Individual Responsibility and the Evolving Legal Status of the Physical Person in International Human Rights Law

Chapter 23
Individual Responsibility and the Evolving Legal Status of the Physical Person in International Human Rights Law

Ilias Bantekas

1. Introduction

Since the adoption of the UDHR1 in 1948 it has become clear over the years that state responsibility for human rights violations ought to be complemented by perpetrators’ individual responsibility under criminal and civil law. This chapter focuses on the concept of individual responsibility, according to which the ‘natural’ corollary of a human rights violation is the criminal liability of the perpetrator, not under domestic law, but under international law. We shall examine to what degree this concept is applicable to all violations of human rights, and not simply in respect to some of them. This involves an examination of the legal basis of human rights violations – as these are contained in human rights treaties – in order to assess whether they can substantiate a degree of criminal liability. In the opinion of this author, the concept of individual responsibility is inextricably linked to the evolving nature of the status of the physical person in international law. International human rights law has played a prominent role in this regard, particularly through the establishment of individual complaint mechanisms and the granting of locus standi to aggrieved persons. Another theme examined is the employment of extraterritorial jurisdiction by the family of nations in order to give meaning to the existence of criminal liability; promulgating offences and establishing criminal liability, but without any efforts to prosecute the accused gradually weakens the argument in favour of individual responsibility as a matter of acquiescence.

2. The Concept of Individual Responsibility and Relevance of ‘Space’

In contemporary international relations it may seem natural, and without serious challenge, that persons accused of serious violations of human rights or humanitarian law should be held criminally accountable for their actions. Indeed, to the layman, international criminal justice is no other than a natural extension of domestic criminal justice to the international arena. In reality, none of these assumptions are natural or granted. In fact, if one tries to separate the ‘national’ from the ‘international’, this will turn out to be an impossible exercise, for the sole reason that the only truly international spaces are located in the seabed beneath the high seas, the high seas themselves, and outer space. Apart from piracy jure gentium, relatively few battles are waged on the high seas by sovereign armies, thus leaving few truly international offences, in terms of spatial characteristics at least. In this respect, the only natural line of reasoning suggests that, in fact, the concept of international crime is a matter of fiction and that in reality crimes, even of a large magnitude, are domestic – except of course for inter-state armed conflicts, or incursions by elements of one state into the territory of another.

This line of reasoning, however, only defines the territoriality of crime (the locus delicti commissi), but tells us nothing about the other contours of criminal activity, such as its impact on the population of the target state, or that of other states and their governments, the threat to international peace and security, its possible financial cost, and other factors. These elements serve to internationalize both our interest in what are otherwise domestic crimes, but they moreover tend to internationalize, in fact, the crimes themselves. Accordingly, since space is an integral part of sovereignty, its potential irrelevance in favour of other contours necessarily signals also the erosion of sovereignty in the field of criminal justice. This type of erosion is only of recent vintage and its legal and political nature will occupy us throughout this chapter. Given that nations hold on to all elements of their sovereignty with vigour, if criminal justice is to be internationalized it will not become so without a struggle from the forces that keep it from this condition.

The concept of individual criminal responsibility in international law essentially entails that he who has committed an international crime bears not only domestic criminal responsibility, but also, and moreover, international criminal responsibility. There are two distinct, but interwoven, elements applicable to this concept. The first is that the accused is liable under the definition of the crime as this is found in international law and not in accordance with that crime’s definition in domestic law. For example, the act of beating prisoners in order to attain a confession may merely constitute a minor assault in the country where the offence took place, but because this act constitutes the international offence of torture, the domestic definition is irrelevant. The criminal liability of the accused will thus be measured in accordance with the definition of the offence under international law.2 The second element of the concept of individual responsibility relates to jurisdiction. Jurisdiction in this context refers to the power of a state or an interstate institution (such as an international tribunal) to prescribe and enforce its laws or statutes vis-à-vis natural persons. Hence, even if the torturer in our previous example is liable under international, rather than national, law, we still need to determine a forum in which he or she may be prosecuted. The fact that a person accused of an international crime is prosecuted before a domestic criminal court does not render the offence itself less ‘international’ than had the case been referred to an international criminal tribunal. Jurisdiction for international crimes has become very complex in the last two decades, particularly with the rise of ad hoc tribunals, some with wide-ranging and others with limited powers; a permanent international criminal court that shares complementary, yet secondary, jurisdiction with its member states; internationalized domestic tribunals; and an interest from some states to enforce universal jurisdiction. In any event, none of the international crimes prosecuted in these tribunals or national courts have been described as a domestic offence.

3. International Legal Personality Versus Sovereignty

In the previous section we determined in what ways an otherwise domestic crime may become internationalized, other than by its spatial characteristics. It was also pointed out that when an offence is also defined under international law, it is that definition which supersedes all its domestic counterparts in terms of normative superiority. The two aforementioned elements of individual responsibility, however, are without meaning if the legal status of the physical person is not such that allows him or her to be physically prosecuted under international law. The answer to this question turns on the amount of legal personality granted to physical persons. Legal personality itself means being granted rights and duties under a particular legal system and subsequently possessing the power to enforce one’s rights or have one’s obligations enforced against oneself. Human, or other, rights prescribed under constitutional or statutory instruments in any domestic legal system provide the right holder with a legitimate entitlement and a capacity to enforce such rights before the full gamut of that country’s national courts. The same is true in respect of obligations, and a person will be prosecuted if he fails to fulfil his military duty where he is obliged to do so, or where a person commits an offence prescribed by that country’s criminal laws. Domestic legal personality, that is, the granting of rights and duties, is not the same for all the citizens within a given state. Workers in a particular industry will benefit from privileges that are not enjoyed by the entire national workforce, certain persons will be exempt from paying taxes or from being enlisted in the armed forces, and minors as well as the mentally handicapped will not be allowed to exercise the full range of the contractual freedoms that are generally open to those above a certain age or of sound mind.

Legal personality exists also in the international legal system, but is differentiated by the fact that, unlike the vertical power structures of domestic legal systems, its formulation takes place within a largely horizontal power structure.3 Apart from the binding authority of the UN Security Council, international rules are borne by the consensus of interested nations and are not unilaterally imposed. The entities with ‘primary’ international legal personality are states, followed by international organizations and lastly by physical persons (and to some degree by constructions or extensions of physical persons, such as non-governmental organizations (NGOs) and multinational corporations). It is only natural that the rights and duties granted upon physical persons in the international legal system are granted by states and to a lesser degree by international organizations. Individuals, or associations of individuals, cannot confer on themselves rights or duties under international law, since this would require the conclusion of a treaty or a customary rule,4 which is the exclusive domain of states. States have reluctantly been conferring rights and duties on individuals in the international legal system since at least the middle of the nineteenth century, albeit to a very limited degree and in a very selective manner. Piracy jure gentium was the primary hallmark, followed by war crimes committed in international armed conflicts, and then only as a matter of entitlement for the winning belligerent power. Although there was no doubt that the consistent practice of states in the field of piracy jure gentium gave rise to an international crime and international criminal liability, this was not the case with war crimes. For one thing, piracy jure gentium took place on the high seas (i.e. an international space), whereas war crimes took place within national boundaries. In a time of constant inter-state armed conflicts, states were thus keen not to render war criminals generally subject to international law, but only exceptionally. The objective, of course, was to avoid creating a general rule of liability, which could later be used to prosecute one’s own military or civilian personnel before an international or domestic tribunal. In this state of affairs, the physical person was an entity inextricably linked to the legal person of the state, in the same manner as the state’s ships, land and immovable property. Every act of the individual was attributable to the state, and he or she had no separate or distinct identity in the international legal sphere.

This position is well reflected in the early treaties addressing humanitarian concerns that were concluded in two rounds at The Hague, in 1899 and 1907, as well as in the views of the victorious delegates following the end of World War I and the setting up of a commission in 1919 to assess whether those who committed crimes during the war were liable under international law and should be punished by an international tribunal.5 The Hague Peace Conferences of 1899 and 1907 culminated in the adoption of a substantial number of conventions regulating, inter alia, military conduct in land and sea warfare. Despite the detailing of prohibitions and acceptable practices, especially in the 1907 Hague Convention IV6 and the Regulations annexed thereto, no sanctions were expressly prescribed.7 A number of international agreements enacted in the next two decades failed to circumscribe appropriate penal mechanisms. Instead, they obliged states parties to pass implementing criminal legislation,8 some promulgated new prohibitions,9 and, in one case, reference was made to a limited personal liability through the means of universal jurisdiction.10 The common understanding of the international community at the time with respect to these general conventions was that the obligations addressed therein were addressed to states at the international level, with a subsequent obligation to transpose the criminal aspects of these provisions at the domestic level. This is not apparent in the text of the conventions themselves! Thus, the prohibition of denying quarter in the 1907 Hague Regulations effectively meant that if quarter was denied to an enemy combatant (i.e. an enemy combatant’s surrender was not accepted by the capturing entity), liability befell the capturing state under international law and not the individual(s) that committed the offence. This responsibility is obviously one of the state and not a criminal one. The responsibility of the state to criminalize all conduct prohibited in these conventions and punish the perpetrators at the domestic level must have been presumed as part of the signatories’ general obligations under the terms of the convention. It is clear, however, that the criminal elements of the prohibited conduct were reserved only for the domestic legal orders.11

Exceptionally, and despite the absence of direct criminal provisions in any international jus in bello convention, and the reluctance of the Allies to establish a tribunal throughout and shortly after World War I, a significant number of war crimes trials were conducted by French, Russian, British and US military tribunals against captured German combatants.12 Moreover, the 1920 Peace Treaty of Sèvres, which made provision for the trial of those Turkish officials responsible for violating the laws and customs of war and of engaging in the Armenian massacres during their 1915 campaign of annihilation,13 was superseded by the 1923 Treaty of Lausanne, which contained a declaration of amnesty for all offences committed in 1914–22.14 The granting of an amnesty, however, can only mean that criminal liability at the international level must have somehow existed. Following the Armenian genocide, the governments of Great Britain, France and Russia had issued a declaration denouncing the atrocities as ‘crimes against humanity and civilization’, further noting the criminal culpability of all members of the Turkish government and its agents.15 Similar pronouncements of a criminal nature at the international level were introduced in other specialized treaties, particularly Articles 228–30 of the Treaty of Versailles of 28 June 1919,16 Article 173 of the Treaty of St. Germain of 10 September 1919,17 and Article 157 of the Treaty of Trianon of 4 June 1920.18 These agreements recognized the personal liability of offenders and the right of the allies to try them before military tribunals.19

It is thus obvious that despite the shared understanding of the then international community regarding the lack of individual criminal responsibility for violations of humanitarian law, there was room for some exceptions. These were victor’s justice exceptions and were by no means presumed to form, let alone crystallize, a new rule of international law. However, as we shall see in the following section, once one allows some exceptions and allows the floodgates to open, it is a matter of time before there are demands that the exception become an entrenched rule. Under pressure from public opinion and the rapid flow of events, it inevitably becomes extremely difficult to justify the maintenance of the exceptional rule. This was exactly the effect of the Nuremberg legacy.

4. The Nuremberg Legacy and the ‘Rebirth’ of Individual Responsibility

In the previous section we detected the gradual, yet expressly exceptional, erosions to an otherwise international system that saw no place for the physical person. This is not detrimental in itself and one should not make too much out of it, but instead one should strive to assess why and to what degree individual criminal responsibility is required at the international, rather than the national, level. Ideally, prosecutions for international crimes should take place in the country where the offence was committed, with the assistance of those other states that possess material evidence, witnesses or other co-accused. In this manner, local knowledge and familiarity with the terrain and the circumstances will aid prosecutorial efforts and the sovereignty of the locus delicti commissi will not be compromised. Moreover, from a logistical point of view, such a process will minimize expenses. We do not, however, live in an ideal world, and as a result a vital ingredient is usually lacking in the inter-relations of states; trust. The practice of states during the course of the twentieth century suggests that the prosecution of one’s own nationals for serious violations of international human rights law, such as crimes against humanity, genocide or torture, leads to a perceived assimilation of the state, its people, and its government with the perpetrators.20 This is not far off the mark, and the media and popular culture have contributed to this perception.

In yet other circumstances, as is the case with the USA, the prospect of international prosecution of its armed forces members is perceived as a disincentive for serving on US military missions abroad and is deemed an anathema.21 Conversely, even a sophisticated democracy such as the USA, with a thorough and liberal legal system, falls prey to its own prejudices and refuses to grant fundamental human rights to persons captured in the course of the ‘war on terror’.22

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