the Belgian Linguistic Case. See Krishnaswami, Study ofDiscrimination in the Matter ofReligious Rights and Practices, 11 N.Y.U.J. Int'l L. & Pol. 227-296 (1978), Lerner, Toward a Draft Declaration against Religious Intolerance and Discrimination, 11 Israel Y.B. Hum. Rts. 82-105 (1981), and Neff, An Evolving International Legal Norm of Religious Freedom: Problems and Prospects, 7 Calif. W. lnt'l L. J. 543-591 (Sum.1977).

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Chapter III international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, .. Ianguage, or re I1g10n; ... 58

Non-discrimination thus constitutes one of the most central principles of international law governing application of human rights norms. 59 Unlike human rights violations for which there exist individual responsibility in positive international law, instances of discrimination do not always involve serious infringements of human rights. Discrimination may occur in insignificant ways, whereas acts of genocide, or war crimes, or torture, to take examples, are recognized as especially serious violations of human rights. The relation of the nondiscrimination principle to individual responsibility therefore differs in kind from the relation of the substantive human rights examined in Chapters II and III to individual responsibility.

58 59

Art. 1(3). See also the preamble and Arts. 13(1)(b), 55( c), 76(c), 62(2), and 68. See the U.N. Dec. on the Elim. of All Forms of Racial Discrim.,proclaimed by G.A. Res. 1904 (XVIII) of Nov. 20, 1963, ILO Conv. No.111 Concerning Discrimination in Respect of Employment and Occupation, adopted on June 25, 1958, entered into force June 15, 1960, ILO Conv. No.100 Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, adopted on June 29, 1951, entered into force May 23, 1953, U.N.E.S.C.O. Conv. against Discrim. in Education, adopted on Dec.14, 1960, entered into force May 22, 1962 and the 1962 Protocol., Dec. on the Elim. ofDiscrim. against Women, proclaimed by G.A. Res. 2263 (XXII) ofNov.7, 1967, Conv. on the Elim. of All Forms of Discrim. against Women, adopted by G.A. Res. 34/180 on Dec.18, 1979, entered into force on Sept.3, 1981, Dec. on the Elim. of All Forms of Intolerance and of Discrim. Based on Religion or Belief, proclaimed by G.A. Res. 36/55 of Nov.25, 1981, Dec. on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, proclaimed by U.N.E.S.C.O. on Nov. 28, 1978, and the Decl. on Race and Racial Prejudice, adopted and proclaimed by U.N.E.S.C.O. on Nov. 27, 1978.

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The primary aim of international instruments on discrimination is to prohibit certain kinds of discrimination to ensure that government policy is pursued on a non-discriminatory basis and to enjoin States to enact appropriate measures for the punishment of offenders, whether they are government officials, private individuals, groups, or organizations. The chief international instruments on racial discrimination, namely the UN Declaration on Racial Discrimination, and the International Convention on the Elimination of All Forms of Racial Discrimination 60 are designed to curb racial discrimination rather than to catch individuals responsible for committing heinous crimes. Accordingly, these instruments do not contain provisions barring superior orders as a defence or stipulating that the individual is responsible regardless of official rank. (i) SUBSTANTIAL AND PROCEDURAL ASPECTS OF THE RACIAL CONVENTION There are provisions in the Racial Convention which prohibit individuals from engaging in discrimination, but these are of indirect application imposing responsibility on ratifying States, rather than on individuals in a personal capacity. 61 Article 2(1) of the Declaration provides that:

60

61

60 Am. J. Int'l L.650 (1966), entered into force Jan. 4, 1969, ratified by 124 States as of Sept. 1986. The U.S. is one of only seven countries which have signed but not ratified the Conv. See Burrows, Implementing the U.N. Racial Convention, 7 Aust. Y.B. lnt'l L. 236-278 (1976-77) and Buergenthal, Implementing the UN Racial Convention, 12 Tex. Int'l L.J. 187-221 (1977), Dore, United Nations Measures to Combat Racial Discriminations, 10 Den. J. Int'l L. & Pol'y 299-330 (1981) and Trindade, Exhaustion ofLocal Remedies under the United Nations International Convention on the Elimination of All Forms of Racial Discrimination, 22 Ger. Y.B. Int'l L. 374-383 (1979).

96

Chapter III No state, institution, group or individual shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons, groups of persons or institutions on the ground of race, colour or ethnic origin.

Article 9(2) provides that: All incitement to or acts of violence, whether by individuals or organizations against any race or group of persons of another colour or ethnic origin shall be considered an offence against society and punishable under law. In the Convention against Racial Discrimination, Article 4 declares that States-parties condemn all propaganda and all organizations espousing racial hatred and discrimination. Under Article 5 (b), States Parties to the Convention: ... undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national origin, to equality before the law, notably in the enjoyment of ... [t]he right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials, or by any individual, group or institution. Article 6 of the Convention obliges States Parties to undertake to provide effective protection, remedies and competent enforcement through national tribunals and other State institutions. Article 8 establishes a Committee on the Elimination of Racial Discrimination. The Committee may receive communications alleging violations of the Convention against a State Party where the State Party has recognized the competence of the Committee to receive such communications.

62

62

See Lerner, Curbing Racial Discrimination- Fifteen Years of CERD, 13 Israel Y.B. Hum. Rts. 185-194 (1983).

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(ii) PRESENT LEGAL STATUS OF THE PRINCIPLE OF NON-DISCRIMINATION The principle of non-discrimination as it has been recognized since 1945 guarantees the right of individuals to equal treatment before and under the law. Variations as to the content of provisions prohibiting discrimination in international and national instruments usually relate to the precise grounds which constitute prohibited grounds of distinction. If the UN Charter may be considered as a sort of constitution of the international legal order, references to non-discrimination in the Charter establish the primacy of non-discrimination as a cardinal principle for the application of human rights norms in general in addition to its role as a substantive legal norm. 63 As the worst human rights abuses tend to be committed on a discriminatory basis, violation of the principle of non-discrimination attracts heightened scrutiny from the international community. Positive legal rules on individual responsibility attach to human rights violations generally recognized by the international community to be the most serious. Evidence of systematic discrimination also signals therefore, that the pattern of serious human rights violations may be being committed on a widespread scale and as such, may fall within one of the categories for which responsibility of the individual is incurred.

63

In the Barcelona Traction Case, the I.C.J. considered the prohibition of racial discrimination to entail an obligation erga omnes. See Barcelona Traction Case (Second Phase), 1970 I.C.J. Rep. 3 at 32.

CHAYfER IV PATTERNS OF IMPLEMENTATION

In the international legal system there exists no legislature to make law, no court of compulsory jurisdiction to adjudicate upon it, and no police to enforce it. Enactment and enforcement of criminal law remain primarily domestic matters. Since the jurisdiction of every State is limited, the arrest, trial and punishment of an offender who manages to flee the country pose special problems. An individual may commit a crime in one State and then flee to another State, safe from prosecution and punishment, especially where there exist no extradition arrangements between the two States. Even where the act constitutes a crime in international law, courts in the State to which the offender has fled may be unwilling to prosecute on the grounds that there is no jurisdictional basis to do so; the crime may have been committed beyond the borders of the State and the offender may be a national of another country. It can be especially difficult for another State to gain custody of an offender for prosecution where an offender enjoys the hospitality or protection of a particular country. Chapters II and III examined the content and legal status of international legal norms pertaining to individual responsibility for human rights violations. In this Chapter, patterns in the implementation of

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international norms on individual responsibility for human rights violations are sketched by first analyzing the doctrine of universal jurisdiction, and then by examining the Eichmann Case and Filaniga v. Pena Jrala, two cases in national law where pertinent issues were sharply raised. Lastly, proposals that have been advanced over the years for the establishment of an international criminal court are covered briefly. The treatment in this Chapter is intended to trace, rather than to provide an exhaustive account, either of relevant national jurisprudence or of various proposals relating to establishment of an international criminal court. 1

1. NATIONAL MEASURES OF IMPLEMENTATION (i) DOCTRINE OF INTERNATIONAL JURISDICTION

Generally speaking, the jurisdiction of a State extends to the limits of its sovereignty and it may not encroach upon the sovereignty of other States. International jurisdiction is an aspect or an ingredient or a consequence of sovereignty: ... laws extend so far as, but no further than the sovereignty of the State which puts them into force nor does any legislator normally intend to enact laws which apply to or cover persons, facts, events or conduct outside the limits of his State's sovereignty. 2

1

2

One may refer to Bridge, The Case for an International Court of Criminal Jurisdiction and the Fonnulation of International Criminal Law, 13 Int'l & Comp. L.Q. 1255-1281 (Oct. 1964). See also Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, 1987. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 Hague Recueil at 20 (1984).

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The central axiom is that a State has exclusive jurisdiction over persons to the limits of its territorial sovereignty (and on vessels under its flag in res communis). 3 Exclusivity of jurisdiction 4 denoted by this basic premise is qualified by the fact that in the modern international system, many aspects of national life previously considered to fall within the 'reserved domain of the State' are subject to international law. The exercise of jurisdiction may be legislative, executive or judicial. Distinction among the exercise of these kinds of jurisdiction is important since it may be easier to incorporate or recognize international criminal law in national legislation, than actually to exercise jurisdiction over the offender by way of enforcement. Jennings 5 and Brownlie 6 view legislative, executive and judicial jurisdiction as coterminous. 7 The Harvard Research Draft Convention on Jurisdiction With Respect to Crime of 1935 8 lists five principles recognized by States to permit jurisdiction: the territorial principle referring to where the offence was committed; second, the nationality principle, referring to the nationality 3

4

5 6 7

8

The Commentary to the Harvard Draft and U.S. v. Aluminum Co. of America 148 F.2d 416 (1945) and to U.S. v. Watchmakers of Switzerland 133 F.Supp.40 (1955); 134 Supp.710 (1955) support the view that an act committed abroad by a foreign national having consequences or effects within the United States, forms sufficient legal basis for U.S. courts to seize jurisdiction. But see Zagaris and Rosenthal, United States Jurisdictional Considerations in Imernational Criminal Law, 15 Calif. W. Int'l L. J. 303 (1985), and ld., at 20, and Jennings, The Limits ofState Jurisdiction, 32 Nordisk Tidsskrift for lnt'l Ret at 225 (1962) that this view reflects aU .S. bias and represents neither the general practice of States nor any rule of general international law. See Art. 2(7) of the UN Charter. Jennings, The Limits of State Jurisdiction, 32 Nordisk Tidsskrift for Int'l Ret 209, 213, 214 (1962). See Brownlie, Principles of Public International Law: Fourth Edition 309 (1990). But see Mann, The Doctrine ofInternational Jurisdiction Revisited After Twenty Years, 186 Hague Recueil 9, (1984) emphasizing the judicial/legislative distinction. 29 Am. J. lnt'l L. 443 Supp. (1935). The Harvard Research Draft is authoritative for its research value as a comparative legal study.

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of the offender; third, the protective principle, referring to a national interest injured by the offence; fourth, the universality principle referring to the custody of the offender; and fifth, the passive personality principle referring to the nationality of the person injured by the offence. The first four of these principles were endorsed by the authors of the Harvard Research Draft while the passive personality principle was dropped. (ii) UNIVERSAL JURISDICTION - CONTENT AND LEGAL

STATUS As indicated in the Harvard Research Draft, there are distinct grounds for the exercise of universal jurisdiction in pre-1945 international law relating to jurisdiction piracy, and conventions

custody over the offender. The doctrine of universal arose out of international resolve to abolish slavery 9 and in connection with the laws of war. Several multilateral adopted after 1945 authorize the exercise of universal

jurisdiction for particular crimes listed therein. 10 Recognition that international cooperation was required to suppress slavery and piracy was kindled in the 1815 Congress of Vienna. It was realized that there would be little prospect of suppressing slave-trading and piracy unless international law authorized any State having custody over the offender to prosecute regardless of the offender's nationality, since a large part of the actus reus was carried out in territory res communis omnium. The rationale for universal jurisdiction with respect

9

See ch. III (4) on slavery.

° For universal jurisdiction relating

1

to apartheid, see ch. III (2). For universal jurisdiction in relation to other acts, see the Hague Conv. for the Suppression of Unlawful Seizure of Aircraft 1971, Montreal Conv. for the Suppression for the Unlawful Acts against the Safety of Civil Aviation 1973, Conv. on the Prevention and Punishment of Crimes against Internationally Protected Persons 1977, Conv. to Prevent and Punish the Acts of Terrorism 1976, Conv. on the Prevention of the Taking of Hostages 1979.

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to slavery is therefore based on the fact that this serious crime committed in territory beyond the jurisdiction of any State is likely to go unpunished, unless there were added an exceptional right of jurisdiction to the normal grounds of jurisdiction. The basis for universal jurisdiction as it arose in connection with efforts to suppress slave-trading and piracy relates primarily to the peculiar character of the locus delicti, rather than to the serious nature of the crime. Murder, torture, and conspiracy to overthrow the Government are examples of crimes which may be as serious as slave-trading or piracy but which the international community has not recognized as giving rise to universal jurisdiction. More pertinent to universal jurisdiction over the individual human rights offender is jurisdiction in respect of war crimes. Certain kinds of acts are recognized to constitute such a grave affront to the international community that any State having custody over the offender has a right to prosecute regardless of the locus delicti or the nationality of the offender. Whereas universal jurisdiction applies to slave-trading and piracy primarily because these crimes are committed typically in res communis, universal jurisdiction in respect of war crimes and certain other crimes relate to recognition by the international community of the particular gravity of the crime. Human rights violations, unlike piracy or slavetrading are usually committed within the territorial jurisdiction of a State. It is the serious nature of the crime, rather than the point where it was committed, which most applies to individual responsibility for violations of human rights in international law. Universality of jurisdiction over offenders of the laws of war can be traced back to the early 14th century. At this time, the jus militare, or law of arms governing the profession of armed men, became part of the jus gentium. 11 One effect of this development was that the law of arms became widely known and followed because the jus gentium, being a 11

Draper, The Modern Pattern of War Criminality, 6 Israel Y.B. Hum. Rts. 9, at 10-14 (1976).

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mixture of Canon Law, Roman Law, feudal law, and the law governing military behaviour, was applied throughout the Christian world. 12 The military profession became widely recognized as an honourable profession governed by the jus gentium. According to Keen 13 criminal liability applied to any member of the knighthood on the basis of custody over the offender regardless of his nationality. 14 A breach of the codes and customs of the jus militare resulted in a universality of jurisdiction. Honour was fundamental to the military profession and anyone who violated the rules of war or used prohibited weaponry could be tried and punished because of the dishonour caused. Violations included acts such as the use of poison. There are examples of trials for these offenses, carried out in medieval Europe, by military tribunals. It was the nature of the crime, being an offence against the honour of a particular code widely recognized within the military profession, rather than the locus delicti which constituted the essential element justifying universal jurisdiction in the case of war crimes. The concept of universal jurisdiction for breaches of the laws of war originated on grounds that the nature of the crime is so odious as to be the concern of the international community to ensure that offenders are caught and punished according to international law. Unfortunately, confusion between the two rationale for universal jurisdiction appears in some of the efforts at codification, in adjudication, and in certain doctrinal works.

12

13 14

Id. at 11. See generally Keen, The Laws of War cbs. II & III (1965). See also Schwarzenberger, 2 International Law: The Law of Armed Conflict 1968.

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In the Lotus Case 15 Judge Moore held in dissent that: in the case of what is known as piracy by law of nations, there has been conceded a universal jurisdiction, under which the person charged with the offence may be tried and punished by any nation into whose jurisdiction he may come . . .Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate's operations is the high seas, which is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry and is treated as an outlaw, as the enemy of all mankind - hostis humanis generis - whom any nation may in the interest of all capture and punish. Judge Moore's recognition of the doctrine of universal jurisdiction in the Lotus Case, is based explicitly on the ground that piracy is an offence committed in res communis and that the pirate and slave-trader are individuals hostis humanis generis. The Harvard Research Draft of 1935 defines the universality principle as 'determining jurisdiction by reference to the custody of the person committing the offence'. Article 10 of the Draft would recognize piracy as an offence giving rise to universal jurisdiction in addition to acts committed in the following situations: a) When committed in a place not subject to its authority but subject to the authority of another State, if the act or omission which constitutes the crime is also an offence by the law of the place where it was committed, if surrender of the alien for prosecution has been offered to such other State or States and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of the place where the crime was committed. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of the place where the crime was committed. b) When committed in a place not subject to the authority of any State, if the act or omission which constitutes the crime is also an 15

The Lotus Case (France v. Turkey), 1927 P.C.I.J. Ser. A, no. 10.

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offence by the law of the State of which the alien is a national, if surrender of the alien for prosecution has been offered to the State or States of which he is a national and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of a State of which the alien is a national. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of a State of which the alien is a national. c) When committed in a place not subject to the authority of any State, if the crime was committed to the injury of the State assuming jurisdiction, or one of its nationals, or of a corporation or juristic person having its national character. d) When committed in a place not subject to the authority of any State and the alien is not a national of any State. The Harvard Research Draft characterization is based on an analogy of jurisdiction over pirates under international customary law, placing primary emphasis on the locus delicti. Article 10 makes no reference to crimes under international law and views universal jurisdiction as a legal basis by which to catch offenders primarily because they have breached national law yet are not amenable to prosecution under the other heads of jurisdiction. In 1949 the United Nations War Crimes Commission confused the twin grounds for universal jurisdiction by stating that the right to punish war crimes . . .is possessed by any independent State whatsoever, just as is the right to punish the offence of piracy. 16 This view implies that the rationale for universal jurisdiction in relation to war crimes are the same as that for piracy when in fact they are quite different. Acts of piracy are committed in res communis omnium, while war crimes may be committed in areas subject to the sovereignty of a State. 17 As regards the status of universal jurisdiction in international law, II...

II

16 17

15 War Crimes Rep. 26 (1949). This point is also made in Draper, The Modern Pattern of War Criminality, 6 Israel Y.B. Hum. Rts. at 21-22 (1976).

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Article 6 of the Charter of the International Military Tribunal states that crimes against peace, war crimes and crimes against humanity 'are crimes coming within the jurisdiction of the Tribunal'. Article 2 of the Agreement for the Establishment of an International Military Tribunal provides that the Tribunal itself is constituted 'for the trials of war criminals whose offenses have no particular geographical location' . 18

It is arguable that these provisions, read together, imply that the I.M.T. intended to exercise universal jurisdiction. However, the Nuremburg Trials do not stand as very clear examples of the exercise of universal jurisdiction for war crimes. It is true that the exercise of universal jurisdiction by the Nuremburg Tribunal was based on the nature of the offence, and not the locus delicti. However, this does not necessarily mean that the I.M.T. asserted universal jurisdiction since the offenders were also amenable to territorial jurisdiction in any event. 19 Another difficulty with inferring that the I.M.T. acted on the basis of universal jurisdiction is that no Allied soldier or commander was brought before the Tribunal to answer for the bombing of Dresden, Hiroshima or Nagasaki or other civilian targets. The Nuremburg Tribunal failed to prosecute war criminals as such regardless of nationality and it was therefore unnecessary to invoke universal jurisdiction. The fact that only victor States were represented on the Tribunal and only enemy war criminals were tried militates against the conclusion that the I.M.T. was exercising universal jurisdiction. Consequently, the Nuremburg Tribunal and proceedings stand as rather weak authority for universal jurisdiction for war crimes in modern international law. 20

18

19

20

5 U.N.T.S. 251; 39 Am. J. Int'l L. Supp. 257 (1945). As argued above, the I.M.T. was an exceptional exercise of the territorial jurisdiction of the Allied Powers. The trials, authorized by classic laws of war, could take place only with the occupation of defeated Germany. See supra ch. II (2) (i). It also calls into question the legitimacy of the Tribunal, or at least its impartiality. See e.g. Editors of Fortune Magazine, The Narnberg Novelty, in

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(iii) ILLUSTRATIVE CASES IN NATIONAL LAW

Eichmann Case The Eichmann Casi- 1 remains the most important case regarding the prosecution of an individual on the basis of universal jurisdiction for a human rights violation in international law. Eichmann, a German national, served in the Jewish Office of the extermination of Jews Argentina and forcibly

Nazi Government in his capacity as Head of the Gestapo. His office was responsible for the in Europe. In 1960, Eichmann was found in seized and abducted to Israel to stand trial under

the 1950 Nazi and Nazi Collaborators (Punishment) Law for war crimes and crimes against humanity. The 1950 Act authorizes prosecutions to be brought against persons who committed war crimes and certain other crimes during the Second World War in an enemy country. Eichmann was found guilty and sentenced to death. Supreme Court was dismissed.

His appeal to the Israel

The Eichmann Case is significant because the District Court of Jerusalem relied on universal jurisdiction in order to proceed with the prosecution. The defendant was not an Israeli national, nor were the crimes committed on Israeli territory. The nationality and territoriality principles therefore could not apply. Furthermore, the acts complained of were committed at a time when they were not crimes under Israeli national law, since the State of Israel was not in existence at any time during the Second World War. It was submitted in defence that the 1950 Nazi Collaborators Law exceeded the bounds of State jurisdiction, that it was contrary to

21

From Nuremburg to My Lai 101-107 (Baird ed. 1972) and Taft, Equal Justice Under Law, Id., 107-113, but see Stimson, The Nuremburg Trial: Landmark in Law, Id., 114-125. Attorney-General of the Government of Israel v. Eichmann (Dist. Ct. Jerusalem) (1961), 36 Int'l L. Rep. 5.

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international law, and that it exceeded the power of the Israeli legislature: by imposing punishment for acts done outside the boundaries of the State and before its establishment, against persons who were not Israeli citizens, and by a person who acted in the course of duty on behalf of a foreign country ... 22 The Court held that the relation between Israeli domestic law and international law is similar to that of English law and international law. The jurisdiction of the Court was asserted first by way of the 1950 Nazi and Nazi Collaborators (Punishment) Law on the basis of the primacy of domestic over international law. However, the Court did go on to consider whether the 1950 Act conflicted with principles of international law. In its consideration of international law, the Court found that crimes 'which struck at the whole of mankind and shocked the conscience of nations, are grave offenses against the law of nations itself (delicta jus gentium)'. International law, observed the Court, has no international court capable of prosecuting the crimes of which Eichmann was accused, and therefore relies on the legislative and judicial organs of States to give effect to international criminal law by prosecuting and punishing criminals. "The jurisdiction to try crimes under international law is universal. "23 The Court observed that universal jurisdiction originated in the Middle Ages when dangerous criminals were tried by tribunals having custody, and not necessarily in a forum where the offence was committed. Universal jurisdiction, said the Court, has also been exercised 'since time immemorial' over persons alleged to have committed piracy. 24 22

23 24

Para. 8(a) of A-G of the Govt. of Israel v. Eichmann (Dist. Ct. Jerusalem) (1961), 36 Int'l L. Rep. 5. Id. Para. 12. Counsel for the defence raised the apprehension and abduction of Eichmann as contrary to international law and contended that it nullified the jurisdiction of the

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The Eichmann decision on universal jurisdiction is open to several serious criticisms. First, the lack of clear recognition of universal jurisdiction by States calls into question the accuracy of the District Court's assertion that delicta jus gentium give rise to universality of jurisdiction in international law. Apart from the Judgment of the International Military Tribunal and sporadic practice of tribunals exercising jurisdiction over offenses against the jus militare in classic international law, the prosecution of the offenses against the jus gentium have not been consistent or uniform. Furthermore, as argued above in Chapter II, even the Nuremburg Tribunal represents 'victor's justice'; its authority derived from the right of victor belligerents to try enemy offenders for crimes in the jus gentium. If this is true, then the District Court of Jerusalem erred in asserting jurisdiction since victor's justice does not authorize Israeli courts to try offenders in connection with the Second World War because the State of Israel was not a party to the armed conflict. The Appeal Judgment opined that since it is well recognized that international law confers upon national tribunals universal jurisdiction over the pirate there is therefore an even stronger case for universal jurisdiction over crimes against humanity on the ground that it poses much more of a threat to international peace and security and to elemental considerations of humanity than does a single act of piracy. As discussed above, however, the basis for the assertion of universal jurisdiction in the case of piracy is not so much the seriousness of the crime, but the locality of its commission. In the case of crimes against humanity, crimes against peace and war crimes, the other principles of jurisdiction take priority (ie. the principles of territoriality, nationality and

Court. This contention was rejected on the grounds that the Govts. of Argentina and Israel had reached agreement on the settlement of the dispute arising from the violation of Argentinean sovereignty, and that the illegality of arrest is not fatal to jurisdiction to prosecute, although it may give rise to State responsibility.

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the protective principle). 25 Perhaps the Eichmann Case would have lent greater support to the enforcement of international criminal law if it had avoided an analogy with piracy. However, the Appeal Court in Eichmann did relate the doctrine of universal jurisdiction to the serious nature of the crime, thereby lessening its reliance on the piracy analogy.

Filartiga Case Another interesting case relating to individual responsibility for violation of a human right is Filartiga v. Pena Irald 6 in which the United States Court of Appeals assumed jurisdiction over a claim brought by a Paraguayan national against another Paraguayan national (a police chief). The applicant claimed that the police chief had wrongfully caused the death of his son through torture in Paraguay. It is significant that the case was brought under the Alien Tort Claims Act. 27 The Act provides that the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or treaty of the United States. Neither party was a US national and the act complained of took place wholly outside the United States. For the claim to be admissible therefore, the 11

•••

II

Fawcett argues in The Eichmann Case, 38 Brit. Y.B. Int'l L. 181, 205-6 (1962), that the Court could have seized jurisdiction over the case merely by applying Art. VI of the Genocide Conv. Also see ch. III (1) (ii) on genocide. The Convention does not state that it cannot apply retroactively to crimes committed before it entered into force on (Jan. 12, 1951). Fawcett argues that as the Convention is plainly declaratory, it did not create any new crimes and that no provision specifies when the crime of genocide had to have been committed to constitute a breach of the Convention. On the other hand, Art. 28 of the 1969 Vienna Conv. on the Law of Treaties states the presumption that treaties are not retroactive in effect. 26 630 F.2d 876 (2nd Cir.1980) 27 28 u.s.c. s. 1350 (1982). 25

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prohibition against torture had to be considered part of the law of the nations. The Court did hold that certain fundamental human rights, including freedom from torture, form part of the law of nations. Accordingly, the jurisdictional requirement, which had only been successfully met in two cases since 1789, 28 was met in Filartiga and the applicant was able to win his case. Filartiga appeared to signal readiness on the part of the US judiciary to affirm the constitutional basis for the Alien Tort Claims Act by recognizing international custom as part of United States common law. Subsequent cases in the US however, particularly Tel-Oren v. Libyan Arab Republic, 29 which concern other claims under the Alien Tort Claims Act, have circumscribed the advance represented by Filartiga. In Tel-Oren, the claimants sought jurisdiction against members of the Palestinian Liberation Organization for damages resulting from an attack on a tourist bus in Israel. One of the key elements in the Filartiga Case was that Pena Irala could be found individually responsible since his violation of the law of nations was at least connected to an official State act; on this basis the Court held international responsibility could therefore apply. The Court in Tel-Oren distinguished Filartiga on the grounds that the PLO did not represent a State (in terms of criteria provided by either US law or internationallaw). 30 Therefore the jurisdictional requirement of the Alien Tort Claims Act was not met in Tel-Oren. One result of this ruling is that since Tel-Oren, a claim under the Alien Tort Claims Act must be connected in some way to the international responsibility of a State in order for the Court to seize jurisdiction. This requirement seems

28 29

30

See Bolchos v. Darrell3F.Cas. 810 (D.S.C. 1795) (no. 1607) and Adra v. Clift 195 F. Supp. 857 (D. Md.1961). 726 F.2d 774, 824 D.C.Cir. 1984. See Art. 1 of the Montevideo Conv. on Rts. and Duties of States, signed, Dec. 26, 1933.

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to indicate a reluctance on the part of US courts to recognize individual responsibility for human rights violations in international law as enforceable in domestic law through the Alien Claims Tort Act. 31 The Filaniga Case highlights some of the problems in the attempt to use national law, ill-suited to the task, to prosecute and punish individual offenders of international human rights law where the person is not amenable to jurisdiction on grounds other than those provided by universal jurisdiction. Aside from the judicial retreat indicated in US law subsequent to Filaniga, there remain practical obstacles which the applicant in the Filaniga Case was never able to surmount. Despite the applicant having met the difficult admissibility criteria under the Alien Tort Claims Act, and even having won the case, he was never able to get the judgment enforced because his adversary merely returned to Paraguay where he remained beyond the reach of US law enforcement. Also, the cost of launching a tort action falls to the individual claimant, unlike criminal prosecutions costs of which are borne by the State. Moreover, the use of a statute designed for tort claims, but applied to torture, appears to belittle the status of torture as an international crime; in national law, mere 'wrongs', actionable though they are, are generally considered less grave than 'crimes'. Classifications of wrongful acts in domestic law may not apply very well to crimes in international law.

31

See Scobie, Enforcing the Customary International Law of Human Rights in Federal Court, 74 Calif. L. R. 127-187 (Jan. 1986) and Works, Filartiga v. Pena-Irala: Providing Federal Jurisdiction for Human Rights Violations through the Alien Tort Statute, 10 Den. J. Int'l L. & Pol'y 355-359 (1981).

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(iv) CONCLUSIONS REGARDING UNIVERSAL JURISDICTION AND DOMESTIC IMPLEMENTATION OF CRIMES IN INTERNATIONAL LAW Serious problems are associated with the normative content of universal jurisdiction. First, universal jurisdiction merely authorizes, rather than obliges States to prosecute and punish offenders. International law does not import a mandatory obligation upon State authorities to undertake prosecution. Even the mandatory obligations of the 1949 Geneva Conventions with respect to prosecution for grave breaches are contingent upon a request by a party to the armed conflict. In an international community composed of few members, such as existed when the Congress of Vienna was convened, this right might have been relatively effective for the suppression of international crime. In the expanded modern international community however, national legal authority to prosecute international crimes is shared among many more States. No supervisory authority beyond the State exists to ensure compliance; ie. that obligations to prosecute and punish, where they exist, are carried out. 32 Offenders therefore have a very wide latitude by which to escape prosecution and punishment because usually some States are willing to provide a fugitive safe-haven from justice in particular cases. Secondly, universal jurisdiction has developed in a very piecemeal fashion. The doctrine of universal jurisdiction originated in at least two distinct sources, from medieval law on the one hand, and on the other, out of early international cooperation to eradicate the scourges of slavetrading and piracy. Aside from slavery, piracy and certain other narrowly defined instances, universal jurisdiction for violations of human

32

For example, the function of various international bodies to promote and protect the right not to be subject to slavery, does not include promotion to prosecute individuals on the basis of universal jurisdiction.

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rights arises mainly in connection with the right of a belligerent to put on trial enemy soldiers who have committed serious breaches of the laws of war. It is not clear whether universal jurisdiction is afforded to States generally to pursue prosecutions for war crimes, crimes against peace, or crimes against humanity or whether this right applies only to parties to an armed conflict after it has ended. Consequently, there exists no systematic or general rule of law conferring an obligation, or even a right, upon States to prosecute and punish criminals who seriously offend international human rights or international criminal law in general. In addition to problems in the normative content of universal jurisdiction, the legal status of universal jurisdiction as a norm of international law is questionable. The historical development of the jus militare and jus gentium, Nuremburg Judgments and certain cases in national fora represent rather sparse authority for the doctrine of universal jurisdiction. State practice in modern international law regarding the application of universal jurisdiction has been neither general nor consistent; universal jurisdiction is thus far from universal. 33 It might appear that enforcement of international individual responsibility is likely to be more effective if it were to be carried out by domestic courts, rather than by an international tribunal. Domestic criminal law is almost always more developed and more sophisticated than the rudimentary norms of individual criminal responsibility in international law. Moreover, domestic courts have the powerful instrumentalities of the State at their disposal to enforcement penal sanctions. However, States are usually reluctant to prosecute an individual unless 33

See Sandoz, Penal Aspects of Humanitarian Law in 1 International Criminal Law: Crimes 230 (Bassiouni ed: 1986), who argues that universal jurisdiction for war crimes is of no practical value, except that it might serve a psychological function. Trials of war criminals have almost always been asserted on some basis other than universal jurisdiction, except in the Eichmann Case.

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the individual or the crime committed has a connection to the State. Difficult problems arise where the offender escapes apprehension by the State which has a legal basis upon which to prosecute such an individual. The State to which the offender has fled may not have an extradition treaty with the prosecuting State. Given the questionable status of universal jurisdiction in international law, prosecution of individuals for having committed serious human rights violations in the territory of another State is bound to take place only in extraordinary circumstances, such as those surrounding the Nuremburg trials. Even where domestic enforcement of individuals on the basis of international law does take place, domestic enforcement is unlikely to function well as a system of enforcement because the many differences in procedural and substantive law among nations would preclude the formation of a consistent body of judicial decisions. 34 The need for systematic prosecution and punishment of individuals for the commission of crimes in international law and the inadequacy of domestic courts to fill the gap has led to international efforts to create an international criminal court.

2. PROPOSALS FOR AN INTERNATIONAL CRIMINAL COURT

(i) PRE-WORLD WAR II DEVELOPMENTS In classic international law, military tribunals have been created from time to time to try enemy soldiers for war crimes. These tribunals, however, were ad hoc and retroactive in application. They were established after the particular armed conflict had ceased. The jurisdictional basis for prosecution derived from the customary right of

34

See Baxter, The Municipal and International Law Basis ofJurisdiction over War Crimes, 28 Brit. Y.B. Int'l L. 382-393 (1951).

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a belligerent to try enemy offenders for war crimes. Following the end of the First World War, the Treaty of Versailles provided, in Article 227, that the former Emperor of Germany Kaiser Wilhelm II, would be prosecuted by a special international tribunal 'for a supreme offence against international morality and the sanctity of treaties'. However, Article 227 was never executed for several reasons. Following the Second World War, the Nuremburg and Tokyo Tribunals were established by the Allied victors to try enemy offenders.

These

tribunals fall within the category of ad hoc military tribunals in customary international law. Impetus for the creation of an international tribunal to try individuals for acts of terrorism was sparked by the assassination of Yugoslavian King Alexander and French Minister M. Barthou at Marseilles

on

October 9, 1934. In response to proposals of the French Government the League of Nations Council decided to strike a Committee of Experts to draw up a draft convention for the repression of terrorism. 35

The

Committee prepared two draft conventions: one for the repression of terrorism and the other for the creation of an international criminal court, which were revised in response to the comments of Governments. In November 1937, the Convention for the Prevention and Punishment of Terrorism and the Convention for the Creation of an International Criminal Court were adopted at a diplomatic conference held in Geneva. 36 The Conventions never entered into force, however because of insufficient ratifications owing to deteriorating international relations leading up to the outbreak of World War II. The jurisdictional basis set out in the Conventions is relatively narrow, designed to cover cases of

35 36

Res. adopted on Dec. 10 1934, League of Nations C. 94 M. 47 1938 V., at 183. Adopted Nov.16, 1937, see Pro. of the lnt'l Conf. on the Repression of Terrorism, 1937, League of Nations Publication C.94.M.47.V. The international criminal court Convention was signed by 13 States but never entered into force.

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terrorism only and not other international crimes. Furthermore, the Conventions would have applied to individuals only, rather than States or corporate entities. As treaties, they would bind only parties to them. Nevertheless, the Conventions represent valuable, if modest, first steps towards recognition of the need for the creation of an international court empowered to seize jurisdiction over the international criminal in a personal capacity. 37 (ii) PRESENT AND FUTURE PROSPECTS

After the Nuremburg Tribunal had discharged its functions, the United Nations requested the International Law Commission to study the need and feasibility for an international criminal court. The Commission concluded that such a court was needed and that its creation would be possible. In response, the UN General Assembly appointed committees in 1951 and 1953 to prepare a draft international criminal court statute. 38 The General Assembly took the view that both the definition of aggression and the Code of Offenses against the Peace and Security of Mankind were tied to the possibility of creating an international criminal court. Accordingly, further study on the establishment of an international criminal court was postponed until the bases for jurisdiction rationae materiae and rationae personae were clearly defined. Aggression has since been defined in the 1974 UNGA Resolution on the Definition of Aggression, 39 but the Draft Code of Offenses against the Peace and Security of Mankind has not yet reached completion.

37

38

39

See Pella, Towards an International Criminal Court, 44 Am. J. Int'l L. 1 at 35-68 (1950). Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, 13 lnt'l & Comp. L. Q. 1255 (Oct. 1964). U.N.G.A. Res. 3314 (XXIX), GAOR 29th Sess., Supp. 21, adopted without a vote.

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Bassiouni has prepared a Draft International Criminal Code for the International Association of Penal Law which he submitted to the International Law Commission. By his own account, the Draft Code did not appear to elicit much interest within the United Nations although it received scholarly attention in other quarters. Bassiouni identifies 312 multilateral conventions which he estimates to contain elements of international penal law and concludes that 22 categories of international crimes draw recognition from positive international law. 40 There is widespread reluctance on the part of States to support concrete proposals that would actually bring an international court of general criminal jurisdiction into existence. There has not yet emerged a firm consensus on key issues of the Draft Code of Offenses, upon which creation of a general international criminal court is predicated. Understandably States might be reluctant to support proposals for the establishment of an international court vested with jurisdiction to prosecute international crimes in general. Such an idea may conjure up images of Heads of State being dragged before an international court for actions committed without their knowledge or consent, but for which they are held formally responsible. States are not likely to support the creation of an international criminal court where the crimes over which it has jurisdiction are not narrowly or well-defined since enforcement could limit the sovereignty of the State in unpredictable ways.

40

These categories are aggression, war crimes, unlawful use of weapons/unlawful emplacement of weapons, crimes against humanity, genocide, racial discrimination and apartheid, slavery and related crimes, torture, unlawful human experimentation, piracy, aircraft hijacking, threat and use of force against internationally protected persons, taking of civilian hostages, drug offenses, international traffic in obscene publications, destruction and/or theft of national treasures, environmental protection, unlawful use of the mails, interference with submarine cables, falsification and counterfeiting, bribery of foreign public officials and theft of nuclear materials. See Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal at 28-9 (1987).

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On the other hand, there is also continued recognition of the need for international enforcement of certain clearly specified criminal acts. Movement towards the creation of UN organs designed to implement specific guarantees of human rights represents a very promising development in international criminal law enforcement. On December 4, 1989, for example, the UNGA adopted Resolution 44/3941 requesting the International Law Commission to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under [the Draft Code of Offenses against the Peace and Security of Mankind] including persons engaged in illicit trafficking in narcotic drugs across national frontiers ... Three multilateral human rights conventions have been adopted since 1945 which foresee the creation of an international tribunal with jurisdiction over serious human rights violations constituting crimes committed by the individual. The Genocide Convention and the Apartheid Convention authorize prosecution of particular crimes by an international penal tribunal as may exist in future. 42 A supervisory body has recently been created under the Torture Convention. II...

II

41

Adopted by the UNGA Dec. 4, 1989, U.N.Doc. A/44/49.

42

The International Association of Penal Law has been at the forefront in urging creation of an international criminal court. President V. V. Pella of this Association prepared the 1937 Draft Conventions, and M.C. Bassiouni, Secretary-General, was appointed by the U.N. Commission on Human Rights Ad Hoc Working Group on Southern Africa as a consultant to prepare a draft statute to create an international criminal court. The final report, U.N. Doc. E/CN.4/AC.22/C.R.P.l9,25 July 1980, was entitled 'Study on Ways and Means of Ensuring the Implementation of International Instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid, including the Establishment of the International Jurisdiction Envisaged by the Convention', U.N. Doc. E/CN.4/1426/,19 Jan. 1980. See also Bassiouni and Derby, Final Report on the Establishment ofan International Criminal Court for the Implementation ofthe Apartheid Convention and Other Relevant International Instruments, 9 Hofstra L. Rev. 523(1981).

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Article VI of the 1948 Genocide Convention provides that genocide may be prosecuted by an international penal tribunal as may have jurisdiction with respect to those Contracting Parties which accept its jurisdiction. 43 No such international criminal court for genocide has been created to fulfill this purpose as yet. Article V of the Apanheid Convention 44 states that in addition to the prosecution of crimes of apanheid by competent national tribunals, prosecution may be carried out by an international tribunal as may have jurisdiction. In 1980, the United Nations took steps to establish such a international tribunal. However, the Statute for the Creation of an International Criminal Jurisdiction to Implement the International Convention on the Suppression and Punishment of the Crime of Apanheit/5 was opened for signature on January 19, 1981. This Statute has not come into force however. Only limited support for the Apanheid Convention itself has been mustered from the international community and virtually no recognition from western States has been registered. Under the Torture Convention, 46 States-Parties may recognize the competence of the Committee against Torture to receive inter-state complaints where both States are parties to the Convention. A procedure is established for consideration of the complaint by the Committee. 47 Under Article 22, States-Parties may make a declaration recognizing the competence of the Committee to receive communications from, or on behalf of, those individuals subject to its jurisdiction claiming to be victims of a violation of the obligations specified in the Convention. The Torture Committee officially came into being on 26 June 1987. The first meeting to organize and select members was held on November 26,

46

See supra ch. III (1) (ii). See supra ch. III (2) (ii) and (iii). U.N. Doc. E/CN.4/1426. See supra ch. III (3) (ii) and (iii).

47

Art. 21.

43 44

45

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1987, and the Committee assumed its functions as of January 1, 1988. 48 The Torture Committee is merely a supervisory body, rather than a judicial tribunal. States may recognize the jurisdiction of the Torture Committee on an optional basis. It is important nonetheless as it applies on a prospective basis to future instances, unlike the Nuremburg Tribunal which was created ad hoc to apply only to crimes already committed before the Tribunal was formed. International and national legal norms against torture are relatively well defined and well recognized as compared to many of the other acts Bassiouni identifies as international crimes. The creation of the Torture Committee sets a practical example for supervision of international criminal prosecution of individuals for human rights violations before domestic fora. The methods set out in the Torture Convention could be established and followed for other kinds of serious human rights violations.

48

As of June 1, 1990, there were 52 States-Parties to the Torture Conv., and 21 signatories that have not yet ratified. As of June 1, 1990, 23 States-Parties have recognized the competence of the Committee under Arts. 21 and 22 to receive both inter-state complaints and complaints from individuals. These were Algeria, Argentina, Austria, Canada, Denmark, Ecuador, Finland, France, Greece, Hungary, Italy, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey and Uruguay. The United Kingdom has recognized only inter-state complaints under Art. 21 but not individual complaints under Art. 22.

CHAPTER V CODIFICATION OF INTERNATIONAL RESPONSIBILITY

The law of State responsibility derives from classic international law. However, it is currently undergoing a kind of rebirth through the International Law Commission's efforts towards the 'progressive development of international law and its codification' pursuant to Article 13(a) of the UN Charter. 1 The classic system of international responsibility relates almost

1

Art. 15 of the Statute of the I.L.C. defines 'progressive development' to mean "the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of states" and 'codification' to mean "the more precise formulation and systematisation of rules of international law in fields where there already has been extensive state practice." However, the Rapporteur of the Committee on the Progressive Development of International Law and Its Codification observed in the final report leading up to the creation of the I.L.C. Statute that "for the codification of international law, the Committee recognized that no clear-cut distinction between the formulation of the law as it is and the law as it ought to be could be rightly maintained in practice" and that "in any work of codification, the codifier inevitably has to fill gaps in, and amend the law in the light of new developments" See UN Doc. A/AC.10/50 p. 7 para. 10 quoted in Garcia-Amador, State Responsibility: Some New Problems, 94 Hague Recueil at 372 (1958-11).

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exclusively to States, rather than to other entities such as the individual, but the individual was not entirely absent from this system. It is crucial to explore the work of the ILC relating to State responsibility because two areas in present codification efforts bear on the question of individual responsibility in international law for serious human rights violations. First, the ILC has elucidated the concept of 'international crime' in connection with the international responsibility of States, whereas criminal responsibility was previously understood to apply only to the individual. Second, the ILC has resumed work on the draft Code of Offenses against the Peace and Security of Mankind which reaffirms, clarifies and develops the Nuremburg Principles. How do these developments relate to individual responsibility for serious human rights violations?

1. ILC DRAFf ARTICLE 19 - INTERNATIONAL CRIMES AND INTERNATIONAL DELICTS (i) DEFINITIONOF 'INTERNATIONAL CRIME'

In 1949, the law of State responsibility was included among the fourteen subjects to be studied by the International Law Commission for codification. In his first report to the ILC in 1956, Garcfa-Amador observed that international law recognized a distinction between internationally wrongful acts and a category of more serious 'punishable' acts, which include, inter alia, genocide and crimes against humanity. He asked the ILC whether the scope of his study should cover these 'punishable acts', but the Commission decided that it was outside the proper scope of ILC codification. 2

2

See Spinedi, International Crimes of State: the Legislative History, in International Crimes of State: A Critical Analysis of the ILC's Draft Article 19

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In 1976 Roberto Ago, who succeeded Garcfa-Amador as Special Rapporteur, proposed that the concept of international crimes be incorporated within the codification efforts. Almost all ILC members agreed with this proposal and in the Sixth Committee of the UNGA, (responsible for consideration of ILC Reports), the socialist countries and developing countries supported the concept of particularly wrongful acts while many western States were skeptical. 3 With respect to international responsibility, the ILC has drawn a strict distinction between 'primary rules' and 'secondary rules' of international law. 'Primary rules' are taken to mean rules of international law which prescribe obligations the breach of which gives rise to international responsibility. 'Secondary rules' are those ' ... which define the legal consequences of failure to fulfill obligations established by the primary rules' 4 and as such belong specifically to the domain of international responsibility. 5 The ILC Draft Articles are structured according to this distinction such that Part 1 deals with determination of grounds by which international responsibility may arise while Part 2 concerns the content, forms and degrees of international responsibility. In addition, the ILC has referred to a Part 3 which would deal with rules of implementation

on State Responsibility at 11 (Weiler, Cassese and Spinedi: ed. 1989). Spinedi comments that by 'punishable acts', Garcfa-Amador probably had in mind punishment of the individual acting as an organ of the State, which constitutes a form of State responsibility. 3 /d.,at51-2. 4 [1976] 2 Y.B. Int'l L. Comm'n Pt. 2, at 71 para. 68, U.N. Doc. A/CN.4/Ser.A/1976/Add.1(Pt. 2). 5 The distinction between primary and secondary rules is a valuable one. It emphasizes the relation of secondary rules to primary rules while leaving open the question of the precise content of primary rules, thereby freeing the I.L.C. from having to attempt codification of the entire corpus of substantive international law.

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of international responsibility and the settlement of disputes and would thus concern the procedural aspects of judicial mechanisms etc. Article 19 of Part 1 of the ILC Draft Articles on State responsibility reads as follows: 6

Anicle 19. - International crimes and international delicts 1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subjectmatter of the obligation breached. 2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime. 3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid; (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.

6

(1976] 2 Y.B. Int'l L. Comm'n Pt. 2, at 75, U.N. Doc. A/CN.4/Ser.A/1976/ Add.l (Pt. 2).

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4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2, constitutes an international delict. The term 'international crime' used in Article 19 has been the source of considerable confusion. 7 In the context of municipal law, it connotes punishment, penalty and retribution. However as discussed in Chapter I, it is a fallacy to assume words have intrinsic or absolute meanings which exist independent of context and usage. In the context of the ILC Draft Articles on State Responsibility the meaning of the word 'crime' is not equivalent to 'crime under international law', the latter denoting crimes committed by individuals, or to 'crime' as usually used or understood in municipal law. As Sinclair remarks, Article 19 "... does not establish the criminal responsibility of States; it simply posits an aggravated degree of responsibility for internationally wrongful acts designated, for want of a better term, as 'international crimes'. "8 The principal significance of the international delicts/international crimes distinction is its recognition of two kinds of internationally wrongful acts: "... a limited category comprising particularly serious wrongs, generally called international 'crimes', and a much broader category covering the whole range of less serious wrongs. "9 This

7

8

9

Marek characterizes Art.19 as "a proposal lightly brushing aside all historical experience, all consideration of realities in the inter-State world, all fruits of a highly sophisticated scientific thought and, above all, all legal security." in Criminalizing State Responsibility, XIV-2 Belgian Rev. Int'l L. at 483 (1978-1979). Also see Brownlie who 'remains unconvinced of the practical utility of the concept of the criminal responsibility of States', in State Responsibility at 33 (1983). Sinclair, State Responsibility: Lex Ferenda and Crimes of State, in International Crimes of State at 242 (Cassese & Spinedi ed.: 1989). Also see Graefrath, Responsibility and Damages Caused: Relationship between Responsibility and Damages, 185 Hague Recueil at 57 (1984-11). [1976] 2 Y.B. Int'l L. Comm'n Pt. 2. para. 6 (Commentary to Art. 19), U.N. Doc. A/CN.4/Ser.A/1976/Add.1 (Pt. 2).

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differentiation implies two distinct regimes of legal consequences and alludes to recognition that certain acts are serious enough as to warrant collective sanctions as opposed to sanctions imposed by individual States such as reprisals. 10 In specifying the content of international crimes the ILC avoided an exhaustive enumeration of acts falling within the definition, since this would not only prove impractical, but would produce excess rigidity in the normative content of the concept and prevent its evolution in international law.U On the other hand, the ILC could have taken a formal approach and left the content of the norm purely contingent upon its determination by the international community as a whole. This approach was assumed by the United Nations Conference on the Law of Treaties in formulating the content of jus cogens.

Such an approach

however, would likely leave too much uncertainty in the meaning of 'international crime'. The ILC decided to take a middle road by referring to specific wrongful acts already recognized by the international community as especially serious, but did this by way of example, rather than by exhaustive enumeration. The question of the legal consequences of an international crime was taken up by Mr. Riphagen, appointed new Special Rapporteur in 1979, in Part 2 of the Draft Articles relating to the degrees, forms and content of responsibility . 12 Article 5(3) of Part 2, provisionally adopted by the Commission at its 37th session, provides that '"injured State' means, if the internationally wrongful act constitutes an international crime [and in the context of the rights and obligations of States under Articles 14 and 15], all other States. "13 This provision establishes that the commission 10 11

12 13

See supra ch. II (7) (v) on the law relating to reprisals. See [1976] 2 Y.B. Int'l L. Comm'n Pt. 2. p. 119, para. 60 (Commentary to Article 19), U.N. Doc.A/CN.4/Ser.A/1976/ Add.l (Pt. 2). See U.N. Doc. A/CN.4/330, reproduced in [1980] 2 Y.B. Int'l L. Comm'n Pt.l. [1987] 2 Y.B. Int'l L. Comm'n Pt. 2, at 25, U.N. Doc. A/CN.4/1985/Add.l (Part 2).

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of an international crime entails injury to all other States. Article 14 provides that an international crime entails all the legal consequences of an internationally wrongful act and ... such rights and obligations as are determined by the applicable rules accepted by the international community as a whole. Article 14(2) obliges every other State: a) not to recognize as legal the situation created by such crime; b) not to render aid or assistance to the State that committed the crime in maintaining the illegal situation; and c) to join other States in affording mutual assistance to carry out the duties of non-recognition already specified. Article 15 stipulates that an act of aggression counts as an international crime and that it entails the rights and obligations provided for in or by virtue of the UN Charter. In terms of legal consequences, the concept of international crime supplements the doctrine of State responsibility for ordinary internationally wrongful acts with recognition that third parties have the right to undertake countermeasures, and the obligation to take measures to re-establish the status quo ante the violation. 14 II

II

(ii) RELATED CONCEPTS

The concept of 'international crime' is parallel to, and reinforces, the inter-related normative development of obligations erg a omnes and jus cogens. All three concepts revolve around a fourth: the pivotal concept of the 'international community as a whole' consisting of the principal legal persons on the international plane. The rise of international obligations erga omnes and of customary international norms of jus cogens character is an important product of the post-WWII international legal order. An obligation erga omnes is an 14

However, while every State has a right to invoke responsibility for the commission of an international crime, this does not mean that each State may claim the same kind or measure of reparation. See Graefrath, Responsibility and Damages Caused: Relationship between Responsibility and Damages, 185 Hague Recueil at 57 (1984-11).

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obligation of a State towards the international community as a whole owed to every State. In the Barcelona Traction Case, obligations erga omnes were recognized as obligations differing in kind from other kinds of international obligations:

An essential distinction should be drawn between the obligations of a State towards the international community as a whole and those arising vis a vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erg a omnes . ... Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. 15 The Court underlined as the key element of obligations erga omnes the identity of the international community as a whole to whom obligations are owed. International legal norms of ajus cogens character have a peremptory status. Article 53 of the Vienna Convention on the Law of Treaties provides that: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 16

15

16

Barcelona Traction, Light and Power Co. Ltd. Case (Spain v. Belgium) I.C.J. Rep. 1970 para. 33. Art. 53 does not specify or enumerate the specific subject matter of a norm of jus cogens in concreto. The main element in this formal definition is that no derogation can be made from obligations prescribed by a peremptory norm.

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What is the relation among obligations erga omnes, jus cogens and 'international community as a whole'? The concept of the 'international community as a whole' is the pivotal concept relating as it does to the central elements of both obligations erga omnes and jus cogens as enunciated in the Barcelona Traction Case and in the Vienna Convention on the Law of Treaties, but 'obligation erga omnes' is not identical in meaning to 'jus co gens'. What is the relation between 'international crime' obligations erg a omnes, and jus cogens? 'International crimes' constitute breaches of obligations erga omnes ie. States are obliged to the international community as a whole to refrain from committing the breach. However, while the two concepts are related, 'international crime' is not equivalent to obligation erg a omnes. All international crimes constitute breaches of obligations erg a omnes, but not all breaches of obligations erg a omnes constitute international crimes. Sufficient illustration of this relation is furnished by Jimenez de Arechaga who points out that the international law of the sea contains obligations erga omnes the breach of which do not necessarily constitute international crimes. 17 As with obligations erga omnes, 'international crime' is not equivalent to 'jus cogens' although they are related categories and the ILC was careful to stress this in the Commentary to Article 19} 8 'International crimes' as a species of obligations erg a omnes related to jus co gens thus constitute compelling obligations owed by a State to the entire international community in contrast to purely bilateral obligations of States inter se. 19

17

18

19

Jimenez de Arechaga, International Law in the Past Third of a Cemury, 159 Hague Recueil at 274 (1978-1). See [1976] 2 Y.B. Int'l L. Comm'n Pt. 2. at 119, para. 62. U.N. Doc A/CN.4/Ser.A/1976/Add.1(Part 2). (Commentary to Art. 19). The I.L.C. cited the Barcelona Traction Case, I.C.J. Rep. 1970 evidencing recognition of obligations erg a omnes.

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The ILC has interpreted recognition by the 'international community as a whole', to mean neither unanimous recognition, "which would give each State an inconceivable right of veto" nor recognition "by some particular group of States, even if it constitutes a majority, but by all the essential components of the international community. "20 As Gaja points out, the precise relation between jus cogens, obligations erg a omnes, and international crimes will remain unclear until the content and scope of each norm develops with greater certainty and specificity. 21 (iii) QUESTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY

FOR SERIOUS HUMAN RIGHTS VIOLATIONS In the Draft Articles on State Responsibility, the ILC addressed itself to internationally wrongful acts entailing State responsibility, rather than to the responsibility of individuals. The concept of 'international crime' is not to be confused with 'crime under international law', the latter relating to responsibility of the individual, rather than to the State. Moreover, the ILC explained that the obligation to punish individuals in a personal capacity for wrongs which entail an international crime is not a form of international responsibility of the State nor does it necessarily exhaust the State's responsibility. Thus, there is no necessary relation between 'international crimes' and individual responsibility. 22 The ILC observed that the subject matter of the two regimes of international responsibility for crimes by States and crimes committed by

20

21

22

See [1976] 2 Y.B. Int'l L. Comm'n Pt. 2. at 119, para. 61. U.N. Doc A/CN.4/Ser.A/1976/Add.1(Part 2). (Commentary to Art. 19). See Gaja Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts, in International Crimes of State at 160 (Weiler, Cassese & Spinedi ed.:1989). [1976] 2 Y.B. Int'l L. Comm'n Pt. 2, at 104. para. 21. U.N. Doc A/CN.4/Ser.A/1976/Add.1(Pt. 2), (Commentary to Art. 19).

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individuals, coincide to the extent that the international community recognizes both categories to be of 'exceptional importance' as evidenced by the fact that many of the norms are norms of jus cogens status although these regimes are nonetheless separate. 23 The conclusion to be drawn from these elements of the ILC's position is that the normative content of 'international crime' relates to individual criminal responsibility only in respect of its subject matter, rather than in relation to the rights and obligations it confers or to the entities it legally binds. While Ago took the position that the question of individual responsibility lay outside the scope of the Draft Articles, Riphagen has expressed the opinion that individual responsibility might involve State responsibility by way of countermeasures. 24 Nevertheless, Riphagen maintained the ILC's earlier position that the scope of the Draft Articles should not extend to individual responsibility. Other treaties and draft treaties already concern individual responsibility. 25 In particular, the Draft Code of Offense against the Peace and Security of Mankind would provide individual responsibility for the commission of certain wrongful acts.

2. DRAFT CODE OF OFFENSES AGAINST THE PEACE AND SECURITY OF MANKIND (i) CONTENT RATIONEMATERIA£

In 1947 the UN General Assembly requested the ILC to formulate the Nuremburg Principles and to prepare a Draft Code of Offenses against

23 24

Id. See further Spinedi, International Crimes of State: the Legislative History, in International Crimes of State at 91 (Weiler, Cassese & Spinedi ed.: 1989).

25

Id.

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the Peace and Security of Mankind. 26 A text of the Draft Code was submitted in 1951 followed by a revised version in 1954. In 1957, the UNGA decided that the ILC should defer further work on the Draft Code until a definition of aggression was developed. 27 On December 10, 1981, the UNGA adopted Resolution 36/106 which invites the ILC to resume its work on the elaboration of the Draft Code of Offenses against the Peace and Security of Mankind and to take into account the results of progressive development of international law since the Draft Code was adopted in 1954. In the 1954 Draft Code, offenses against the peace and security of mankind were viewed as comprising war crimes, crimes against peace and crimes against humanity as defined in the Nuremburg Charter. 28 In his Third Report, Mr. Thiam, Special Rapporteur on the Draft Code explained that the first part of the Code would deal with 1) the scope of the Draft Articles, 2) definition of an offence against the peace and security of mankind, and 3) general principles governing the subject. The traditional offenses of crimes against peace, war crimes and crimes against humanity would be reviewed in the second part. 29 Article 3 provides that Any individual who commits an offence against the peace and security of mankind is responsible therefor and liable to punishment. Article 4 provides for the principle of 'aut dedere aut punire' without prejudging the establishment of an international crimjnal jurisdiction. Article 10 provides for the responsibility of the superior, and Article 11 for the principle that the official position of the perpetrator does not relieve him or her of criminal responsibility .30 11

II

26

27

28 29 30

U.N.G.A. Res. 177 (II) of November 21, 1947. U.N.G.A. Res. 1186 (XII) of December 11, 1957. Reaffirmed in U.N.G.A. Res. 174 (A/180) 1948 and reformulated by the I.L.C., see [1950] Y.B. Int'l L. Comm'n Pt. II, 195, U.N. Doc. A/CN.4/Ser.A/1950. [1985] 2 Y.B. Int'l L. Comm'n Pt. 1 at 64. para.4. U.N. Doc. A/CN.4/SER.A/1985/Add.1(Pt. 1). [1987] 2 Y.B. Int'l L. Comm'n Pt. 1, U.N. Doc. A/CN.4/1987/Add.1(Part 1).

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The Commentary to Article 1 states that a 'crime against peace and security' is characterized by its severity (ie. in its cruelty, atrocity or barbarity), by the extent of its effects (whether it involves a great number of victims), or by the intention of the perpetrator. Thiam distinguished the concepts of 'international peace and security' and 'peace and security of mankind' thus: The first expression is synonymous with non-belligerence. It refers to peaceful relations between States, each of which avoids behaviour likely to endanger international peace and security. The expression 'peace and security of mankind', for its part, encompasses a wider terrain. It goes beyond relations between States. It covers not only acts committed by one State against another, but also acts committed against peoples (violations of the right to self-determination, systematic violations of human rights), against populations (violations of humanitarian law) or against ethnic groups (acts of genocide), etc. 31 The two concepts are not identical but are linked by virtue that both refer to especially grave international obligations. Members of the ILC debated whether colonialism, apanheid, economic aggression and serious damage to the human environment should be included within the scope of the Draft Code in addition to the crimes already enumerated. 32 Some members thought that drug trafficking should be included within the concept of 'crimes against humanity'. 33 It was also proposed that trafficking in women, children

31

32

33

Arts. 5 to 8 provide for the non-applicability of statutory limitations, fair trial guarantees, the principle of non bis in idem, ie. no one shall be prosecuted twice for the same deed, and for non-retroactivity. Art. 9 provides for exceptions to the principle of responsibility. [1985] 2 Y.B. Int'l L. Comm'n Pt. 1 at 71-72. U.N. Doc. A/CN.4/SER A/1985/Add.1 (Pt. 1). [1986] 2 Y.B. Int'l L. Comm'n Pt. 2 at 41 para.74. U.N. Doc. A/CN.4/SER. A/1986/Add.l (Pt. 1). See Rep. Int'l L. Comm'n on the work of its forty-first sess. (May 2 - July 21

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and slavery should be included as a 'crime against humanity'. 34 In the 1989 session some members contended that the words 'inter alia' rather than the words 'in particular' would more clearly indicate the nonexhaustive nature of the scope of offenses against the peace and security of mankind. 35 The connection between 'international crime' of Article 19 of the Draft Articles on State Responsibility, and 'offenses against the peace and security of mankind' in the Draft Code, is enunciated in Thiam's Third Report. Article 19(3)(c) of the Draft Articles on State Responsibility refers to 'a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being' as constituting an international crime. Nevertheless Thiam argued that a 'crime against humanity' does not arise only out of mass action involving large numbers of victims and "... an attack on a single individual may constitute a crime against humanity, provided that it has a specific character which shocks the human conscience. "36 According to Thiam, serious violations of international law may be arranged in a pyramid according to their degree of seriousness and the 'more important the subject-matter, the more serious the transgression.' At the top of the pyramid are the principles of international peace and security, the right of self-determination of peoples, human rights and preservation of the human environment. 37

34

35

36

37

1989) at 170 para. 205. G.A. Official Records Supp. No. 10 (A/44/10). [1986] 2 Y.B. lnt'l L. Comm'n Pt. 2, 46 para. 100-102. U.N. Doc. A/CN.4/SER.A/1986/ Add.1 (Part 2). Rep. Int'l L. Comm'n on the work of its forty-first sess. (May 2 - July 21 1989), 143 para. 122. G.A. Official Records Supp. No. 10 (A/44/10). Fourth Rep. on the Draft Code of Offenses against the Peace and Security of Mankind, [1986] 2 Y.B. Int'l L. Comm'n Pt. 1, 56, para. 13, U.N. Doc. A/CN.4/SER.A/1986 /Add.1 /(Pt. 1). [1985] 2 Y.B. Int'l L. Comm'n Pt. 1, 70-71. para. 61, U.N. Doc. A/CN.4/SER.A/1985/Add.1(Part 1).

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(ii) CONTENT RATIONEPERSONAE

The Special Rapporteur noted that the consensus in the Sixth Committee of the UNGA was that the Draft Code should cover offenses committed by individuals only. 38 As early as 1981, the German Democratic Republic proposed that individual criminal responsibility should be a basic principle of the Draft Code, and that it should not affect State responsibility. The GDR also proposed that an express provision to this effect be included in the Code. 39 Should the Draft Code cover private individuals or only individualorgans of the State? Thiam argues that crimes against humanity, genocide, apanheid, can only be acts of State and cannot be carried out by private individuals. However, the proliferation of inexpensive and easily produced chemical weapons may one day come within the possession and use of individuals who are not officials of a State yet are capable of committing genocide. There have been several instances of well-trained, well-armed mercenaries threatening the political independence of small States. It is not inconceivable that private individuals may gain control of instrumentalities necessary to carry out what today is viewed as an international crime which only States are capable of committing. A related issue which needs to be addressed is complicity in crimes carried out in the main by State organs such as genocide or crimes against humanity by private individuals acting out of personal motive. For these reasons, the ILC must be careful not to narrow the scope of the Draft Code too far. It seems necessary that the ILC examine more closely the question of complicity in order to cover these areas of international responsibility comprehensively.

38 39

ld. at 64, para. 2. See [1982] 2 Y.B. Int'l L. Comm'n Pt.l, 277 para. 8, U.N. Doc. A/CN.4/SER.A/1982/Add.l(Pt. 1).

CHAYI'ER VI THE POSITION OF THE INDIVIDUAL IN INTERNATIONAL LAW

The State is the primary subject of international law. States have exclusive procedural capacity before the International Court of Justice. 1 Even the term 'international law' 2 implies law between States only. However the emergence of international human rights has brought the individual into greater contact with international law. As discussed in Chapter Il(5), the Nuremburg trials refuted the extreme positivist view that international law could apply to States only. It also demonstrated that individuals could be held liable for crimes under international law and could be punished for them in a personal capacity. This Chapter relates the position of the individual in international law to the emergence of a general international legal rule of individual responsibility for serious human rights violations in a general way. Consideration of the position of the individual in international law in legal doctrine and practice naturally revolves around the question as to which entities may be subjects of international law. International law has

1 2

Art. 34(1) of the Statute of the I.C.J. provides that "Only states may be parties in cases before the Court. " 'International law' was first coined by Jeremy Bentham in An Introduction to the Principles of Morals and Legislation, 1780.

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become increasingly applicable to non-State entities such as international organizations and in certain circumstances, the individual. The question of the international legal personality of the United Nations Organization 3 was the principal legal issue in the Reparations for Injuries Suffered in the Service of the United Nations Case. The International Court of Justice held that a 'subject of international law' denotes an entity "capable of possessing international rights and duties, and ... [having] the capacity to maintain its rights by bringing international claims. "4 This dictum does not define what kind of entity may be a legal person or what rights and duties it might have. Implied in the definition however, is that the conditions of legal personality must derive from a rule which provides criteria for recognition of legal personality. The majority opinion observed that: The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights and their nature depends upon the needs of the Community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective action of States has already given rise to instances of action upon the international plane by certain entities which are not States. The formal concept of 'legal person' is therefore specific to the legal system in which it is situate and is capable of evolution over time. Evolution of legal subjectivity in international law is a function of the recognized needs of the international community and of the degree of rights and duties that an entity may be conferred over time, not necessarily the other way around. In other words, entities are not necessarily recognized as possessing international legal subjectivity in

3

See Art. 104 of the Charter of the United Nations.

4

Reparations For Injuries Suffered in the Service of the United Nations Case (Adv. Op.), 1949 I.C.J. Rep. 174.

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toto, but as acquiring the necessary elements of legal capacity from which it may be inferred that an entity is a subject of law. The emergence of a general international legal norm providing individual responsibility for serious human rights violations would not be possible if international law were wholly inapplicable to the individual or if international responsibility as a legal category applied only to States and not to the individual. In estimating the likelihood of a general rule emerging, it is therefore necessary to understand the position of the individual in international law in terms of the incidence in which the individual has been or is, a subject of international rights and duties and the extent to which the individual may bring international claims. Many publicists have expressed their opinion on the subjects of international law. It is therefore instructive to survey doctrinal positions in order to secure a theoretical appreciation of the position of the individual in international law. However to attempt to identify the position of the individual in international law simply by considering theory in abstracto would be pointless no matter how elegant theory may be. Ultimately, the test of a good theory is the degree to which it accounts for existing facts (ie. relevant instances of subjectivity) which can be verified or falsified, and its ability to predict future trends. For this reason, instances of the individual having legal capacity are considered and then doctrinal perspectives attempting to explain them are discussed.

1. INSTANCES OF INDIVIDUAL LEGAL CAPACITY IN INTERNATIONAL LAW

The classic view is that only States are capable of exercising legal rights and duties in international law and that States are therefore the sole subjects of international law. This view became less plausible in the twentieth century because certain treaties concluded after WWI and

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WWII conferred legal capacity upon the individual to maintain international claims. In several of the minorities treaties concluded after World War I, members of the Council of the League of Nations were authorized to raise violations of the obligations of States bound by the treaty before the Council. In cases where a dispute involving the obligation to protect minorities could not be resolved in this manner, the dispute could be referred to the PCIJ. There were also procedures whereby a rapporteur could study, report and attempt settlement by way of friendly negotiation. 5 However the individual, far from being a subject of international law, had no role at all in this procedure.

A variety

of

petition systems developed under the minorities and mandates systems. Petition systems were established which applied to inhabitants in Upper Petition Silesia, the Free City of Danzig, the Saar, and Trieste. arrangements under the minority treaties were limited in application to the specific territories bound by treaty and covered such rights as the right to educate children in the language of their parents and the right to free exercise of religion etc. After 1945 the right to petition was conferred upon individuals inhabiting South-West Africa and to those living in certain areas under United Nations Trusteeship. The Treaty of Versailles provided jurisdiction for mixed arbitral tribunals to hear claims brought by the individual. Similarly, the 1922 Polish-German Convention established the Arbitral Tribunal of Upper Silesia which conferred upon the individual the right to bring certain international claims. 6 In the case of Steiner and Gross v. Polish State 7 the right of the individual to bring a claim was upheld even though the

5

6 7

See Norgaard, The Position of the Individual in International Law 109-116 (1962). See Korowicz, 1he Problem of the International Personality of Individuals, 50 Am. J. Int'l L. 533 (1956). 4 Ann. Dig. Pub. Int'l L. Cases at 291 (1927-28).

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claimants were nationals of the respondent State. In Jurisdiction of the Couns of Danzig 8 the PCU held that [i]t cannot be disputed that the very object of an international agreement . . . may be the adoption . . .of some definite rules creating individual rights and obligations and enforceable by national courts. Thus, within the very narrow context of minority rights provided for in the treaty concerning Upper Silesia, the individual was recognized to have legal capacity in international law. In 1927, the League of Nations created an administrative tribunal which had competence over claims by civil servants of the League of Nations and the International Labour Organisation, which could be brought against each organization respectively. Most of the major international organizations have adopted Staff Regulations which provide international civil servants with rights and duties concerning, inter alia, terms and conditions of employment and staff discipline. By special agreement, civil servants from such organizations as CERN, FAO, GATT, ITU, UNESCO, and WHO, may exercise similar rights and obligations as ILO employees. There are also specific rules and regulations for employees of the European Communities and of the International Court of Justice. Thus, individuals employed as civil servants possess a certain measure of rights, duties and procedural legal capacity in international law. The Second World War period saw the collapse of the League of Nations system. Legal rights, duties and capacities as provided for under the minority rights treaties were superceded by universalist human rights guaranteed to the individual regardless of his or her membership in a political, ethnic, religious or racial group. In post-1945 international law, instances of individual legal capacity are most evident in instruments protecting human rights. 9 The right of II...

II

8

9

Jurisdiction of the Courts of Danzig (Adv.Op.), 1928 P.C.I.J. Ser. B, no.15. See generally Trindade, Coexistence and Co-ordination of Mechanisms of International Protection ofHuman Rights, 202 Hague Recueil1-435 ( 1987 -II) for

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the individual to submit communications concerning human rights violations to UN bodies has been evolving since 1947. In 1947, the Economic and Social Council of the United Nations passed Resolution 75(V) 10 authorizing the individual to submit communications concerning human rights but stipulates that the Commission on Human Rights 'has no power to take any action in regard to any complaints concerning human rights'. Resolution 76(V) does the same with regard to the status of women. In 1959, ECOSOC passed Resolution 728(F)(XXVII1) 11 setting forth procedures for the compilation and consultation only by members of the Commission on Human Rights of communications received. It also authorizes the Commission to ask Governments to reply, but stipulates that the Commission on Human Rights is not empowered to take any action. 12 In 1967 by Resolution 8 (XXIII), 13 the Commission on Human Rights requested ECOSOC to authorize the Commission and the Subcommission on Prevention of Discrimination and Protection of Minorities 'to examine information relevant to gross violations of human rights' disclosed in communications received, and to undertake study and investigation of situations revealing a consistent pattern of human rights violations. By Resolution 1235 (XLII), 14 ECOSOC authorized the Commission on Human Rights and the Subcommission 'to examine information relevant to gross violations of human rights and fundamental freedoms' and to 'make a thorough study of situations which reveal a

10 11

12 13

14

a thorough treatment of procedures in international human rights mechanisms. Adopted August 5, 1947. Adopted July 30, 1959. Para. 2(d) and (f) of Res.728 F (XXVIII). March 16, 1967. Adopted June 6, 1967.

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consistent pattern of violations of human rights and fundamental freedoms' and to make recommendations. In 1970, Resolution 1503 (XLVIII) 15 was adopted setting forth procedures for dealing with communications relating to human rights violations and authorizing the Commission to request replies from Governments concerning communications revealing 'a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms ... ' These procedures aim at the investigation of violations of the rights and freedoms enshrined in the Universal Declaration on Human Rights, 1948 in terms of particular situations or patterns of human rights violations as a whole. Individual communications serve as a source of information about large-scale human rights violations. The Commission on Human Rights and the Subcommission on Prevention of Discrimination and Protection of Minorities are not authorized to investigate individual communications on an individual basis under these procedures. The Optional Protocol to the International Covenant on Civil and Political Rights 16 establishes a mechanism whereby individual complaints may be examined on an individual basis. Unlike the competence of the UN Commission on Human Rights to receive petitions, which derives from UN Resolutions, the Optional Protocol is a treaty, rather than a resolution. The Optional Protocol creates binding obligations whereby a State may recognize 'the competence of the [Human Rights] Committee to receive and consider communications from individuals' of the jurisdiction of States which have acceded to both the Protocol and the International Covenant on Civil and Political Rights.

15 16

Adopted May 27, 1970. Adopted by U.N.G.A. Res.2200 A (XXI) of Dec. 16, 1966, entered into force, Mar. 23, 1976.

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The International Convention on the Elimination of All Forms of Racial Discrimination, 17 authorizes the Committee on the Elimination of Racial Discrimination to receive communications from individuals or groups of individuals where the State Party to the Convention has recognized the competence of the Committee to do so. 18 Under Article 22 of the UN Torture Convention! 9 individuals may submit a petition to the Committee against Torture concerning violation of the Convention, where the State having jurisdiction over the individual has recognized the competence of the Committee to receive individual petitions. 20 The Committee on Freedom of Association, established by the Governing Body of the ILO in 1951, receives complaints from workers' organizations, employers' organizations and Governments concerning violation of the right to freedom of association as that right is provided for in various instruments. 21 Under these procedures, over 1,400 cases have been examined. A case may be forwarded to the Fact-Finding and Conciliation Commission on Freedom of Association where a State has not ratified the Convention. Article 25 of the European Convention on Human Rights authorizes the European Commission on Human Rights to receive petitions from individuals or groups of individuals claiming to have suffered a violation

17

18 19

20 21

Adopted by U.N.G.A. Res. 2106 A (XX) of Dec. 21, 1965, elltered into force Jan. 4 1969. See ch. III (5). Art. 14. Adopted by consensus by the U.N.G.A. Dec. 10, 1984, opened for signature Feb. 4, 1985, entered into force June 26, 1987. See further supra ch. III (3) on torture. See Conv. No.87, 1948, Conv. No.84, 1947, Conv. No.98, Conv. No.135, 1971, Conv. No.141, 1975, Conv. No.144. 1976, Conv. No.151, 1978, Conv. No.154, 1981, and Recommendations 91, 113, 130, 143, 149, 159, and 163. See also Wolf, /LO Experience in the Implementation of Human Rights, 10 J. Int'l L. & Econ. 599-625 (1975).

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of a right provided for in the Convention. In the Lawless Case 22 it was held that although the individual applicant had no authority to actually appear before the Court, his views could be represented by the Commission, if the Commission was so invited by the Court. In the Vagrancy Casei 3 the Court held that the main delegate of the Commission was entitled to be assisted by the applicant's lawyer during oral hearings and could address the Court. As of January 1, 1983, the Revised Rules of the Court authorize the President of the Court to give leave to an applicant to present his or her own case and to be assisted if necessary, by an advocate. 24 By Article 173 of the EEC Treaty, any 'natural or legal person' may, under certain conditions, institute proceedings against a decision or regulation which may affect his or her rights. Article 172 of the EEC Treaty authorizes EEC organs to provide the individual with the right of appeal. The American Convention on Human Rights confers upon 'any person or group of persons, or any nongovernmental entity legally recognized in one or more member states' of the Organization of American States the right to lodge petitions with the Inter-American Commission and Court of Human Rights. 25

22

23 24

25

Lawless Case (Merits) (against Ireland), 1960 Y.B. Eur. Conv. on Hum. Rts. (Eur. Ct. of Hum. Rts.) (Judgment) at 324. Vagrancy Cases (against Belgium), 1971 Y.B. of Hum. Rts., Ser. B, Vol. 12. See Muchlinski, The Status ofthe Individual Under the European Convellfion on Human Rights and Contemporary International Law, 34 Int'l & Comp. L. Q. 376, 379 (Apr.1985). See also Art. 44 of the Am. Dec. Rts. Duties Man, O.A.S. Res. XXX adopted by the Ninth Int'l Conf. of American States, Bogota, 1948, and ch. II of the Regs. Inter-Am. Comm'n Hum. Rts., approved by the Comm'n at its 660th meeting, 49th Sess., Apr. 8, 1980. See Robertson, The American Convelltion on Human Rights and the European Convention: A Comparative Study, 29 Eur. Y.B. 50-78 (1981).

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Individual communications received by UNESCO which fall within its mandate and concern human rights violations, are considered by a Committee of the Executive Board of UNESC0. 26 Under the African Charter of Human and Peoples' Rights, 27 individual communications may be received by the African Commission on Human and Peoples' Rights, and by Article 58, where " ... it appears that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples' rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases". 28 As explored in Chapters II and III, the individual was held responsible under the Nuremburg Charter for war crimes, crimes against peace and crimes against humanity. Slave-trading, genocide, apanheid and torture are other acts for which the individual may be subject to responsibility in international law. Individuals are also responsible in international law for certain acts not related to human rights such as piracy, the unlawful seizure of aircraft, 29 and hostage-taking. 30 To sum up, prior to the Second World War, the legal capacity of the individual was limited to individuals in the employ of an international organization, or those living within the jurisdiction of a particular State bound by a minority treaty. Although the right of individuals to submit petitions in the context of the minority treaties represented only a very

26

27

28

29

30

See paras. 10-14 of Rep. of the Working Party of the Exec. Bd. (104 EX/3), adopted at the 1978 Spring Sess. Adopted June 26-28, 1981, entered into force Oct. 21, 1986. See Arts. 55-59. See Nowak, The African Charter on Human and Peoples' Rights, 7 Hum. Rts. L. J. 399-402 (1986), and Van Boven, The Relations Between Peoples' Rights and Human Rights in the African Charter, !d., 183-194. See the Hague Conv. for the Suppression of Unlawful Seizure of Aircraft 1970, entered into force 1971, 10 Int'l L. Materials 133 (1971). See lnt'l Conv. against the Taking of Hostages 1979, 18 Int'l L. Materials 1456 (1979).

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weak form of legal capacity, it does signify the beginnings of international recognition that the individual victim of a human rights violation should be able to draw the attention of international organs to his or her plight. Following World War II, several human rights instruments, including UN General Assembly Resolutions, created procedures for the reception and investigation of individual communications alleging human rights violations. Some treaties accord a right of petition to international complaints mechanisms.

2. DOCTRINAL APPROACHES

(i) CLASSIC DOCTRINE: GROTIUS AND VATTEL In the natural law theory of Grotius, the individual human being is a focal point of all law, including the law of nations. Successors of Grotius, most notably Vattel, placed much greater emphasis on the State as holder of international legal rights and obligations while presuming the validity of natural law. 31 In Vattel's theory of international law, individuals are not considered direct subjects of the law of nations. Vattel postulated a dichotomy between natural law which governs the individual in national law, and the law of nations which derives from the law of nature, but applies only to States in their mutual relations. 32 In this view, the individual could assert absolute natural rights against the State at the national level, but is merely an object, rather than a subject of the law of nations. 33 The dichotomy between international law in 31

32 33

See Remec, The Position of the Individual in International Law according to Grotius and Vattel1960. Id., at 199. See Cowles, The Impact of International Law on the Individual, Am. Soc. Int'l Proc. 71-85 (Apr.24-26, 1952) for a summary of the views of Ayala, Grotius, Zouche, Rachel, Textor, Pufendorf, Vattel, Kent, Wheaton, Twiss, Lieber,

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which only States are subjects, and national law, forms a major premise in the influential school of legal positivism as elaborated by Hobbes, Bentham, Austin, and H.L.A. Hart. (ii) KELSEN

Kelsen' s monistic concept of law arranges international law and municipal law in one hierarchy with international law at the top, rather than as two separate planes. Kelsen's theoretical point of departure is the individual human being, rather than the State: Like all law, international law, too, is a regulation of human conduct.

It is to men that the norms of international law apply; it is against men

that they provide sanctions; it is to men that they entrust the competence of creating the norms of the order. 34

Kelsen takes procedural capacity ie. the technique of rights enforcement rather than its substance, to be the most critical criterion of subjectivity. Rights enforced before an international tribunal may be followed only by an order for reparation against an uncooperative State since, says Kelsen, there are no other means of securing compliance. An international right enforced before a municipal tribunal, on the other hand, may involve powerful executive, judicial and police organs of the State authorized to secure compliance. Kelsen opines that although nothing in international law precludes the individual from being the direct subject of rights, obligations and responsibilities ".. .individual subjectivity may be so only as an exception and not as a general rule. "35 International law would have to become like municipal law requiring the appearance of a world

34 35

Lorimer, Maine, Oppenheim, and Pollock. Kelsen, Principles of International Law: Second Edition 180 (1966). /d.

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State for individual subjectivity under international law to be the general norm, concludes Kelsen. (iii) SOVIET DOCTRINE Traditional Soviet doctrine recognizes international law as law, but contends that only States are subjects. International law is "... the aggregate of rules governing relations between States ... "36 The notion that non-State entities may be subjects conflicts with this definition. In modern bourgeois legal writings, a number of scholars (Jessup, Lauterpacht, Scelle etc.) favour the extension of the range of subjects of International Law to include international organisations and even physical persons. But this contradicts the very essence of International Law as interstate law whose purpose is to regulate the relations between States ... No international organisation, still less physical persons, can be subjects of International Law. 37 This is not to posit that the individual may not be held responsible under international law. In this traditional view, the individual may be held responsible under international law as in the Nuremburg and Tokyo Military Tribunals, but the individual is not recognized to be a full subject of international law. 38 Movement away from this view of subjectivity in Soviet doctrine is evident in the writings of Tunkin. Tunkin acknowledges that "[n]ew subjects of international law have emerged - international intergovernmental organizations and also peoples fighting for their independence." He reiterates that regarding the individual, there "... has also

36

37

38

Academy of Sciences of the USSR Institute of Law, International Law: A Textbook for Use in Law Schools 7 (1960). Id. at 89. Id. at 90.

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emerged a new important institute of international law: the responsibility of individuals for crimes against humanity, as they have been defined in the Statute and Judgement of the International Military Tribunal at Nuremburg. "39 (iv) OTHER VIEWS In the Position of the Individual in International Law, 40 Norgaard surveys the opinions of several highly qualified publicists. According to Verdross, an individual is a subject only if it is possible for him or her to be directly responsible. 41 Guggenheim, on the other hand sees a distinction between direct and indirect subjects. 42 Spiropoulus, who sees legal subjectivity as a definitional rather than empirical matter, contends that a subject of law is 'that which the judicial order addresses immediately with its rules'. 43 For Korowicz, it is sufficient for the individual to have only a right to petition to qualify as a subject. 44 Garcfa-Amador disintegrates the concept of 'legal subject' into subject of rights and subject of proceedings and concludes from the fact that international law protects rights and interests of non-State entities, that States are no longer the sole subjects of international law. 45 According to Leon Duguit (followed by Georges Scelle in international law), law

39

40

41

42 43

44

45

Tunkin, International Law in the International System, 4 Hague Recueil 40 (1975). See Norgaard, The Position of the Individual in International Law at 34-77 (1962). See /d. 44-46. See Guggenheim, Traite de droit international public T. I-II Geneve 1953. See Spiropoulos, L 'individu en droit international, 30 Hague Recueil 195-269 (1929-IV). See Korowicz, The Problem of the International Personality of Individuals, 50 Am. J. Int'l L. 533-562 (1956). Garda-Amador, State Responsibility: Some New Problems, 94 Hague Recueil (1958-II).

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applies to conscious beings only rather than to abstract entities. Law can therefore apply only to individuals, which can be subjects of law, not to States, which cannot be subjects of law. 46 Little consensus is to be found among these authors on the position of the individual in international law or more significantly, as to what

criteria determine individual legal subjectivity in international law. This lack of consensus in the doctrine on both the definition of 'subject of law', and on what criteria to apply in determining whether the individual is a subject suggests two things: first, the concept of 'subject of law' is of limited utility in determining a priori which entities may become subjects of law and which may not as 'subject of law' is itself a formal concept; and secondly, the better way to estimate the position of the individual is to draw a tentative hypothesis on the basis of empirical observation of instances of legal capacity independent of fixed notions of international law or legal subjectivity. (v) SOME EMPIRICAL APPROACHES TO THE QUESTION Rather than attempt to deduce convenient explanations from questionable axioms, several commentators take an empirical approach to explain the incidence whereby non-State entities possess a measure of rights, duties and procedural capacity in international law. These explanations begin by acknowledging the existence of instances of individual legal capacity. According to Oppenheim, since " ... the Law of Nations is primarily a law between States, States are, to that extent, the only subjects of the Law of Nations." Oppenheim allows that individuals may be granted subjectivity by treaty and he speculates that non-State entities eventually may be considered normal subjects of international law. 47 The normal

46 47

Duguit, Traite de Droit Constitutionnel: Second Ed. at 319. Oppenheim, The Law of Nations: Eighth Edition 636 (1963).

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position of the individual is as an object, rather than subject, of international law. 48 According to Jessup, international law is: ... law applicable to States in their mutual relations and to individuals in their relations with States. International law may also, under this hypothesis, be applicable to certain interrelationships of individuals themselves, where such interrelationships involve matters of international concern. 49 Taken out of context, this seems to suggest that Jessup recognizes the individual as a direct subject of international law. But he goes on to opine that as long as the international community is composed of States, a rule of law will not apply directly to the individual except by treaty or 'as laid down by an international authority deriving its power from States' .50 Lauterpacht also points to the procedural capacity of the individual under certain treaties to support the conclusion that "[p] ractice has abandoned the doctrine that States are the exclusive subjects of international rights and duties. "51

3. RELATION OF INDIVIDUAL SUBJECTIVITY AND INDIVIDUAL RESPONSIBILITY

Reducing the individual to a 'beneficiary' of international law is imprecise and misleading since the individual may, under certain

Id. at 639. Jessup, A Modem Law of Nations 17 (1948). so Id.

48

49

51

Lauterpacht, Survey of International Law in Relation to the Work of Codification of the International Law Commission (UN Doc. A/CN.4/1, Rev.1, Feb.lO, 1949).

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circumstances, pursue rights at his or her discretion without having to pass through the State. For the same reason, it is misleading to characterize the individual as an 'object of international law' simpliciter because the term 'object' implies a passive as opposed to active, capacity. Yet neither is the individual a 'subject of international law' simpliciter. Even if it is assumed that the individual is a real entity and the State an abstraction or fiction, the rules of international law (perhaps as fictitious as the State) apply primarily to States, rather than individuals. The daily functioning of international law is not explicable without acknowledgment that States are its primary subjects. At present, the individual may exercise legal capacity under international law under treaty only, requiring the agreement of States. This is not to posit that the individual is not a 'real' subject; the effectiveness of legal capacity depends not in some 'essential' or 'intrinsic' nature of international law, but upon the practice and norms which determine its incidence. There appears to be no reason why the individual is not a normal subject other than there does not exist a rule providing such general recognition in international law. There is nothing which prevents the individual from being held responsible in international law for serious human rights violations on a general basis. Legal subjectivity is likely to develop in relation to the individual in such a way as to accommodate the distinct rights, duties and legal capacities which distinguish the individual from the State in international law. The distinct kinds of legal capacities which apply to the individual derive from the obvious fact that the individual differs from the State in magnitude and in kind. With regard to the individual as a subject of international law, it is likely that requirements different from those which apply to States, are likely to become recognized as suited to the needs and values of the international community. This is amply demonstrated by the way in which the international community has turned its attention to the formulation of rules of individual responsibility for piracy, slave-trading,

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and later, rules of individual responsibility for serious human rights violations. The Nuremburg trials were conducted on an ad hoc basis notwithstanding breach of the principles of nullum crimen sine lege and nulla poena sine lege when the atrocities of World War II made clear that rules exposing the individual for certain classes of crimes were urgently needed. Other rules of international law imposing individual responsibility emerged out of recognition of these needs.

CHAPTER VII EMERGENCE OF A GENERAL RULE OF INDIVIDUAL RESPONSIBILITY FOR SERIOUS HUMAN RIGHTS VIOLATIONS

In this Chapter, it is argued that a general rule of individual responsibility for serious human rights violations may emerge if individual responsibility for war crimes, crimes against peace, crimes against humanity, 'grave breaches' in the context of the 1949 Geneva Conventions, genocide, torture, and slavery is implemented to a sufficient degree. It is also argued that several profound changes in the evolving structure of international law enhance the prospects that the necessary level of implementation for the emergence of this general rule will come about. Thus far the present enquiry has identified and evaluated specific norms of individual responsibility in international law for serious human rights violations, as well as patterns in their implementation. Efforts of the International Law Commission at codification and progressive development of international responsibility and relevant issues concerning subjectivity in international law have been explored. As discussed in Chapter I, the existence of specific rules on individual responsibility does not guarantee the emergence of a general rule. Specific rules, if implemented on a widespread and consistent basis presage emergence of the general rule. In order to understand how transition from specific

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rules to a generalized rule is possible, it is necessary to adopt a primarily synthetic approach comprising both inductive and deductive argument. First, it is argued inductively that the lex lata analyzed in Chapters II and III indicates the approximate content of the general rule as well as how it is likely to emerge as a rule with binding effect in international law. Second, it is argued deductively that general principles, structures and developments in international law indicate that even if the emergence of a general rule of individual responsibility for serious human rights violations takes a long period of time, that its eventual emergence in international law is likely.

1. SPECIFIC FACTORS ENHANCING PROSPECTS FOR EMERGENCE OF THE GENERAL RULE Owing to the dual character of law, the process of inferring inductively a general rule of individual responsibility for serious human rights violations from more specific rules in the lex lata, must address two questions: first, what attributes must the content of the emerging norm acquire in order for it to qualify as a norm of international human rights law?; and second, what conditions, in terms of the sources of international law, must the emerging norm fulfill before it would qualify as a valid norm of international law? The first question relates to the meaning of the emerging norm (scope, coverage, application), while the second relates to the way it may emerge as a legally binding norm of international law. (i) CONTENT OF THE EMERGING NORM

The content of the emerging general rule of individual responsibility for serious human rights violations would likely incorporate the prescriptive content of the Nuremburg Principles together with certain

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norms stipulating individual responsibility as provided for in multilateral human rights conventions examined in Chapter III. As the norms surveyed in Chapters II and III claim various levels of international recognition and differ widely in legal status, it is necessary to review them one by one to evaluate whether they are likely to be incorporated in the general rule. Norms providing individual responsibility for war crimes and crimes against humanity are well established and have been affirmed in the Nuremburg Charter, Geneva Conventions of 1949, Nuremburg Principles and the draft Code of Offenses against the Peace and Security of Mankind. Norms on individual responsibility for crimes against peace were completely new in 1945, beginning with the Nuremburg Charter, but they draw support in the Nuremburg Principles and in the draft Code of Offenses. In short, norms prohibiting crimes which stipulate individual responsibility as provided for in the Nuremburg Charter and as subsequently developed and affirmed, are the most well established norms on individual responsibility for serious human rights violations. They are therefore most likely to form part of the prescriptive content of the emerging rule. Of the peace-time human rights guarantees examined in Chapter III, most post-date World War II, and only some are well established so far. The 1948 UN Genocide Convention 1 represents the clearest instance in which norms established by the Nuremburg Charter and Judgment concerning individual responsibility for genocide, were formulated to extend to peace-time. The Genocide Convention has been widely ratified and the norms against genocide and individual responsibility for its commission form part of customary law and probably even of jus co gens. It is very likely that genocide would be covered by the emerging

1

UN Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

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international rule of individual responsibility for serious human rights violations. Norms stipulating individual responsibility for slavery are clearly part of customary international law, having been articulated in many international legal instruments and followed up by general State practice over a long period of time. Recognized by the international community as a serious human rights violation, slavery would probably be included within the coverage of the general rule. Much less clear is how norms providing individual responsibility for the commission for torture are likely to evolve in general international law. It is still too early to tell whether the 1984 UN Torture Convention 2 will be widely ratified by States, and if it is widely ratified, whether States will adhere to the obligations they undertook. On balance, and given time, it seems that individual responsibility for torture would probably become part of the emerging rule for two reasons: first, the categories of 'war crimes', 'crimes against humanity', and 'grave breaches', already provide individual responsibility for torture, inhuman and degrading punishment in war-time situations; and second, the entry into force of the UN Torture Convention signals an important step by the international community towards establishing individual responsibility for the commission of torture in peace-time. Therefore, if a firm rule of international law prohibiting torture develops in international law, it is likely to be covered also by the emerging general rule. Individual responsibility for apanheid is not likely to be covered by the emerging rule, although apanheid itself has been categorically condemned by the international community on numerous occasions. The rather ambiguous and overly broad formulation of individual responsibility for apanheid in the 1973 UN Apanheid Convention, 3 does

2

3

U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. U.N. International Convention on the Suppression and Punishment of the Crime

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not lend itself to consistent legal enforcement. Moreover, the Apartheid Convention has not been widely ratified. Furthermore, the Apartheid Convention was drafted to apply to the racist white minority regime of South Africa in particular, rather than to practices of severe or systematic discrimination in general. In South Africa itself, the days of the apartheid system seem to be numbered and there appear to be serious efforts under way at the peaceful dismantling of the apartheid system. The utility of norms on individual responsibility for apartheid may therefore be very limited. Overall, it is quite unlikely that the emerging rule of individual responsibility for serious human rights violations would include individual responsibility for apartheid. The approximate content of the emerging general rule can be stated as follows: Any person who commits, or is an accomplice in, any act amounting to a serious human rights violation in international law shall be responsible therefor and liable to punishment, notwithstanding that the act committed is not a crime under domestic law, and notwithstanding that the official was a Head of State or public official, or that he or she acted pursuant to order of his or her Government or to order of a superior. 'A serious human rights violation in international law' means any violation of a human right for which international law stipulates individual responsibility, including the following acts: war crimes, crimes against peace, crimes against humanity, 'grave breaches' as defined in the 1949 Geneva Conventions, genocide, torture, inhuman or degrading punishment and slavery. If justice so requires, the fact that an act committed for which there is individual responsibility in international law was committed pursuant to an order from a Government or a superior may be considered in mitigation of punishment. Any individual charged for having committed a serious human rights violation has the right to a fair trial on the facts and law.

of Apartheid, 1973.

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The precise content of the rule depends on how the definition of the crimes enumerated evolve over time and also on which additional human rights violations may gain recognition from the international community as sufficiently serious to warrant individual responsibility in international law such that it may be included in the general rule. In order to be enforced without offending the principles of nullum crimen sine lege and nulla poena sine lege, the rule must be sufficiently clear and precise by the time of its emergence. The content of the emerging rule as estimated above may be evaluated in terms of criteria expressed in the form of guidelines by the United Nations General Assembly concerning the formulation of human rights guarantees in international law. In 1986, the United Nations General Assembly adopted Resolution 411120 entitled 'Setting International Standards in the Field of Human Rights '4 which invites Member States and UN bodies to bear in mind specific guidelines when human rights standards are being formulated. Article 4 of Resolution 41/120 states that international instruments in the field of human rights should, inter alia: (a) (b)

(c) (d) (e)

4

Be consistent with the existing body of international human rights law; Be of fundamental character and derive from the inherent dignity and worth of the human person; Be sufficiently precise to give rise to identifiable and practicable rights and obligations; Provide, where appropriate, realistic and effective implementation machinery, including reporting systems; Attract broad international support; ...

Adopted without vote, Dec. 4, 1986 at the 97th plenary meeting of the U.N.G.A.

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These criteria, though themselves approximate and a matter of degree, indicate a priori and in general terms when a human rights standard has been sufficiently formulated such that it may emerge in international law. It must be stressed that Resolution 41/120 addresses certain issues relating to content, not those concerning legal validity. Eligibility of a norm does not guarantee its emergence. Resolution 41/120 specifies the prescriptive elements that any norm of international human rights should contain as it is being formulated, for it to be considered capable of emerging in international law. The content of the emerging rule as estimated above, would almost certainly meet the criteria expressed in Resolution 411120, since the general rule would largely incorporate specific rules already in existence (which are rules already recognized as legally valid). It is consistent with the existing body of international human rights law and it derives from the inherent dignity and worth of the human person ie. it concerns human rights. The Nuremburg Judgment and cases in domestic law indicate that enforcement of individual responsibility in international law for serious human rights violations is practicable and feasible. (ii) POSSIBLE LEGAL SOURCES OF THE EMERGING RULE

As the general rule stipulating individual responsibility for serious human rights violations has not yet emerged in international law, it is possible only to extrapolate what its source and legal validity are likely to be. Thus far, implementation of norms in international law stipulating individual responsibility for serious human rights violations has been very sparse, perhaps because these norms taken together are complex and chaotic; they developed unsystematically over a long period of time and originated in many legal sources. For example, customary international norms against slavery prescribe implementation by national organs, a technique reflecting the international legal system of the period in which

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these norms were elaborated. Norms against genocide, however, originated within the context of the newly formed post-WWII international legal order when the UN human rights system was still in its infancy. Conventional norms against genocide rely on national implementation, but foresee the eventual creation of an international criminal court to prosecute individual offenders. In contrast to these implementation procedures, the United Nations Torture Convention, adopted in 1984, authorizes a special Torture Committee to supervise the Convention's provisions on individual responsibility. Creation of this mechanism highlights contemporary recognition for human rights implementation through UN supervisory organs. The content, legal status and effect of the norms reflect, and are to a certain extent constrained by, the particular circumstances and times in which the prescriptive content emerged and legal recognition was evinced. However, the general trend in international human rights law towards implementation, rather than mere elaboration of human rights norms shows greater willingness on the part of States to put into practice human rights obligations to which they have acceded. This implementation has taken the form of UN supervisory organs with competence, albeit optional competence, over acts committed by the State. As international human rights continues to be rapidly elaborated and implemented, the formulation of individual responsibility is likely to be more comprehensive and more effective than in the past. An ad hoc approach serves as an inefficient and inconsistent means by which to achieve a particular goal. At some point therefore, the international community recognizes that a general norm of uniform origin would be more effective in articulating a value which has become widely shared among its members and which is recognized as important enough to implement by way of concrete sanctions. 5 Eventually, there may be institutional

5

Recently, the United Nations has begun work on the UN Declaration on the Rights and Responsibilities of Individuals and Groups in Society. See Comm'n

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pressure within the United Nations itself to implement individual responsibility for serious violations of human rights perhaps to avoid duplication of functions, especially if the kind of supervisory mechanism as that set up under the UN Torture Convention turns out to be effective on a global basis. United Nations organs could be established to enforce individual responsibility in order to suppress other kinds of serious human rights violations. Specific legal rules may coalesce into a more general rule through the cumulative practice of States and international organizations in implementing specific rules on individual responsibility. Where the content of these specific norms if combined, approximates and resembles the content of the emerging general rule, and a definite pattern of general State practice develops, implementation of rules on individual responsibility for specific human rights violations may become indistinguishable from implementation of the general rule that is emerging. In other words, implementation of specific rules may eventually become recognized and relied on for legal authority not for the proposition that there are many specific instances of individual responsibility for certain serious human rights violations, but for the proposition that the many instances of implementation of individual responsibility exemplify implementation of the rule stipulating individual responsibility for serious human rights violations in general. It must not be overlooked that the implementation of international criminal law through international tribunals has been ad hoc and sparse so far, the Nuremburg Judgement being the most important example. In the few cases where national courts invoked international law for the prosecution of an international crime, vexing jurisprudential and practical problems bring into sharp focus the limits to national enforcement of international individual responsibility. While deficiencies, inadequacies

on Hum. Rts., Rep. on the Forty-Sixth Sess. (29 Jan. - 9 Mar. 1990) ECOSOC Offic. Recs. 1990 Supp. 2 E/1990/22and E/CN.4/1990/94at 5.

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and limitations in existing measures of implementation by domestic courts on the one hand, and continuing efforts to create an international criminal court on the other hand, militate strongly in favour of the establishment of an international criminal court, such a court has not yet been created. A practical dilemma to the emergence of the general rule through the practice of domestic courts is that the lack of coherence and the complexity of existing rules is not conducive to effective implementation, yet effective implementation is unlikely to occur unless the rule is generalized and therefore rendered amenable to implementation by virtue of its simplicity, clarity and coherence. A solution to this practical dilemma lies in the continuing efforts of the international community to take positive multilateral action to develop progressively the international law relating to individual responsibility (chiefly the draft Code of Offenses against the Peace and Security of Mankind), and to take practical measures to establish an international criminal court. When the draft Code of Offenses comes to completion, naturally the time will be ripe for concrete action to be undertaken to set up an international criminal court to enforce the new Code. Another possible avenue for the emergence of such a rule lies in the adoption of a multilateral convention which stipulates individual responsibility for serious human rights violations in general. Indeed, the work of the ILC on the draft Code of Offenses against the Peace and Security of Mankind may eventually be adopted and opened to all States for ratification. This convention could contain the general rule, perhaps by way of expansion of the definition of 'crimes against humanity' to cover any serious human rights violation. However, the successful completion of the draft Code, long overdue, remains to be seen. On balance, there is cause for some optimism. The many elements on individual responsibility ie. the lex lata, fledgling efforts at implementation, and progressive development of the norms, are being buoyed up by the major undercurrents in the international legal system. These general factors are discussed next.

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2. GENERAL FACI'ORS ENHANCING PROSPECTS FOR EMERGENCE OF THE GENERAL RULE

Profound changes in the evolving structure of international law enhance the emergence of a general international rule of individual responsibility for serious human rights violations. International human rights law, an almost completely new domain of international law in 1945, is today well-established as an important field of multilateral cooperation. As discussed in Chapter VI, important international supervisory mechanisms function at both the level of the United Nations and in regional systems, ensuring that violations of human rights receive the international attention they deserve. The growth of human rights promotion and protection has brought the individual into greater contact with international law. With the firm establishment of international human rights, and the creation of mechanisms to supervise State adherence in respect of human rights, the individual has acquired a new status on the international plane. The individual is no longer merely an object of international law. The Nuremburg Judgment put to rest forever the contention that the individual could not be held responsible in a personal capacity for having committed serious violations of human rights. As the international community turns its attention to establishing more effective mechanisms to implement human rights, the likelihood increases that individuals will be held responsible for committing human rights violations. The rise of jus co gens and of obligations erg a omnes evidences the importance which the international community attaches to the recognition of certain acts to be criminal offenses against the entire international community itself. The growth of multilateral cooperation to suppress behaviour contrary to the fundamental interests of the international community, shows that in the global community in which all members come into ever more frequent contact with one another, serious human rights violations will come under increasingly strict scrutiny.

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Thus emergence of rules of individual responsibility for specific human rights violations as they developed over time represents one stage in the emergence of a more comprehensive, more general norm of individual responsibility for serious human rights violations. Precisely when and how the general rule will emerge depends upon the will and wisdom of the international community in carrying on its efforts collectively and cooperatively to ensure in future that serious human rights violations are deterred, and that the individuals who commit them are punished.

ANNEX

DRAFI' CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND1

I. TEXT OF THE DRAFT CODE ADOYfED BY THE COMMISSION ON FIRST READING PART I CHAPTER 1. DEFINITIONAND CHARACTERIZATION

Article 1 Definition The crimes [under international law] defined in this Code constitute crimes against the peace and security of mankind.

1

Draft Report of the International Law Commission on the work of its fortythird session, U.N. Doc. A/CN.4/L.464/Add.4 (1991).

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Annex Anicle 2 Characterization

The characterization of an act or omission as a crime against the peace and security of mankind is independent of internal law. The fact that an act or omission is or is not punishable under internal law does not affect this characterization. CHAPTER 2. GENERAL PRINCIPLES Anicle 3 Responsibility and punishment

1. An individual who commits a crime against the peace and security of mankind is responsible therefor and is liable to punishment. 2. An individual who aids, abets or provides the means for the commission of a crime against the peace and security of mankind or conspires in or directly incites the commission of such a crime is responsible therefor and is liable to punishment. 3. An individual who commits an act constituting an attempt to commit a crime against the peace and security of mankind [as set out in articles ..... ] is responsible therefor and is liable to punishment. Attempt means any commencement of execution of a crime that failed or was halted only because of circumstances independent of the perpetrator's intention. Article 4 Motives

Responsibility for a crime against the peace and security of mankind is not affected by any motives invoked by the accused which are not covered by the defmition of the crime. Article 5 Responsibility of States

Prosecution of an individual for a crime against the peace and security of

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mankind does not relieve a State of any responsibility under international law for an act or omission attributable to it.

Article & Obligation to try or extradite 1. A State in whose territory an individual alleged to have committed a crime against the peace and security of mankind is present shall either try or extradite him. 2. If extradition is requested by several States, special consideration shall be given to the request of the State in whose territory the crime was committed. 3. The provisions of paragraphs 1 and 2 do not prejudge the establishment and the jurisdiction of an international criminal court.

Article 7 Non-applicability of statutory limitations No statutory limitation shall apply to crimes against the peace and security of mankind.

Article 8 Judicial guarantees An individual charged with a crime against the peace and security of mankind shall be entitled without discrimination to the minimum guarantees due to all

human beings with regard to the law and the facts. In particular, he shall have the right to be presumed innocent until proved guilty and have the rights: (a) in the determination of any charge against him, to have a fair and public hearing by a competent, independent and impartial tribunal duly established by law or by treaty;

(b) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (c) to have adequate time and facilities for the preparation of his defence and

2

This article will be reviewed if an international criminal court is established.

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to communicate with counsel of his own choosing;

(d) to be tried without undue delay; (e) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him and without payment by him in any such case if he does not have sufficient means to pay for it; (t) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (g) to have the free assistance of an interpreter if he cannot understand or speak the language used in court; (h) not to be compelled to testify against himself or to confess guilt.

Article 9 Non bis in idem

1. No one shall be tried or punished for a crime under this Code for which he has already been finally convicted or acquitted by an international criminal court. 3 2. Subject to paragraphs 3, 4 and 5, no one shall be tried or punished for a crime under this Code in respect of an act for which he has already been finally convicted or acquitted by a national court, provided that, if a punishment was imposed, it has been enforced or is in the process of being enforced. 3. Notwithstanding the provisions of paragraph 2, an individual may be tried and punished by an international criminal court or by a national court for a crime under this Code if the act which was the subject of a trial and judgement as an ordinary crime corresponds to one of the crimes characterized in this Code. 4 4. Notwithstanding the provisions of paragraph 2, an individual may be tried and punished by a national court of another State for a crime under this Code: (a) if the act which was the subject of the previous judgement took place in

3

4

The reference to an of the establishment The reference to an of the establishment

international criminal court does not prejudge the question of such a court. international criminal court does not prejudge the question of such a court.

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the territory of that State; or (b) if that State has been the main victim of the crime. 5. In the case of a subsequent conviction under this Code, the court, in passing sentence, shall deduct any penalty imposed and implemented as a result of a previous conviction for the same act. Article 10 Non-retroactivity

1. No one shall be convicted under this Code for acts committed before its entry into force. 2. Nothing in this article shall preclude the trial and punishment of anyone for any act which, at the time when it was committed, was criminal in accordance with international law or domestic law applicable in conformity with international law. Article 11 Order of a Government or a superior

The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility if, in the circumstances at the time, it was possible for him not to comply with that order. Article 12 Responsibility of the superior

The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had information enabling them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all feasible measures within their power to prevent or repress the crime.

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Annex Article 13 Official position and responsibility

The official position of an individual who commits a crime against the peace and security of mankind, and particularly the fact he acts as head of State or Government, does not relieve him of criminal responsibility.

Article 14 Defences and extenuating circumstances 1. The competent court shall determine the admissibility of defences under the general principles of law, in the light of the character of each crime. 2. In passing sentence, the court shall, where appropriate, take into account

extenuating circumstances.

PART II CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

Article 15 Aggression 1. An individual who as leader or organizer plans, commits or orders the commission of an act of aggression shall, on conviction thereof, be sentenced [to ... ]. 2. Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. 3. The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression, although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity. 4. Any of the following acts, regardless of a declaration of war, constitutes an act of aggression, due regard being paid to paragraphs 2 and 3:

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(a) the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) the blockade of the ports or coasts of a State by the armed forces of another State; (d) an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement, or any extension of their presence in such territory beyond the termination of the agreement; (f) the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein; (h) any other acts determined by the Security Council as constituting acts of aggression under the provisions of the Charter. [5. Any determination by the Security Council as to the existence of an act of aggression is binding on national courts]. 6. Nothing in this article shall be interpreted as in any way enlarging or diminishing the scope of the Charter of the United Nations including its provisions concerning cases in which the use of force is lawful. 7. Nothing in this article could in any way prejudice the right to selfdetermination, freedom and independence,

as derived from the Charter, of

peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support,

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in accordance with the principles of the Charter and m conformity with the above-mentioned Declaration.

Article 16 Threats of aggression 1. An individual who as leader or organizer commits or orders the commission of a threat of aggression shall, on conviction thereof, be sentenced [to ... ]. 2. Threat of aggression consists of declarations, communications, demonstrations of force or any other measures which would give good reason to the Government of a State to believe that aggression is being seriously contemplated against that State.

Article 17 Intervention 1. An individual who as leader or organizer commits or orders the commission of an act of intervention in the internal or external affairs of a State shall, on conviction thereof, be sentenced [to ... ). 2. Intervention in the internal or external affairs of a State consists of fomenting [armed] subversive or terrorist activities or by organizing, assisting or financing such activities, or supplying arms for the purpose of such activities, thereby [seriously] undermining the free exercise by that State of its sovereign rights. 3. Nothing in this article shall in any way prejudice the right of peoples to selfdetermination as enshrined in the Charter of the United Nations.

Article 18 Colonial domination and other fonns of alien domination An individual who as leader or organizer establishes or maintains by force or orders the establishment or maintenance by force of colonial domination or any

other form of alien domination contrary to the right of peoples to selfdetermination as enshrined in the Charter of the United Nations shall, on conviction thereof, be sentenced [to ... ].

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Article 19 Genocide 1. An individual who commits or orders the commission of an act of genocide shall, on conviction thereof, be sentenced [to ... ]. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

Article 20 Apartheid 1. An individual who as leader or organizer commits or orders the commission of the crime of apartheid shall, on conviction thereof, be sentenced [to ... ]. 2. Apartheid consists of any of the following acts based on policies and practices of racial segregation and discrimination committed for the purpose of establishing or maintaining domination by one racial group over any other racial group and systematically oppressing it: (a) denial to a member or members of a racial group of the right to life and liberty of person;

(b) deliberate imposition on a racial group of living conditions calculated to cause its physical destruction in whole or in part; (c) any legislative measures and other measures calculated to prevent a racial group from participating in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group; (d) any measures, including legislative measures, designed to divide the population along racial lines, in particular by the creation of separate reserves and ghettos for the members of a racial group, the prohibition of marriages among members of various racial groups or the expropriation of landed property belonging to a racial group or to members thereof;

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(e) exploitation of the labour of the members of a racial group, in particular by submitting them to forced labour;

(t) persecution of organizations and persons, by depriving fundamental rights and freedoms, because they oppose apartheid.

them of

Article 21 Systematic or mass violations of human rights An individual who commits or orders the commission of any of the following

violations of human rights: -murder -torture - establishing or maintaining over persons a status of slavery, servitude or forced labour - persecution on social, political, racial, religious or cultural grounds in a systematic manner or on a mass scale; or - deportation of forcible transfer of population shall, on conviction thereof, be sentenced [to ... ]. Article 22 Exceptionally serious war crimes 1. An individual who commits or orders the commission of an exceptionally

serious war crime shall, on conviction thereof, be sentenced [to ... ]. 2. For the purposes of this Code, an exceptionally serious war crime is an exceptionally serious violation of principles and rules of international law applicable in armed conflict consisting of any of the following acts: (a) acts of inhumanity, cruelty or barbarity directed against the life, dignity or physical or mental integrity of persons [, in particular wilful killing, torture, mutilation, biological experiments, taking of hostages, compelling a protected person to serve in the forces of a hostile power, unjustifiable delay in the repatriation of prisoners of war after the cessation of active hostilities, deportation or transfer of the civilian population and collective punishment]; (b) establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory; (c) use of unlawful weapons;

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(d) employing methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment; (e) large-scale destruction of civilian property; (f) wilful attacks on property of exceptional religious, historical or cultural value.

Article 23 Recruitment, use, financing and training of mercenaries

1. An individual who as an agent or representative of a State commits or orders the commission of any of the following acts: - recruitment, use, financing or training of mercenaries for activities directed against another State or for the purpose of opposing the legitimate exercise of the inalienable right of peoples to self-determination as recognized under international law shall, on conviction thereof, be sentenced [to ... ]. 2. A mercenary is any individual, who: (a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; (c) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (d) is not a member of the armed forces of a party to the conflict; and (e) has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces. 3. A mercenary is also any individual who, in any other situation: (a) is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: (i) overthrowing a Government

or

otherwise

constitutional order of a State; or (ii) undermining the territorial integrity of a State;

undermining

the

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(b) is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation; (c) is neither a national nor a resident of the State against which such an act is directed; (d) has not been sent by a State on official duty; and (e) is not a member of the armed forces of the State in whose territory the act is undertaken. Article 24 llltemational terrorism An individual who as an agent or representative of a State commits or orders

the commission of any of the following acts: - undertaking, organizing, assisting, financing, encouraging or tolerating acts against another State directed at persons or property and of such a nature as to create a state of terror in the minds of public figures, groups of persons or the general public shall, on conviction thereof, be sentenced [to ... ]. Article 25 Illicit traffic in narcotic drugs 1. An individual who commits or orders the commission of any of the following acts: - undertaking, organizing, facilitating, financing or encouraging illicit traffic in narcotic drugs on a large scale, whether within the confines of a State or in a transboundary context shall, on conviction thereof, be sentenced [to ... ]. 2. For the purposes of paragraph 1, facilitating or encouraging illicit traffic in narcotic drugs includes the acquisition, holding, conversion or transfer of property by an individual who knows that such property is derived from the crime described in this article in order to conceal or disguise the illicit origin of the property. 3. Illicit traffic in narcotic drugs means any production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms

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whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to internal or international law.

Article 26 Wilful and severe damage to the environment An individual who wilfully causes or orders the causing of widespread, long-

term and severe damage to the natural environment shall, on conviction thereof,

be sentenced [to ... ].

II. TEXT OF DRAFT ARTICLES 3, 4, 5, 11, 14, 19, 20, 21, 22, AND 26 WITH COMMENTARIES THERETO, AS PROVISIONALLY ADOPTED BY THE COMMISSION AT ITS FORTY-THIRD SESSION

Article 3 Responsibility and punishment 1. An individual who commits a crime against the peace and security of mankind is responsible therefor and is liable to punishment. 2. An individual who aids, abets or provides the means for the commission of a crime against the peace and security of mankind or conspires in or directly incites the commission of such a crime is responsible therefor and is liable to punishment. 3. An individual who commits an act constituting an attempt to commit a crime against the peace and security of mankind [as set out in articles ..... ] is responsible therefor and is liable to punishment. Attempt means any commencement of execution of a crime that failed or was halted only because of circumstances independent of the perpetrator's intention.

Commentary (1) This article deals with individual criminal responsibility, criminal participation and attempt.

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(2) Paragraph 1 deals specifically with the responsibility of the perpetrator of the crime and limits criminal responsibility and the resulting punishment to individuals, to the exclusion of States. It is true that the act for which an individual is responsible might also be attributable to a State if the individual acted as an "agent of the State", "on behalf of the State", "in name of the State" or as a de facto agent, without any legal power. The draft article has nevertheless limited criminal responsibility to the individual alone, to the exclusion of the State. In this connection and during the discussion of the draft Code in plenary, some members of the Commission supported the proposition that not only an individual but also a State could be held criminally responsible. At its thirty-sixth session, the Commission nevertheless decided that the draft Code should be limited at the current stage to the criminal responsibility of individuals, without prejudice to subsequent consideration of the possible application to States of the notion of international criminal responsibility, in the light of the opinions expressed by Governments. 5 It should be pointed out that, assuming that the criminal responsibility of the State can be codified, the rules applicable to it cannot be the same, as regards investigation, appearance in court and punishment. The two regimes of criminal responsibility would be different. During the adoption of the commentary to article 19 of the draft articles on State responsibility, the Commission already warned against the tendency to derive from the expression "international crime", used in that article, a criminal content as understood in criminal law. It sounded a warning against "any confusion between the expression 'international crime' as used in this article and similar expressions, such as 'crime under international law', 'war crime' and 'crime against humanity', which are used in a number of conventions and international instruments to designate certain heinous individual crimes, for which those instruments require States to punish the guilty persons adequately, in accordance with the rules of their internal law" .6 It emphasized that "the obligation to punish personally individuals who are organs of the State and are guilty of crimes against the peace, against humanity, and so on does not, in the Commission's

5 6

[1984] Y.B. lot'] L. Comm'n, vol. II (Part Two), p. 17, document A/39/10, para. 65 (a). [1976] Y.B. Int'l L. Comm'n, vol. II (Part Two), p. 119, document A/31/10, para. (59) of the commentary to article 19.

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view, constitute a form of international responsibility of that State ... ". 7 (3) Paragraph 2 relates to complicity, which it defines as aiding, abetting or providing the means for the commission of a crime against the peace and security of mankind. Complicity, as a form of participation in the crime, was already provided for by Principle VII of the Niimberg Principles, by article 2, paragraph 13 (iii), of the 1954 draft Code and by article III (e) of the 1948 Genocide Convention. While there was no doubt in the Commission that any aiding, abetting or means provided prior to the perpetration of the crime or during its commission constituted obvious cases of complicity, the same was not true with regard to aiding, abetting or means provided ex post facto, in other words, after the commission of the crime, for example, to help the perpetrator get away or to eliminate the instruments or the proceeds of the crime, and so on. A conclusion seemed to be reached that complicity should be regarded as aiding, abetting or means provided ex post facto, if they had been agreed on prior to the perpetration of the crime. However, opinions were divided as to aiding, abetting or means provided ex post facto without any prior agreement. In the view of some members who represented certain legal systems, that was also complicity and the accomplice would be known under those legal systems as "an accessory after the fact". For other members, that was an offence of a different kind, known as "harbouring a criminal". They did not see how, for example, a person who gave shelter to the perpetrator of genocide could be compared to that perpetrator as a participant in a crime against the peace and security of mankind. That person did, of course, commit a crime, but he did not take part in the perpetration of a crime against the peace and security of mankind. (4) Paragraph 2 also refers to conspiracy to commit a crime against the peace and security of mankind and to incitement to do so as possible forms of participation which entail the criminal responsibility of an individual and make him liable to punishment. Instead of the French term "complot", the Commission preferred the term "entente", which was taken from article III of the Genocide Convention and differed, in French at least, from the term used in the 1954 draft Code and in Niimberg Principle VI. "Entente" and "complot" were both translations of the word "conspiracy", which was used in the English version of the draft article. In any event, the punishable conduct in question was participation in a common plan

7

Ibid., p. 104, para. (21).

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for the commission of a crime against the peace and security of mankind. The Commission used that concept to mean a form of participation, not a separate offence or crime. Direct incitement had already been used in the 1954 draft Code, while the Genocide Convention referred to direct and public incitement. The Commission considered that incitement did not have to be public in order to be punishable, provided that it was intended to encourage the perpetration of certain crimes. (5) Both the 1954 draft Code (art. 2, para. 13 (iv)) and the Genocide Convention (art. III (d)) make attempt a punishable act, but without defining it. Paragraph 3 of draft article 3 deals with the responsibility and punishment of any individual who commits an act constituting an attempt and gives a definition of attempt. The definition makes it clear that the concept of attempt includes the following elements: (a) intent to commit a particular crime; (b) an act designed to commit it; (c) an apparent possibility of committing it; and (d) non-completion of the crime for reasons independent of the perpetrator's will. Whereas the 1954 draft Code referred to attempts to commit "any" of the crimes dealt with therein, in this case, opinions in the Commission were divided on whether attempt was admissible in the case of all the crimes covered by the present draft Code. Some members considered that it was. Other members were of the view that a detailed article-by-article analysis would have to be made in order to determine whether the characterization of attempt was applicable to each crime taken individually. During the first reading of the draft articles, the Commission did not want to have to choose between the two solutions. This is why the first part of the paragraph contains the words "as set out in articles ... " in square brackets. The Commission will take a decision on this question during the second reading of the draft articles and in the light of the comments by governments. (6) The word "sanction" in the French title of this article has been used as the equivalent of the word "punishment" in the English title.

Article 4 Motives

Responsibility for a crime against the peace and security of mankind is not affected by any motives invoked by the accused which are not covered by the definition of the crime.

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Commentary

This article deals with the irrelevance of motives not related to the definition of the offence and claimed by the accused to relieve him of his responsibility. The Commission considered this provision necessary to show that the offender cannot resort to any subterfuge. He cannot invoke any motive as an excuse if the offence has the characteristics defined in the Code. The purpose is to exclude any defence based on another motive, when the real motive of the act is within the definition of the crimes covered by the draft Code. The word "motive" means the impulse which led the perpetrator to act or the feeling which animated him (racism, religious feeling, political opinion, etc.). No motive of any kind can justify a crime against the peace and security of mankind. The motive answers the question what were the reasons animating a perpetrator. Motives generally characterizing a crime against humanity are based on racial or national hatred, religion or political opinion. By reason of their motives, therefore, the crimes to which the draft Code relates are the most serious crimes. Motive must be distinguished from intent, i.e. the deliberate will to commit the crime, which is a necessary condition for the offences covered by the draft Code and was discussed in paragraph (3) of the commentary to article 1 of the draft.

Article 5 Responsibility of States

Prosecution of an individual for a crime against the peace and security of mankind does not relieve a State of any responsibility under international law for an act or omission attributable to it. Commentary

(1) As stated in the commentary to article 3, the draft Code (art. 3, para. 1) limits criminal responsibility for a crime against the peace and security of mankind to the individual and the Commission decided, at least at this stage, not to apply international criminal responsibility to States. However, it was also pointed out in the commentary to article 3 that an individual could commit a crime against the peace and security of mankind not only as an individual, but

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also and most frequently as an "agent of the State", "on behalf of the State", "in the name of the State" or even in a simple de facto relationship, without being vested with any legal power. (2) Accordingly, this draft article leaves intact the international responsibility of the State, in the traditional sense of that expression as it derives from general international law, for acts or omissions attributable to the State by reason of offences of which individuals acting as agents of the State are accused. As the Commission already emphasized in the commentary to article 19 of the draft articles on State responsibility, the punishment of individuals who are organs of the State "certainly does not exhaust the prosecution of the international responsibility incumbent upon the State for internationally wrongful acts which are attributed to it in such cases by reason of the conduct of its organs". 8 The State may thus remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime. It could be obliged to make reparation for injury caused by its agents.

Article 11 Order of a Governmelll or a superior

The fact of mankind relieve him possible for

that an individual charged with a crime against the peace and security acted pursuant to an order of a Government or a superior does not of criminal responsibility if, in the circumstances at the time, it was him not to comply with that order. Commentary

(1) The question of the role which can be played by a superior in the commission of a crime against the peace and security of mankind may be considered from two points of view. The first aspect of the question is the extent to which the commission of a crime by a subordinate also entails the responsibility of his superior. This aspect is dealt with in article 12 below. The second aspect of the

8

Ibid.

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question is to determine to what extent an order given by a superior for the commission of a crime against the peace and security of mankind may relieve the subordinate of responsibility. This is the question dealt with in article 11. (2) The rule that an order of a superior does not, in principle, relieve a subordinate of responsibility was established by the decisions of the military tribunals after the Second World War and it was stated in Principle IV of the Principles of International Law Recognized in the Charter of the Niimberg Tribunal and in article 4 of the 1954 draft Code. For example, in the case of Field Marshal List and others, the United States military tribunal stated that "An officer is duty bound to carry out only the lawful orders that he receives. One who distributes, issues or carries out a criminal order becomes a criminal if he knew or should have known of its criminal character. Certainly, a field marshal of the German Army with more than 40 years of experience as a professional knew or ought to have known of its criminal nature" .... "We consider that, if the subordinate did not know about the unlawfulness of the order received and if he could not fairly be expected to know about it, guilty intent, which implies the commission of a crime, is lacking and the subordinate will be covered. "9 (3) It is nevertheless recognized that, if a superior order is also to entail the responsibility of the subordinate, he must have had a choice in the matter and a genuine possibility of not carrying out the order. Such circumstances would not exist in cases of irresistible moral or physical coercion, state of necessity and obvious and acceptable error. Case law has, however, been very harsh in its treatment of such defences. This is why Niimberg Principle IV states that an order does not relieve a person of responsibility "provided a moral choice was in fact possible to him". The 1954 draft uses more precise wording to state that an order does not relieve a subordinate of responsibility "if, in the circumstances at the time, it was possible for him not to comply with that order". (4) It is thus clear that the question of superior order and its effect on the responsibility of a subordinate is linked to the theory of defences or exceptions to the principle of responsibility which the Commission deals with, still on a provisional basis, in draft article 14, as explained in the commentary to that draft article. It might therefore be asked why the Commission did not deal with that question in article 14, which relates to defences and extenuating circumstances.

9

American Military Tribunals, case No. 7, vol. XI, pp. 1271 and 1236.

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The importance of the question covered by draft article 11 and its relationship with draft article 12 on responsibility of the superior are what decided the Commission to include article 11 in the draft at this stage.

Article 14 Defences and extenuating circumstances 1. The competent court shall determine the admissibility of defences under the general principles of law, in the light of the character of each crime. 2. In passing sentence, the court shall, where appropriate, take into account extenuating circumstances.

Commentary (1) This article provisionally combines two criminal law concepts, namely, defences and extenuating circumstances, which come into play in determining the responsibility of the perpetrator of a crime against the peace and security of mankind or a participant in its perpetration and the punishment applicable to them. The Commission regards these as very important concepts and it discussed them at the current session. It was, however, not in a position to draft very detailed provisions on which all members could agree, since their opinions differed on the effects or consequences deriving from these concepts. It therefore decided that, at this stage, it should confine itself to the adoption of this general provision, which refers to the possibility that the court may take account of the existence of defences and extenuating circumstances. More specific and more suitable wording will be discussed at a later stage, taking account of the comments of Governments, which will enable the Commission to draft more appropriate provisions during the second reading of the draft articles. (2) With regard to paragraph 1 on defences, an exchange of ideas was held on the applicability to the crimes covered by the draft Code of some traditional criminal law concepts, such as self-defence, coercion, state of necessity, force majeure and error. In referring to self-defence, for example, some members expressed the view that the nature of some crimes covered by the Code did not admit of defences. In reply to some members who could accept self-defence only in the event of aggression, other members stated that, if aggression was

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determined to have taken place, it could not be justified by any fact. Some other members considered that self-defence could also be invoked in some cases of war crimes. Further exchanges of views took place on coercion, state of necessity,

force majeure, error and other possible defences, such as mental incapacity. 10 The Commission decided that there should be a separate provision (draft art. 11) on superior order for the reasons explained in the commentary to that draft article. In the opinion of some members, defences could never be invoked in connection with certain categories of crimes, such as crimes against humanity. (3) In referring to paragraph 2, several members pointed out that a provision of that kind should be much more precise in listing the circumstances which would allow for adjustability of the penalty.U Several members also expressed reservations as to whether two basically different concepts should be included in the same article: defences related to the existence or non-existence of responsibility, whereas extenuating circumstances presupposed responsibility and became relevant only in determining the penalty. For the purpose referred to in paragraph (1) of this commentary, however, the Commission decided to retain the draft article in its entirety.

Article 19 Genocide 1. An individual who commits or orders the commission of an act of genocide shall, on conviction thereof, be sentenced [to ... ]. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group;

10

11

These concepts were discussed at the Commission's thirty-ninth session during the consideration of the Special Rapporteur's fifth report, see Report of the International Law Commission on the work of its thirty-ninth session, U.N. Doc. A/42/10, paras. 44 to 55. On this question, see above the discussion of applicable penalties held in plenary at the current session, paras. ... (provisionally, U.N. Doc. A/CN.4/L.464/Add.1, para. 22).

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(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. Commentary

(1) The enormous gravity of the crime of genocide and the fact that the General Assembly had drafted an international convention on its prevention and punishment as early as 1948 made it essential to include this crime in the draft Code and also facilitated the Commission's task. The definition of the crime of genocide contained in this draft article is thus based entirely on that embodied in article II of the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the General Assembly on 9 December 1948, widely accepted by the international community and ratified by the overwhelming majority of States. (2) Whereas article 2, paragraph (10}, of the 1954 draft Code contained the word "including", which made the list of acts constituting genocide non-exhaustive rather than exhaustive, the Commission decided to use the wording of article II of the Convention, which makes the list of acts exhaustive in nature. The Commission decided in favour of that solution because the draft Code is a criminal Code an in view of the nulla poena sine lege principle and the need not to stray too far from a text widely accepted by the international community. (3) The crime is composed of two elements: (a) The commission of one or more of the acts listed in the draft article; (b) Intent to destroy, in whole or in part, one of the groups protected by the draft article. (4) As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group. The national or religious element and the racial or ethnic element are not taken into consideration in the definition of the word "destruction", which must be taken only in its material sense, its physical or biological sense. It is true that the 1947 draft Convention prepared by the Secretary-General and the 1948 draft prepared by the Ad Hoc Committee on Genocide contained provisions on "cultural genocide" covering any deliberate act

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committed with the intent to destroy the language, religion or culture of a group, such as prohibiting the use of the language of the group in daily intercourse or in schools or the printing and circulation of publications in the language of the group or destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group. However, the text of the Convention, as prepared by the Sixth Committee and adopted by the General Assembly, did not include the concept of "cultural genocide" contained in the two drafts and simply listed acts which come within the category of "physical" or "biological" genocide. The first three subparagraphs of the draft article list acts of "physical genocide", while the last two list acts of "biological genocide".

(5) The draft article clearly shows that it is not necessary to achieve the final result of the destruction of a group in order for a crime of genocide to have been committed. It is enough to have committed any one of the acts listed in the draft article with the clear intention of bringing about the total or partial destruction of a protected group. (6) Although they are not covered by the definition of genocide, some of the acts listed in paragraph (4) of this commentary might, if they are committed in a systematic manner or on a mass scale, constitute the crime dealt with in article 21 of the draft Code, which relates to "systematic and mass violations of human rights". (7) One member of the Commission was of the opinion that the forcible transfer referred to in paragraph 2 (e) of draft article 19 should not be limited only to children, but should also apply to adults.

Article 20 Apartheid

1. An individual who as leader or organizer commits or orders the commission of the crime of apartheid shall, on conviction thereof, be sentenced [to ... ]. 2. Apartheid consists of any of the following acts based on policies and practices of racial segregation and discrimination committed for the purpose of establishing or maintaining domination by one racial group over any other racial group and systematically oppressing it: (a) denial to a member or members of a racial group of the right to life and

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liberty of person; (b) deliberate imposition on a racial group of living conditions calculated to cause its physical destruction in whole or in part; (c) any legislative measures and other measures calculated to prevent a racial group from participating in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing

the full

development of such a group; (d) any measures, including legislative

measures, designed to divide the

population along racial lines, in particular by the creation of separate reserves and ghettos for the members of a racial group, the prohibition of marriages among members of various racial groups or the expropriation of landed property belonging to a racial group or to members thereof; (e) exploitation of the labour of the members of a racial group, in particular by submitting them to forced labour;

(f)

persecution

of organizations

and persons,

by

depriving

them of

fundamental rights and freedoms, because they oppose apartheid. Commentary

(1) Apartheid, an institutionalized form of racial discrimination which aims to perpetuate domination of a racial group and oppress it, is nowadays so deeply condemned by the world's conscience that it was inconceivable for the Commission to exclude it from a code which punishes the most abominable crimes that jeopardize the peace and security of mankind. It should be remembered in this connection that the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted by the General Assembly in resolution 2391 (XXIII) of 26 November 1968, already ranked "inhuman acts resulting from the policy of apartheid" as crimes against humanity and, therefore, no statutory limitation applied to them. (2) The definition of the crime of apartheid contained in this draft article is based, both in letter and in spirit, on article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly in resolution 3068 (XXVIII), of 13 November 1973. The Commission none the less considered that it was more in the nature of a provision of criminal law not to incorporate examples in the body of the provision itself and to confine the definition to a description of the courses of

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conduct constituting a crime. The examples have therefore been removed from the definition simply for technical reasons, without in any way diminishing the possibility of them being considered as crimes or the possibility that a court might regard other examples as meeting all the characteristics of one of the courses of conduct prohibited by the draft article. (3) In addition, the Commission did not want to limit the scope of the definition in the draft article by references to southern Africa, as in the case of article II of the 1973 Convention, which contains such a reference. Irrespective of whether such practices might one day disappear altogether from that region of the world, the Commission also took the view that such a universally condemned crime as apartheid should be defined so that the definition is applicable without any restriction as to time or place.

Article 21 Systematic or mass violations of human rights An individual who commits or orders the commission of any of the following

violations of human rights: -murder -torture - establishing or maintaining over persons a status of slavery, servitude or forced labour - persecution on social, political, racial, religious or cultural grounds in a systematic manner or on a mass scale; or - deportation of forcible transfer of population shall, on conviction thereof, be sentenced [to ... ].

Commemary (1) Article 2, paragraph (11), of the 1954 draft Code included among offences against the peace and security of mankind "Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities". In reconsidering this provision, which was not

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exhaustive in the 1954 draft, the Commission deemed it necessary, while keeping the bulk of the crimes it included, to update it in form and in substance and to take account of developments in international law in recent decades. (2) To begin with, the Commission noted that the common factor in all the acts constituting crimes under this draft article was a serious violation of certain fundamental human rights. In the light of this idea and bearing in mind the considerable development in the protection of human rights since the 1954 draft, both in the elaboration of international instruments and in the bodies that implement them and in the universal awareness of the pressing need to protect such rights, the Commission thought it useful to bring out this common factor in the draft article itself and in the title. (3) Again, since the acts covered by the draft Code must be of an extremely serious character, under the Commission's draft article only systematic or mass violations of human rights would be a crime. The systematic element relates to a constant practice or to a methodical plan to carry out such violations. The massscale element relates to the number of people affected by such violations or the entity that has been affected. Either one of these aspects - systematic or massscale - in any of the acts enumerated in the draft article is enough for the offence to have taken place. On the other hand, isolated acts of murder or torture, and so on, which are systematic or on a mass scale, no matter how reprehensible as violations of human rights, do not come under the draft Code. Consequently, each of the subparagraphs concerning the criminal acts should be read in conjunction with the chapeau of the article, under which they are a crime only if they constitute systematic or mass violations of human rights. (4) Moreover, compared with the 1954 draft Code, the Commission expanded the list of acts by including torture and it emphasized some others, such as deportation or forcible transfer of population. However, bearing in mind the draft Code's criminal character and the principle of nulla poena sine lege, the Commission deemed it necessary to make an exhaustive list of acts, unlike the list contained in the 1954 draft Code. (5) It is important to point out that the draft article does not confine possible perpetrators of the crimes to public officials or representatives alone. Admittedly, they would normally be in the best position, in view of their official position, to commit the crimes covered by the draft article, yet the article does not rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass

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violations of human rights covered by the article; in that case, their acts would come under the draft Code. (6) In the case of murder, there is no need to expatiate in view of the fact that this crime is covered by all criminal codes of internal law throughout the world. In this regard it should none the less be pointed out that the Commission did not include in the draft article the concept of extermination provided for in a parallel provision in the 1954 draft. It considered that extermination, where it was not a form of genocide, would constitute a form of mass murder and would thus be covered by the draft article. (7) The 1954 draft Code did not provide for the crime of torture. The Commission took the view that the particularly odious character of this crime, as well as the numerous examples unfortunately furnished by international realities in recent decades, fully warranted including torture among crimes against the peace and security of mankind when it was a systematic or mass practice. As to the definition, the crime of torture had been the subject of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (General Assembly resolution 3452 (XXX), of 9 December 1975), as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the General Assembly in resolution 3946 on 10 December 1984 and entered into force on 26 June 1987. One member of the Commission agreed with the actual definition of the crime given in the Convention but thought that possible perpetrators of the crime should not be limited solely to public officials or other persons acting in an official capacity. In his opinion, groups of private individuals could also perpetrate this crime. (8) Another violation of human rights covered by the draft article is establishing and maintaining over persons a status of slavery, servitude or forced labour. In regard to the definition of these crimes, the Commission considered that, since there were specific conventions on these matters it was enough for the draft article to enumerate the crimes and leave it to the commentary to mention the principles of international law underlying these conventions. For example, slavery is defined in the Slavery Convention, of 25 September 1926, and in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, of 7 September 1956, which also defines servitude. Both slavery and servitude are also prohibited under article 8 of the International Covenant on Civil and Political Rights, of 16 December

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1966. The article also prohibits forced labour, a concept which it spells out, and which also forms the subject of some conventions, such as Convention No. 29, adopted by the General Conference of the International Labour Organisation on 28 June 1930, and Convention No. 105 concerning the Abolition of Forced Labour, adopted by the General Conference of the International Labour Organisation on 25 June 1957. It should none the less be pointed out that, unlike some of these conventions and the 1954 draft Code, it is a crime under the present draft article not only to place persons in or reduce them to a status of slavery, servitude of forced labour but also to maintain them in that status, should they already be in such a situation when the Code enters into force. (9) Persecution on social, political, racial, religious or cultural grounds, already a crime under the 1954 draft Code, relates to human rights violations other than those covered by the previous paragraphs, committed in a systematic manner or on a mass scale by government officials or by groups that exercise de facto power over a particular territory and seek to subject individuals or groups of individuals to a kind of life in which enjoyment of some of their basic rights is repeatedly or constantly denied. Persecution may take many forms, for example, compiling secret files in which citizens are grouped into a number of categories with greater or fewer rights, depending on their seeming or real attitude towards the government; a prohibition on practising certain kinds of religious worship; prolonged and systematic detention of individuals who represent the culture of a particular group; a prohibition on the use of a national language, even in private; systematic destruction of books, monuments or other objects or buildings representative of a particular social, religious, cultural or other group. Some members of the Commission were of the view that, in the absence of a universally acceptable definition of persecution, it was not desirable to include it in the draft Code. (10) It was pointed out in the Commission that disappearances of persons was also a phenomenon that deserved to be covered by the draft Code. (11) The subparagraph on deportation or forcible transfer of population is listed separately, because the crime in itself necessarily entails a mass-scale element. The Commission considered that a crime of this nature could be committed not only in time of armed conflict but also in time of peace, which justified including it in the draft article. Deportation, already included in the 1954 draft Code, implies expulsion from the national territory, whereas the forcible transfer of population could occur wholly within the frontiers of one and the same State. It

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was pointed out in the Commission that the object was in this case essential to the definition of the crime. The draft article was certainly not directed at transfers ordered by the authorities, on grounds of public health for example, to protect a population from the effects of a disaster or for other similar reasons. Transfers of population under the draft article meant transfers intended, for instance, to alter a territory's demographic composition for political, racial, religious or other reasons, or transfers made in an attempt to uproot a people from their ancestral lands for the purposes of better integration with the rest of the nation. One member of the Commission was of the view that this crime could also come under the heading of genocide.

Article 22 Exceptionally serious war crimes

1. An individual who commits or orders the commission of an exceptionally serious war crime shall, on conviction thereof, be sentenced [to ... ]. 2. For the purposes of this Code, an exceptionally serious war crime is an exceptionally serious violation of principles and rules of international law applicable in armed conflict consisting of any of the following acts: (a) acts of inhumanity, cruelty or barbarity directed against the life, dignity or physical or mental integrity of persons [, in particular wilful killing, torture, mutilation, biological experiments, taking of hostages, compelling a protected person to serve in the forces of a hostile power, unjustifiable delay in the repatriation of prisoners of war after the cessation of active hostilities, deportation or transfer of the civilian population and collective punishment]; (b) establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory; (c) use of unlawful weapons; (d) employing methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment; (e) large-scale destruction of civilian property; (f) wilful attacks on property of exceptional religious, historical or cultural value.

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(1) This draft article, on war crimes, is a Commission towards a general definition detailed list of crimes and an enumeration another trend which, without prejudice to

compromise between one trend in the of war crimes unaccompanied by a of the categories of such crimes, and a general definition, was in favour of including as detailed a list as possible of all war crimes covered by the article. The Commission therefore opted for a middle-ground solution which, in the chapeau of paragraph 2 sets out a general definition of war crimes covered by the draft Code, a definition followed by an exhaustive enumeration of the categories of war crimes concerned. (2) It should be emphasized that the war crimes covered by the draft article are not all war crimes in the traditional sense, nor are they all serious offences covered by the relevant joint articles of the 1949 Geneva Conventions (article 50 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; article 51 of the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; article 130 of the Convention relative to the Treatment of Prisoners of War and article 147 of the convention relative to the Protection of Civilian Persons in Time of War) or any of the grave breaches covered by Protocol I Additional to the Geneva Conventions (art. 85). Faithful to the criterion that the draft Code should cover only the most serious among the most serious of crimes, the Commission therefore selected, on the basis of the criterion of exceptional seriousness, violations of international law applicable in armed conflicts that should be crimes under a code of this nature. Hence, the fact that a particular war crime in the traditional sense under humanitarian law or a grave breach within the meaning of the Geneva Conventions or the Additional Protocols is not covered by the present draft article as a crime against the peace and security of mankind in no way affects the fact that they are crimes under international law applicable in armed conflicts: as the beginning of the chapeau of paragraph 2 clearly indicates, the concept of a war crime enunciated in the article applies only for the purposes of the Code. (3) A war crime, within the meaning of the draft article, necessarily entails: (a) a violation of principles and rules of international law applicable in armed conflicts; (b) a violation that is exceptionally serious; (c) the seriousness must be such that the act constituting a crime falls within any one of the six categories in paragraph

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2 (a) to (f). It is the combination of these three elements that transforms an act or an omission into a war crime for the purposes for the draft Code. (4) The expression "violation of principles and rules of international law applicable in armed conflict" is a shorter form of the definition contained in article 2 (b) of Protocol I Additional to the Geneva Conventions and the wording is sufficiently broad to encompass both customary law and treaty law stemming from international agreements in which the participants are parties to an armed conflict. In addition, the words "armed conflict" cover not only international conflicts, in other words in the traditional sense of war between two or more States, but also conflicts in which the parties are national liberation movements within the meaning of article 1, paragraph 4, of Protocol I Additional to the Geneva Conventions and non-international or internal conflicts covered by joint article 3 of the four 1949 Geneva Conventions. (5) The term "exceptionally serious" violation in the chapeau of paragraph 2 and the six categories identified in subparagraphs (a) to (f) indicate, as already pointed out above, the specificity nature of the war crimes covered by the Code. The seriousness of the violation is marked, to a great extent, by the seriousness of the effects of the violation. The six categories are exhaustive even though it falls to the Court to determine or assess whether some acts or omissions fulfil the character of exceptional seriousness for each category. This also leaves some possibility for progressive development of the international law applicable in armed conflicts. For example, the category concerning the use of unlawful weapons can take account of further prohibitions of certain weapons, prohibitions that might be established in future. (6) Subparagraph (a) contains details concerning the seriousness of the acts involved, details that relate to the nature of the acts or the way in which they are performed, as well as to the property legally protected under the subparagraph. They are acts of inhumanity, cruelty or barbarity directed against the life, dignity or physical or mental integrity of persons. The word "acts" covers both actions and omissions. For example, the paragraph would certainly cover the omission of failing to supply food to meet a prisoner's needs, if the omission led to the prisoner's death. The word "persons" should be taken in the individual or collective sense. Accordingly, the acts of inhumanity, cruelty or barbarity may be systematically directed against one person or a group of persons. The subparagraph sets out in square brackets a number of examples of acts which are unquestionably serious enough for the purposes of the draft article.

Some

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members thought that it was useful to indicate in the main body of the subparagraph a few examples of the acts covered by the subparagraph. Other members took the view that such an insertion was not justified, in view of the non-exhaustive nature of the examples given . •(7) Under subparagraph (b) it is a crime to establish settlers in an occupied territory and to change the demographic composition of an occupied territory. A number of reasons induced the Commission to include these acts among exceptionally serious war crimes. Establishing settlers in an occupied territory constituted a particularly odious misuse of power, especially since such an act could involve the disguised intent to annex the occupied territory. Changes to the demographic composition of an occupied territory seemed to the Commission to be such a serious act that it could echo the seriousness of genocide. (8) Subparagraph (c) of paragraph 2 specifies another category of exceptionally serious war crimes covered by the draft article, namely, the use of unlawful weapons. This principle has already had a long history: the 1868 St. Petersburg Declaration prohibiting the use of explosive or inflammable projectiles of less than 400 grammes in time of war; the 1899 Hague Declarations prohibiting dumdum bullets, prohibiting the discharge of projectiles and explosives from balloons, and prohibiting the use of projectiles diffusing asphyxiating or deleterious gases, which was replaced by the 1925 Geneva Protocol; articles 22 and 23 of the regulations annexed to the 1907 Hague Convention with respect to the Laws and Customs of War on Land, articles which, among other things, prohibited the use of poison or poisoned weapons and the employment of arms, projectiles or material calculated to cause unnecessary suffering. Protocol I Additional to the Geneva Conventions prohibits (art. 51) indiscriminate attacks which could "strike military objectives and civilians or civilian objects without distinction", and hence "attacks which employ a method or means of combat the effect of which cannot be limited". Generally speaking, there has been some progressive development in this regard and it led to the United Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. At that Conference, held in Geneva in September 1979 and in September-October 1980, the following instruments were adopted by consensus: the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects; the Protocol on Non-Detectable Fragments

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(Protocol I); the Protocol on Prohibitions or Restrictions on the use of Mines, Booby Traps and other Devices (Protocol II) and the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). (9) The wording of subparagraph (d), concerning the employment of methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment is taken, word for word, from article 35, paragraph 3, of Protocol I Additional to the Geneva Conventions. As to the definition of the concept of natural environment and protected objects deriving from that concept, the reader is referred to the commentary to article 26 of the draft Code, concerning wilful and severe damage to the environment. It should be noted that, in addition to the provision in question in Protocol I, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted by the General Assembly on 10 December 1976, prohibits military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects, as a means of destruction, damage or injury to another party to the conflict. The Convention covers such techniques as changes in atmospheric conditions (clouds, precipitation, cyclones and tornados), changes in climatic conditions, ocean currents, the state of the ozone layer and the ionosphere, artificial earthquakes and tsumanis and disruption of a region's ecological balance. The subparagraph speaks of widespread, long-term and severe damage. For the interpretation of this expression, the reader is referred to the commentary to article 26, on wilful and severe damage to the environment. In addition, it should be pointed out that, under the subparagraph, it is a crime not only to employ methods or means of warfare intended to cause the damage mentioned above but also those which may be expected to cause such damage. This latter expression covers cases in which destruction of the natural environment was not the essential aim of the user of such methods or means of warfare, but, aware of the potentially disastrous consequences of such means or methods on the environment, he none the less decided to employ them. (10) Under subparagraph (e) "large-scale destruction of civilian property" is a crime. The 1949 Geneva Conventions and Additional Protocol I enunciate the principle of protection of civilian property in an armed conflict. Article 147 of the Fourth Convention considers that "destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly" constitute a grave breach of the Convention. Similarly, under article 85 of

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Protocol I it is a grave breach to launch •an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in article 57, paragraph 2 (a) (iii)" of the Protocol when the attack is committed wilfully, in violation of the provisions of the Protocol and causes death or serious injury to body or health. In this regard, article 57, paragraph 2 (a) (iii) of the Protocol requires the parties to a conflict to "refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated". The present subparagraph should therefore be read in the light of those provisions, taking into account the chapeau of paragraph 2, under which • an exceptionally

serious violation of principles and rules of international law

applicable in armed conflict" is a crime, and bearing in mind the term "largescale", which relates to the extent and amount of the kind of destruction dealt with in subparagraph (d). (11) It is a crime under subparagraph (f) to engage in wilful attacks on property of exceptional religious, historical or cultural value. The comments in connection with the preceding subparagraph are valid in this regard, namely, it should be read in the light of the chapeau of paragraph 2 and the relevant rules of international law applied in armed conflicts. It should be noted in this connection that article 53 of Protocol I to the Geneva Conventions prohibits "any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples"; using "such objects in support of the military effort" and making "such objects the object of reprisals". Protection of cultural property in an armed conflict is also a matter covered by the Hague Convention of 14 May 1954. In addition, Protocol I deems it a grave breach to direct attacks against the objects referred to in article 53, which are clearly recognized as such and to which special protection has been given by special arrangement (for example, within the framework of a competent international organization), causing as a result extensive damage, where there is no evidence of the violation by the adverse party of the prohibition on the use of such objects in support of the military effort, and such objects are not located in the immediate proximity of military objectives (art. 85 (4) (d)). Subparagraph (e) of this draft article highlights two elements in the definition of the crime: the wilful character of the attack, in other words an attack committed for the specific

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purpose of causing damage to the property, and the exceptional value of the property.

Article 26 Wilful and severe damage to the environment An individual who wilfully causes or orders the causing of widespread, long-

term and severe damage to the natural environment shall, on conviction thereof, be sentenced [to ... ] .

Commentary (1) The Commission's concern regarding harm to the environment had already been reflected in the adoption on first reading of draft article 19, on State responsibility. Under paragraph 3 (d) of the article, "the safeguarding and preservation of the human environment" had already been regarded as one of the fundamental interests of the international community and a breach of obligations of essential importance for the safeguarding and preservation of the human environment had been defined as an international crime. 12 In considering the draft Code, the Commission also took the view that protection of the environment was of such importance that some particularly serious attacks against this fundamental interest of mankind should come under the Code and the perpetrators should incur international criminal responsibility. (2) The direct source of the present draft article is article 55, paragraph 1, of Protocol I Additional to the 1949 Geneva Conventions. It should none the less be noted that, unlike the provision contained in the Protocol, application of this draft article is not confined to armed conflicts, as is the case with the above-mentioned article. (3) This draft article applies when three elements are involved. First, it should be damage to "the natural environment"; secondly, "widespread, long-term and severe damage" and lastly, the damage must be caused "wilfully".

12

See [1976] Y.B. Int'l L. Comm'n, vol. II (Part Two), U.N. Doc. A/31110, text of article 19 on State responsibility, adopted on first reading.

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(4) The words "natural environment" should be taken broadly to cover the environment of the human race and where the human race develops, as well as areas the preservation of which is of fundamental importance in protecting the environment. These words therefore cover the seas, the atmosphere, climate, forests and other plant cover, fauna, flora and other biological elements. It is worth recalling in this context article 2 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which was adopted by the General Assembly on 10 December 1976 and defines the expression "environmental modification technique" as "any technique for changing - through the deliberate manipulation of natural processes - the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space". (5) The expression "widespread, long-term and severe damage" is a special application to crimes against the environment of the general criterion of seriousness adopted for all crimes covered by the draft Code. The seriousness in this particular case is determined by three accumulative factors: the extent or entity of the damage, its persistence in time, and the size of the geographical area affected by the damage. It was explained in the Commission that the word "longterm • should be taken to mean the long-lasting nature of the effects and not the possibility that the damage would occur a long time afterwards. Some members noted that one consequence of the word "long-term" would be to delay criminal proceedings, for it implied that the durability would be ascertained before any criminal proceedings were brought. Other members thought that the long-term nature of the effects could reasonably be assessed from the start of the damage. (6) The last essential element in the definition of the crime lies in the word "wilfully", which refers to the express aim or specific intention of causing damage. This precludes from the scope of the crime not only cases of damage caused by negligence but also those caused by deliberate violation of regulations forbidding or restricting the use of certain substances or techniques if the express aim or specific intention was not to cause damage to the environment. Some members of the Commission found that this solution was open to great criticism. In their opinion, if the deliberate violation of some regulations on protection of the environment, for example for the purpose of gain, led to widespread, longterm and severe damage, it would constitute a crime against mankind, regardless of whether the aim had been to cause damage to the environment. In the opinion of these members, article 26 conflicted with article 22, on war crimes, which

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also deals (paragraph 2 (d)) with protection of the environment. Under article 22 it was a crime not only to employ methods or means of warfare that were

intended to cause damage but also might be expected to cause damage, even if the purpose of employing such methods or means had not been to cause damage to the environment.

BffiLIOGRAPHY

A. DOCUMENTS Treaties Abolition of Forced Labour Convention (No.105) (ILO), 1957. African Charter on Human and Peoples' Rights, 1981. American Convention on Human Rights, 1969. Charter of the United Nations and Statute of the International Court of Justice, 1945. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 1864. Convention for the Creation of an International Criminal Court, 1937. Convention for the Prevention and Punishment of Terrorism, 1937. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 1970. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, 1977. Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Declaration of Verona, 1822. Draft Statute for the Creation of an International Criminal Jurisdiction to Implement the International Convention on the Suppression and Punishment of the Crime of Apartheid, 1981. European Convention on Human Rights, 1950.

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Bibilio graphy

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987. Forced Labour Convention (No.29) (ILO), 1930. Geneva Convention for the Relief of the Wounded and Sick in Armies in the Field, 1929. Geneva Conventions, 1949. Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, 1925. Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970. Hague Convention concerning the Laws and Customs of War on Land, 1899. Hague Convention on the Laws and Customs of War on Land, 1907. International Convention on the Elimination of All Forms of Racial Discrimination, 1965. International Covenant on Civil and Political Rights, 1966. International Covenant on Economic, Social and Cultural Rights, 1966. International Convention against the Taking of Hostages, 1979. International Convention on the Suppression and Punishment of the Crime of

Apartheid, 1973. International Slavery Convention, 1926. International Treaty for the Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact), 1928. League of Nations Covenant, 1919. London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis of 1945. Montreal Convention for the Suppression for the Unlawful Acts against the Safety of Civil Aviation, 1973. Optional Protocol to the International Covenant on Civil and Political Rights, 1966. Protocols Additional to the Geneva Conventions of 12 August 1949, 1977. Punishment for War Crimes - the Inter-Allied Declaration (Declaration of St. James), 1942. St. Petersburg Declaration, 1868. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956. Treaty establishing the European Economic Community (Rome), 1957. Treaty of London, 1841. Treaty of Sevres, 1923.

Documents

209

Treaty of Versailles, 1919. Treaty of Washington, 1862. Treaty of Westphalia, 1648. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. Universal Declaration of Human Rights, 1948. Vienna Convention on the Law of Treaties, 1969.

Cases Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961). Barcelona Traction, Light and Power Co. Ltd. Case (Spain v. Belgium), 1970 I.C.J. Rep 3. Bolchos v. Darrell, 3F. Cas. 1810 (DSC 1795) (No. 1607). Breisach Trial of 1474. Brown v. Board of Education, 347 U.S. 483 (1954). Caire Claim (France v. Mexico), 5 R. Int'l L. Arb. Awards 516 (1929). Chorzow Factory (Indemnity) (Merits) (Germany v. Poland), 1928 P.C.I.J. Ser. A, no 17. Corfu Channel (U.K. v. Albania), 1949 I.C.J. Rep. 4. Cyprus v. Turkey (Eur. Conv.), Appl.6780174, 6950175 of Sept. 19, 1974 and March 2, 1975 (Y.B.18 [1975]). Denmark, Norway, Sweden and Netherlands v. Greece (Eur. Conv.), Appl. 3321, 3322, 3323, 3344/67 of September 1967 (Y.B. 1969 [1972]). Denmark, Norway, Sweden, Netherlands, and France v. Greece (Eur. Conv.), Appl. 9940-9944/82 of September 15, 1982. Eichmann Case (Attorney-General of the Government of Israel v. Eichmann) (Dist. Ct. of Jerusalem), 36 Int'l L. Rep. 5. Eisensatzgruppen Trial, 15 Int'l L. Rep. 656 (1948). Ex parte Quirin, 317 U.S.1 (1942). Filartiga v. Pena Irala, 630 F. 2d 876 (2nd Cir. 1980). Flick and Others, re, (U.S. Milit. Trib., Nuremburg, 1947), 14 lnt'l L. Rep. 266. German High Command Trial, (U.S. Milit. Trib., Nuremburg, 1948), 15 Int'l L. Rep. 376. Greece v. U.K. (Eur. Conv.), Appl. 176/56 of May 7, 1956. Hopkins Case, 4 R. Int'l L. Arb. Awards 411 (1926).

210

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I.G. Farben Trial, (U.S. Milit. Trib., Nuremburg, 1948), 15 Int'l L. Rep. 668. Interhandel (Preliminary Objections) Case, (Switzerland v. U.S.A.), 1959 I.C.J. Rep. 27. Ireland v. U.K. (Eur. Conv.), Appls. 5310171, 5451172, (Y.B. 15 [1972]). Jurisdiction of the Courts of Danzig (Adv. Op.), 1928 P.C.I.J. Ser. B, No. 15. Krauch and Twenty-Two Others, Ann. Pub. Int'l L. Cases, Case No. 218 (1948). Krupp and Others, re (U.S. Milit. Trib. at Nuremburg), 15 Int'l L. Rep. 620 (1948). Lawless Case (Merits) (Judgment) (Eur. Ct. of Hum. Rts.) (Nov. 14, 1960) (E.C.H.R. Y.B. 1961, vol. iv. 302). Llandovery Castle Case, Germany, (Supreme Court of Leipzig, 1921), 16 Am. J. Int'l L. 708 (1922). Lotus Case, (France v. Turkey), 1927 P.C.I.J. Ser. A, No. 10. Mavrommatis Palestine Concessions Case (Jurisdiction), (Greece v. U.K.), 1924 P.C.I.J. Ser. A, No. 2, 12. Naulilaa Case (Portugal v. Germany), 2 R. Int'l Arb. Awards 1012 (1928). North American Dredging Co. Case, (U.S. v. Mexico), 4 R. Int'l Arb. Awards (1926). Nottebohm Case, (Liechtenstein v. Guatemala), 1955 I.C.J. Rep. 4. Nuremburg Judgment (42 Brit.Ed.: 1946), 41 Am. J. Int'l L. 172-333 (Jan. 1947). Ohlendorf and Others, Ann. Pub. lnt'l L. Cases, Case No. 217 (1948). Panevezys-Saldutiskis Case, (Estonia v. Lithuania), 1939 P.C.I.J. Rep. Ser. A/B, No. 76. Plessy v. Ferguson, 163 U.S. 537 (1896). Quirin, Ex parte (U.S. Supreme Court, 1942), 317 U.S.1, 63 S.Ct.2. Reparations for Injuries Suffered in the Service of the UN (Adv. Op.), 19491.C.J. Rep. 174. Reservations to the Convention on Genocide Case (Adv. Op.), 19511.C.J. Rep. 15. Spanish Zone of Morocco Claims Case, (Great Britain v. Spain), 2 R. lnt'l Arb. Awards 615 (1925). Steiner and Gross v. Polish State, 4 Ann. Pub. Int'l L. Cases 291 (1927-1928). Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 824 D.C.Cir. 1984. Trail Smelter Case, (U.S. v. Canada), 3 R. Int'l Arb. Awards 1905 (1941). U.S. v. Aluminum Co. of America, 148 F.2d 416 (1945). U.S. v. Watchmakers of Switzerland, 133 F.Supp.40 (1955); 134 Supp. 710 (1955).

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211

Union Bridge Company Case (U.S. v. Great Britain), R. Int'l Arb. Awards 138 (1924). Vagrancy Cases (Judgment), E.C.H.R. Ser. A (November, 18, 1970) (Question of Procedure) (Eur. Ct. of Hum. Rts.). Yamashita, re (U.S. Supreme Court, 1946) 327 U.S. (1946) 1, 66 S.Ct. 340, 40 Am. J. Int'l L. 432-480 (Apr.1946). Youmans Claim (U.S. v. Mexico), 4 R.Int'l L. Arb. Awards 110 (1926). Resolutions of the United Nations General Assembly 1946 UNGA Res. 96(1) Affirming Principles in the Nuremburg Judgment and Charter relating to Genocide. 1947 UNGA Res. 177 (II) Draft Code of Offenses against the Peace and Security of Mankind. 1948 UNGA Res. 217A (III) Universal Declaration of Human Rights. 1948 UNGA Res. 174 (A/180) (concerning the coverage of the draft code of offenses against the peace and security of mankind). 1953 UNGA Res. 799 (VIII) Eighth Sess., Supp. No. 17. (A/2630), (concerning initiation of a draft code of offenses against the peace and security of mankind). 1957 UNGA Res. 1186 (XII) (concerning deferral of further work on the Draft Code of Offenses). 1965 UNGA Res. 2131 (XX), Declaration on the Inadmissibility of the Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. 1970 UNGA Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations. 1974 UNGA Res. 3314 (XXIX), Resolution on the Definition of Aggression. 1981 UNGA Res. 36/106 (to resume work on the Draft Code of Offenses against the Peace and Security of Mankind). 1983 UNGA Res. 38/137, Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries. 1986 UNGA Res. 411120, Setting International Standards in the Field of Human Rights.

212

Bibilio graphy

Other docwnents Commission on Human Rights, Report on the Forty-Sixth Sess. (29 Jan.- 9 Mar. 1990), ECOSOC Official Records 1990 Supp. 2 E/1990/22and U.N. Doc. E/CN.4/1990/94. Draft Code of Offences Against the Peace and Security of Mankind G.A.O.R. Supp. No.9 (A/2693). Fifth Report on the Draft Code of Offenses against the Peace and Security of Mankind, U.N. Doc. A/CN.4/404 (March 17, 1987). Harvard Research Draft Convention on Jurisdiction With Respect to Crime, 1935, 29 Am.J.Int'l L.443 Supp. (1935). History of the United Nations War Crimes Commission and the Development of the Laws of War (Compiled by the UNWCC) London: H.M. Stationery Office 1948. 592 pages. International Law Commission, Draft Articles on State Responsibility, [1972] 2 Y .B. 90, U.N. Doc. A/CN.4/Ser.A/1979. International Law Commission Report on the Formulation of Niimberg Principles, Int'l L. Comm'n (12 April 1950) (Spec. Rapp. Spiropoulus) UN Doc. A/CN.4/22. International Law Commission Report on the work of its forty-first sess. (May 2 July 21, 1989), G.A. Official Records Supp. No. 10 (A/44/10). International Law Commission Yearbooks: [1950] 2 Y.B. Int'l L. Comm'n, U.N. Doc. A/CN.4/22/1950. [1950] Y.B. Int'l L. Comm'n Pt. II, U.N. Doc. A/CN.4/Ser.A/1950. [1956] Y.B. Int'l L. Comm'n Pt. II, U.N. Doc. A/CN.4/Ser.A/1956. [1970] 2 Y.B. Int'l L. Comm'n, U.N. Doc. A/CN.4/Ser.A/1970. [1972] Y.B. Int'l L. Comm'n Pt. 2, U.N. Doc. A/CNA/264/Ser.A/1972/and Add.l (Pt.2). [1976] 2 Y.B. Int'l L. Comm'n Pt. 2, U.N. Doc. A/CN.4/Ser.A/1976/Add.l (Pt. 2). (Commentary to Art. 19). [1980] 2 Y.B. Int'l L. Comm'n Pt. 1, U.N. Doc. A/CN.4/SER.A/1980/Add.1 Pt. I. [1980) 2 Y.B. Int'l L. Comm'n Pt. 2, U.N. Doc. A/CN.4/SER.A/1980/Add.l Pt.2. [1982) 2 Y.B. Int'l L. Comm'n Pt. 1, 277 para.8, U.N. Doc. A/CN.4/SER.A/1982/Add.1 Pt. 1.

Documents

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[1985] 2 Y.B. Int'l L. Comm'n Pt. 1, U.N. Doc. A/CN.4/SER.A/1985/Add.1 Pt. 1. [1986] 2 Y.B. Int'l L. Comm'n Pt. 2, U.N. Doc. A/CN.4/SER.A/1986/Add.1 Pt. 1. [1987] 2 Y.B. Int'l L. Comm'n Pt. 2, U.N. Doc. A/CN.4/1985/Add.1(Pt. 2). Lauterpacht, Survey of International Law in Relation to the Work of Codification in the International Law Commission (U.N. Doc. A/CN.4/4 Rev.1, Feb. 10, 1949). UN Report on the Study of the Question of the Prevention and Punishment of the Crimes of Genocide, U.N. Doc. E/CN.4/Sub.2/416,4 July 1978, p. 13-24. UN Report by the Spec. Rapp. on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, (Mr. P. Kooijmans), U.N. Doc. E/CN.4/1986/15, 19 Feb. 1986. UN Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, U.N. Doc. E/CN.4/Sub.2/384Rev.1 (1979). United States Lieber Code of 1863.

B. BOOKS Amnesty International, Reports 1984, 1985, 1986, 1987, 1989, Amnesty International Publications (1984-1990). 382p.

1990, London:

Avineri, Hegel's Theory ofthe Modern State, London: Cambridge Univ. Press 1972. 252 p. Baird (ed.), From Nuremburg to My Lai, London: Heath 1972. 292 p. Bassiouni, M. Cherif, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, Boston: Martinus Nijhoff 1987. 492 p. Bassiouni, M. Cherif. (ed.), 1 International Criminal Law: Crimes, Dobbs Ferry: Transnational Publishers Inc. 1986. 581 p.

Bassiouni, M. Cherif. (ed.), 3 International Criminal Law: Enforcement, Dobbs Ferry: Transnational Publishers, 1987. 313 p. Borchard, The Diplomatic Protection of Citizens Abroad, New York: Banks 1927. 988 p. Brownlie, Principles of Public International Law: Third Ed. , Oxford: Clarendon Press, 1979. 743 p.

214

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Brownlie I., System ofthe Law ofNations: State Responsibility, Oxford: Clarendon Press: 1983. 302 p. Cassese A. and Weiler J.(ed.), Change and Stability in International Law-Making Berlin: Walter de Gruyter, 1988. 213 p. Cassesse (ed.), The New Humanitarian Law of Armed Conflict, Napoli: Editoriale Scientifica 1979. 501 p. Dinstein, The Defense of 'Obedience to Superior Orders' in International Law 156-164, Leiden: Sijthoff 1965. 278 p. Duguit, Traite de Droit Constitutionnel: Second Ed. at 319. Filmer, Patriarcha or a Defence of the National Power of Kings against the Unnatural Liberty of the People, 1680. Garcia-Amador, Sohn & Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens, Dobbs Ferry, New York: Oceana Publications 1974. 402 p. Grotius, De Jure Belli ac Pacis, 1625. Guggenheim, Traite de droit international public, Geneve 1953. Habermas, Knowledge and Human Interests, Toronto: Saunders Ltd. 1971. 356 p. Hart, The Concept ofLaw, Oxford: Clarendon, 1961. 263 p. Hegel, Philosophy ofRight (trans.: T.M. Knox), London: Oxford Univ. Press 1942. Hempel, Philosophy of Natural Science, Englewood Cliffs: Prentice-Hall 1966. 116 p. Hume, A Treatise of Human Nature, 1777.

Jessup, A Modern Law of Nations, New York: Macmillan 1948. 236 p. Kant, Critique ofPure Reason, New York: Doubleday (F. Max Muller trans.) 1966. 543 p. Kant, Groundwork of the Metaphysic of Morals, New York: Harper (trans. H.J. Paton). 1956. 148 p. Keen, The Laws ofWar in the Late Middle Ages, London: Routledge & Kegan Paul 1965. 291 p. Kelsen, Genera/Theory ofLaw and State, Cambridge: Harvard Univ. Press, 1945. 516 p. Kelsen, Principles ofInternational Law: Second Edition, New York: Holt, Rinehart & Winston 1966. 602 p.

Kuhn, The Structure of Scientific Revolutions: Second Edition, Chicago: Univ. of Chicago Press 1970. 210 p.

Books

215

Lakatos & Musgrave (eel.) Criticism and the Growth of Knowledge, Cambridge: Cambridge Univ. Press 1970. 282 p. Lessnoff, The Structure of Social Science, London: Allen and Unwin Ltd. 1974. 173 p. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens, Charlottesville: Univ. Press of Virginia 1983. 412 p. Locke, Two Treatises of Government, 1689. Machiavelli, The Prince, 1513. Miller, The Drafting of the Covenant, New York: Putnam 1928. 555 p. Minear, Victor's Justice: The Tokyo War Crimes Trials, Princeton: Princeton Univ. 1971. 229 p. Norgaard, The Position of the Individual in International Law, Copenhagen: Munksgaard 1962. 325 p. Oppenheim, International Law: Eighth Ed., London: Longman Green 1963. 1072 p. Remec, The Position ofthe Individual in International Law according to Grotius and Vattel, The Hague: Martinus Nijhoff 1960. 260 p.

Reuter, Introduction to the Law of Treaties, London: Pinter (Mico & Haggenmacher trans. 1989). 230 p. Ross, A Textbook of International Law, London: Longman Green 1947. 313 p. Schwarzenberger, Inductive Approach to International Law, London: Stevens & Sons 1965. 209 p. Schwarzenberger, International Law as Applied by International Courts and Tribunals: Vol. II The Law of Armed Conflict, London: Stevens & Sons 1968. 881 p. Schwarzenberger, A Manual of International Law: Sixth Ed., London: Professional Books 1976. 612 p. Scott, The Hague Conventions and Declarations of I899 and 1907, New York: Oxford Univ. Press 1915. 268 p. Scott, The Spanish Conception ofInternational Law and ofSanctions, Washington: Carnegie Endowment for Peace 1934. 131 p. Scott, The Spanish Origin of International Law, Washington: Georgetown Univ. 1928. 121 p. Sinclair, The International Law Commission, Cambridge: GrotiusPublications 1987. 177 p. Smith, Reaching Judgment at Nuremburg, London: Deutsch 1977. 349p.

216

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Sorenson M. (ed.), Manual of Public International Law, New York: St. Martin's Press 1968. 930 p. Spinedi and Sitmna (eds.), United Nations Codification of State Responsibility, London: Oceana 1987. 333 p. Starke, An Introduction to International Law: Fifth Ed., London: Butterworth 1963. 524p. Stowell, International Law, New York: Henry Holt 1931. 772 p. Sweeney, Oliver and Leech, Cases and Materials on the International Legal System:

Second Ed., New York: Foundation Press 1981. 1371p. Temperly, 5 A History of the Peace Conference of Paris, London: Henry Frowde 1919. 6 vols. UNESCO (ed.), International Dimensions of Humanitarian Law, Dordrecht: Martinus Nijhoff 1988. 328 p. Verzijl J., International Law in Historical Perspective: Part II: International

Persons, Leiden: A.W. Sijthoff 1969. 608 p. Verzijl J., InternationalLaw in Historical Perspective: Part IX-A: The Laws ofWar, Sijthoff & Noordhoff 1978. 547 p. Weiler, Cassesse and Spinedi (eds.), International Crimes of State: A Critical

Analysis ofthe ILC's Draft Article 19 on State Responsibility, Berlin: Walter de Gruyter 1989. 368 p. Wittgenstein, Tractatus logico-philosophicus, London: D.F .Pears & B. F. McGuiness trans 1961. Wittgenstein, Philosophical Investigations, G.M. Anscombe trans. 1953.

C. ARTICLES Abi-Saab, The Legal Formulation ofa Right to Development (Subjects and Content), in The Right to Development at the International Level, (Alphen aan den Rijn: Sitjhoff and Noordhoff) 1980. Abi-Saab, Wars of National Liberation in the Geneva Conventions and Protocols, 165 Hague Recueil 353-445 (1979). Alfredsson, The Right to Self-Determination and Its Many Manifestations in The

Right ofIndigenous Peoples in International Law, 53-57 (Thompson ed. 1987). Baxter, Humanitarian Law or Humanitarian Politics?: The 1974 Diplomatic Conference on Humanitarian Law, 16 Harv. Int'l L. J. 1-26 (1975).

Anicles

217

Baxter, The Municipal and International Law Basis ofJurisdiction Over War Crimes, 28 Brit. Y.B. Int'l L. 382-393 (1951). Benson, Equal Pay for Work of Equal Value, 15 Israel Y.B. Hum. Rts. 66-85 (1985). Blishchenko and Shdanov, The Problem of International Criminal Jurisdiction, 14 Can Y.B. Int'l L. 283-329 (1976). Bowell, Reservations to Non-Restricted Multilateral Treaties, 48 Brit. Y.B. Int'l L. 67-92 (1976-77). Brand, The War Crimes Trials and the Laws ofWar, 26 Brit. Y.B. Int'l L. 414-427 (1949). Bridge, The Case for an International Court ofCriminalJustice and the Formulation of International Criminal Law, 13 Int'l & Comp. L.Q. 1255-1284 (1964). Bristol, The Laws of War and Belligerent Reprisals against Enemy Civilian Populations, 21 A.F.L. Rev. 397-431 (1979). Cassesse, A New Approach to Human Rights: The European Convention for the Prevention of Torture, 83 Am. J. Int'l L. 128-153 (1989). Coccia, Reservations to Multilateral Treaties on Human Rights, 15 Calif. W. Int'l L. J. 1-51 (Win. 1985). Cowles, The Impact of International Law on the Individual, Am. Soc. Int'l L. Pro. 71-85 (1952). D'Amato, Goulds and Woods, War Crimes and Vietnam: The 'Nuremburg Defense' and the Military Service Resister, II Vand. J. Transnat'l L. 653-670 (Fall1978). De Schutter, Humanitarian Intervention: a United Nations Task, 3 Calif. W. L. Rev. (1972). Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int'l & Comp. L.Q. 102-120 (Jan.1976). Dinstein, International Criminal Law, 20 Israel L. Rev. 206-242 (1985). Donnelly, The Emerging International Regime against Torture, 33 Neth. Int'l L. Rev. 1-23 (1986). Doswald-Beck, What Does the Prohibition of 'Torture, Inhuman or Degrading

Punishment' Mean? The Interpretation of the European Commission and Court of Human Rights, 25 Neth. Int'l L. Rev. 24-50 (1978). Draper, The Implementation and Enforcement of the Geneva Conventions of 1949 and ofthe Two Additional Protocols of 1978, 164 Hague Recueil 1-54 (1979). Draper, The Modern Pattern of War Criminality, 6 Israel Y.B. Hum. Rt. 9-48 (1976).

218

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Draper, 1he Relationship Between the Human Rights Regime and the Law ofArmed

Conflicts, Israel Y.B. Hum. Rts. 91-207 (1971). Dunn, 1he International Right ofIndividuals, Am. Soc. Int'l L. Pro. 14-22 (1941). D'Zurilla, Individual Responsibility for Torture Under International Law, 56 Tul. L. Rev. 186-226 (1981). Eagleton, Some Questions as to the Place ofthe Individual in the International Law

of the Future, 37 Am. J. Int'l L. 642-644 (1943). Emerson, Self-Determination, 65 Am. J. Int'l L. 459-475 (1971). Encel, Affirmative Action in the Employment of Women, 15 Israel Y.B. Hum. Rts. 52-65 (1985). Ermacora, Protection ofMinorities Before the United Nations, 182 Hague Recueil 247-370 (1983). Falk, The Shimoda Case: A Legal Appraisal ofthe Atomic Attacks Upon Hiroshima

and Nagasaki, 59 Am. J. Int'l L. 759 (1965). Fawcett, The Eichmann Case, 38 Brit. Y.B. Int'l Law 181-215 (1962). Feldmann, International Personality, 191 Hague Recueil 342-413 (1985-11). Fenwick, 1he Progress ofllllernational Law During the Past Forty Years, 79 Hague Receuil1-70 (1951-11). Finch, 1he Nuremburg Trial and International Law, 41 Am. J. Int'l L. 20-37 (1947). Fitzmaurice, The Juridical Clauses ofthe Peace Treaties, 13 Hague Receuil259-364 (1948). Fonteyne, The Customary Law Doctrine ofHumanitarian Interventions: Its Cu"ent

Validity Under the United Nations Charter, 17 Comp. Jurid. Rev. (U.S.) 27-86 (1980). Fourlanos, Subjectivity in International Law and the Position of the Individual, 53 Nordisk Tidsskrift for Int'l Ret 9-25 (1984). Franck & Rodley, After Bangladesh: the Law of Humanitarian Intervention by

Military Force, 61 Am. J. Int'l L. 275-305 (1973). Friedmann, General Course in Public International Law, 127 Hague Recueil39-246 (1969). Fuller, Positivism and Fidelity to Law- A Reply to Professor Hart, 71 Harv. L. Rev. 630-672 (1958). Garcia-Amador, State Responsibility: Some New Problems, 94 Hague Recueil 369-487 (1958).

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Garcia-Amador, Le sujet passif de la responsabilite et la capacite d'etre

demandeur en droit international, Rev. de Droit Int'l de Sciences Diplom. Pol. 34e

annee 266-279

(1956).

Graefrath, Responsibility and Damages Caused: Relationship Between Responsibility

and Damages, 185 Hague Recueil 9-150 (1984). Guggenheim, The Implementation of Human Rights by the UN Commission on the Status of Women, 12 Tex. Int'l L. J. 239-249 (1977). Hambro, Individuals Before International Tribunals, Am. Soc. Int'l L. Pro. 22-30 (1944). Hartman, Derogations from Human Rights Treaties in Public Emergencies, 22 Harv. Int'l L. J. 1-53 (win. 1981). Hauser, International Protection ofMinorities and the Right of Self-Determination, 1 Israel Y.B. Hum. Rts. 92-102 (1971). Heyking, International Protection ofMinorities - the Achilles Heel ofthe League of

Nations, in XIII Transactions of the Grotius Society (1927). Higgins, The Abuse ofDiplomatic Privileges and Immunities: Recent United Kingdom Experience, 19 Am.J. lnt'l L. 641-651 (1985). Higgins, Derogations Under Human Rights Treaties, 48 Brit. Y.B. Int'l L. 281-320 (1976-77). Idelson, The Law of Nations and the Individual, 30 Grotius Transactions 50-66 (1944). Janis, Individuals as Subjects of International Law, 17 Cornell Int'l L.J. 61-78 (1984). Jennings, The Limits of State Jurisdiction, 32 Nordisk Tidsskrift for Int'l Ret 209-229 (1962). Jimenez de Arechaga, International Law in the Past Third of a Century, 159 Hague Recueil 3-343 (1978). Johnson, Toward Self-Determination, 3 Ga. J. Int'l & Camp. L. 145-163 (1973). Keijzer, A Plea for the Defence of Superior Order, 8 Israel Y.B. Hum. Rts. 78-103 (1978). Kelsen, Collective and Individual Responsibility for Acts of State in International

Law, Jewish Y. B. Int'l L. 226-239 (1948). Kelsen, Will the Judgment in the Nuremburg Trial Constitute a Precedent in International Law?, 1 No. 2 Int'l L. Q. 153-171 (Sum. 1947). Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harv. L. Rev. 44-70 (1941).

220

Bibilio graphy

Kelsen, Value Judgments in the Science ofLaw, 7 J. of Soc. Phil. & Juris. 312-333 (No.4 July, 1942). Kiss, The Peoples' Right to Self-Determination, 7 Hum. Rts. L.J. 165-182 (1986). Komarow, Individual Responsibility Under International Law: The Nuremburg

Principles in Domestic Legal Systems, 29 Int'l L.Q. 376-382 (Apr. 1985). Korowicz, The Problem of the International Personality of Individuals, 50 Am. J. Int'l L. 533-562 (1956). Krishnaswami, Study ofDiscrimination in the Matter of Religious Rights and Practices, 11 N.Y.U.J. Int'l L. & Pol. 227-296 (1978). Lerner, Toward a Draft Declaration against Religious Intolerance and

Discrimination, 11 Israel Y.B. Hum. Rts. 82-105 (1981). Levine, The Doctrine ofMilitary Necessity in the Federal Courts, 89 Mil. L. Rev. 3-24 (1980). Lissitzyn, Treaties and Changed Circumstances (Rebus Sic Stantibus), 61 Am. J. lnt'l L. 895-922 (1967). Lukashuk, Parties to Treaties - The Right to Participation, 135 Hague Recueil 231-328 (1972). MacBride, Human Rights in Armed Conflicts, 9 Rev. Droit Penal Mil. Droit de Ia Guerre 373-394 (1970). Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 Hague Recueil 9-116 (1984). Manner, The Object Theory ofthe Individual in International Law, 46 Am. J. Int'l L. 428-449 (1952). Marek, Criminalizing State Responsibility, XIV-2 Belgian Rev. Int'l L. 460-485 (1978-1979). Miller, The Convention on the Non-Applicability of Statutory Limitations to War

Crimes and Crimes Against Humanity, 65 Am. J. Int'l L. 476-501 (1971). Mosler, The International Society as a Legal Community, 140 Hague Recueil, 1-187 (1974). Muchlinski, The Status ofthe Individual Under the European Convention on Human

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Anicles

221

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Convention: A Comparative Study, 29 Eur. Y.B. 50-78 (1981). Robinson, International Protection of Minorities, 1 Israel Y.B. Hum. Rts. 61-91 (1971). Rodley, Human Rights and Humanitarian Intervention: The Case Law ofthe World

Court, 38 Int'l & Camp. L.Q. 321-333 (Apr.l989). Roling, Criminal Responsibility for Violations ofthe Laws ofWar, 12 Belgian Rev. Int'l L. 8-26 (1976). ROling, Human Rights and the War Problem, 15 Neth. Int'l L. Rev. 346-361 (1968). Rossillion, I.L. 0. Examination of Human Rights Situations: New Procedures for

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222

Bibilio graphy

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Charter, 7 Hum. Rts. L.J. 183-194 (1986). Waldock, The Control ofthe Use ofForce By States in lllternationalLaw, 81 Hague Receuil 455-517 (1952). Weisberg, The Congo Crisis 1964: A Case Study in Humanitarian Intervention, 12:2 Va. J. Int'l L. 261-276 (1972). Wellbaum, International Human Rights Claims After Tel-Oren v. Libyan Arab Republic, 9 Hastings Int'l & Comp. L.Rev. 107-147 (1985). Wolf, ILO Experience in the Implementation of Human Rights, 10 J. Int'l L. & Econ. 599-625 (1975). Works, Filartiga v. Pena-Irala:

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INDEX

abduction 109

Catholic Church 17

Abi-Saab, G. 11, 12

Charter of the United Nations, see

Ago, R. 125, 133

United Nations Charter

Amnesty International 80, 86

children 67, 142

apartheid 17, 50, 64, 74-79, 91,

Churchill, W. 25

93, 94, 102, 119, 121, 126,

Congress of Vienna 87, 102, 114

135, 137, 148, 160, 161

crime under international law 33,

Aquinas, T. 9 Argentina 108, 110, 122 Aristotle 9 Armenians, Turkish massacre of 42 attribution 68

aud dededere aut punire 134 Austin, J. 150 Austria 45, 87, 122

41, 49, 67, 73, 76, 127, 132 crimes against humanity 16, 25, 28, 33, 36, 37, 41-48, 50, 63, 64, 65, 66, 77' 107' 108, 110, 115, 119, 124, 134, 135, 137' 148, 152, 157, 159, 160, 161, 166 crimes against peace 16, 25, 28, 36, 41, 47, 107, 110, 115, 134, 148, 157, 161

Bangladesh 33, 34, 42

Czechoslovakia 25, 45

Bassiouni, C. 17, 42, 56, 67, 77, 87' 100, 115, 119, 120, 122 Bentham, J. 139, 150 Brownlie, I. 35, 101, 127 Bulgaria 42

Danzig 142, 143 discrimination 17, 7 4-7 6, 83, 89, 92-97, 119, 130, 144, 145, 161

224

Index

Draft Articles on State Responsibility 50, 79, 125, 126,

Guggenheim, P. 93, 152

127' 132, 136 Draft Code of Offenses against the Peace and Security of Mankind 41, 50, 77, 118, 124, 133-137, 159, 166 Dresden 32, 37 Duguit, L. 152, 153

Habermas. J. 7 Hart, H.L.A. 150 Harvard Research Draft Convention

extradition 70, 77, 85, 99, 116 Fenwick, C. 34 Finland 39, 122 Fitzmaurice, G. 34 forced labour 76, 88-89 France 25, 27, 32, 42, 82, 87, 105, 122 Gaja, G. 132 Garcia-Amador, F. 123, 124, 125, 152 genocide 17, 33, 50, 64, 65-73, 91, 93, 94, 111, 119, 121, 124, 126, 130, 135, 137, 148, 157 Genocide Convention 77, 78, 159, 164 German Democratic Republic 137 Germany 23, 27, 107, 117 GodS Graefrath, B. 127, 129 grave breaches 17, 33, 50, 64, 72, 78, 114, 157, 160, 161 Great Britain, see United Kingdom Greece 25, 82, 122 Grotius, H. 18, 149

101 Hempel, C. 8, 12 Hiroshima 32, 107 Hobbes, T. 150 humanitarian intervention 42, 66 humanitarian law 16, 17, 51, 52, 61, 62, 115, 135 Hume, D. 3, 4 imputability 20 International Association of Penal Law 119, 120 International Committee of the Red Cross 16, 51, 53 International community as a whole 128-132 International Court of Justice 71, 79, 139, 140, 143 International crimes 50, 54, 73, 74, 114, 118, 119, 122, 124-129, 131-132 international criminal court 24, 100, 116-122, 164, 166 international delicts 126 International Labour Organisation 16, 74, 89, 94, 143, 146 International Law Commission 13, 39, 41, 48, 50, 74, 79, 118-120, 123-128, 131-134, 135, 137, 154, 157, 166

225

Index international peace and security 40, 57, 75, 110, 126, 135, 136 Israel 62, 108-110, 112 Jessup, P. 151, 154 Jimenez de Arechaga, E. 131 Judge Moore, of the I.C.J. 105 jus ad bellum 16 jus cogens 53, 73, 86, 92, 128-132,

159, 167 jus gentium 103, 104, 109-110, 115 jus in bello 16 jus militare 103, 104, 110, 115

Kant, I. 3, 7 Kelsen, H. 3-8, 10, 33, 50, 150-151 Korowicz, D. 142, 152

Nazi 25, 27, 35, 36, 46, 67, 108, 109 Norgaard, C. 142, 152 nulla crimen sine lege 30, 35, 37, 156, 162 nulla poena sine lege 30, 37, 68, 156, 162 Nuremburg Charter 25, 28, 30-32, 33, 36, 37, 38-39, 41, 44-46, 47-48, 50, 55, 56, 57' 59, 66,

77' 134, 148, 159 Nuremburg Principles 32, 49, 124, 133, 158, 159 Nuremburg Tribunal28, 29, 32-33, 35, 38, 39, 44-46, 47, 49, 50, 53, 56, 58, 62, 66, 84, 107, 110, 118, 122

Kuhn, T. 6 obligations erga omnes 86, 129-132, Latin America 19 Lauterpacht, H. 151, 154 League of Nations 87, 117, 142, 143 Leipzig 23, 24, 27, 31 Lessnoff, M. 9 Marek, K. 127 mercenaries 137 military necessity 16, 28, 52, 55, 60 minority rights 143 Moore, G.E. 3 Moravia 45 Nagasaki 32, 107 natural law 5, 17, 18, 51

167 Oppenheim, L. 35, 150, 153 Organization of American States 147 Pakistan 34 Palestinian Liberation Organization 112 Paraguay 111, 113 piracy 102-103, 105, 106, 109-110, 114, 119, 148, 155 Plato 7 Poland 25 political offence exception 77 positivism 5, 7, 36, 48, 139, 150 Prussia 87 pure theory of law 4, 5, 7, 10

226 religion 2, 93, 94, 142

Index torture 17, 52, 55, 70, 75, 80-86, 113,

reprisal 55, 60-63

91, 94, 103, 111, 112,

Reut-Nicolussi 34

120-122, 146, 148, 157, 160,

Riphagen, W. 128, 133

164, 165

Roman law 17, 104

Trieste 142

Romania 69

tu quoque 63

Roosevelt, F. 25

Tunkin, G. 152

Russia, 42, 87, see also Union of

Turkey 23, 41-42, 47, 66, 105, 122

Soviet Socialist Republics U.S. Lieber Code of 1863 19 Saar 142

UNESCO 16, 17, 52, 94, 143, 148

Scelle, G. 151, 152

Union of Soviet Socialist Republics

Schwarzenberger, G. 12, 18, 19, 39, 104 science 4-7, 8, 9, 12, 21, 67 Security Council of the United Nations 40, 62 Sharia law 17 Sinclair, I. 127 slavery 17, 74, 87-92, 102, 103,

24, 27' 32, 75 United Kingdom 27, 32, 40, 42, 62, 81, 87, 122 United Nations Charter 15, 39, 40, 42, 53, 61, 62, 66, 71, 75,

93,

97' 101' 123, 129, 140 United Nations Commission on Human Rights 78, 82, 144, 145

114, 119, 126, 130, 157, 160, 161, 163 South Africa 74, 76, 78, 79, 161

United States 19, 22, 24, 27, 32, 37-39, 43-44, 56, 58, 60, 62,

Soviet doctrine 151-152

universal jurisdiction 77, 100,

Spanish Theologians 17

102-107, 109-110, 113-116

Spiropoulos, J. 49, 152

74, 101, 111-113

Upper Silesia 142, 143

Statute of the International Court of Justice 10, 33, 139 subject of international law 139, 140, 141, 151, 153-155

value 2-7, 93, 101, 115 Vattel, E. 18, 149 Verdross, A. 152

superior orders 19, 22, 26, 31, 48, 54, 55-58, 59, 95 Thiam, D. 134-137 Tokyo Military Tribunal 27

Waldock, H. 34

Index war crimes 16, 17-20, 21, 23-28, 29-34, 36, 37' 39, 43, 47' 49, 56, 57, 59, 62-64, 65, 66, 94,

103, 104, 107-108, 110, 115116, 119, 134, 148, 157, 159, 160, 161 Wittgenstein, L. von 2 women 93, 94, 144 Yugoslavia 25

227

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