2. The complementarity between the international responsibility of the State and that of the individual 39. An additional element for an approximation to the complementarity between international human rights law and international criminal law resides in the area of responsibility, encompassing, in my opinion, at the same time, the State and the individual (as subjects of international law). As I have been indicating since my separate opinions in the Myrna Mack Chang (2003) and Plan de Sánchez Massacre (2004) cases among others,38 and in a recent essay,39 the State’s international responsibility and the international criminal responsibility of the individual are effectively complementary.
3. The conceptualization of crimes against humanity 40. A third point of approximation to the intersection between international human rights law and international criminal law resides in the conceptualization of crimes against humanity, which they both include. Such crimes are perpetrated by individuals, but following State policies, with the powerlessness or tolerance or connivance of society, which does nothing to prevent them; explicit or implicit, State policy is present in crimes against humanity, which even rely on the use of State institutions, personnel and resources.40 Such crimes are not limited to a simple isolated action of deluded individuals. They are coldly calculated, planned and executed.
41. The definition of crimes against humanity is a major contemporary victory, encompassing, in my opinion, not only international human rights law but also international criminal law, by reflecting the universal condemnation of grave and systematic violations of fundamental and non-derogable rights; in other words, violations of jus cogens. Consequently the so-called statutes of limitations typical of domestic or national legal systems are not applicable.41 The establishment of crimes against humanity is, I believe, one more manifestation of the universal juridical conscience; of its prompt reaction to crimes that affect humanity as a whole.
42. Crimes against humanity are situated at the confluence between international criminal law and international human rights law. They are particularly grave and originated in the crimes against humanity linked to armed conflicts; however, nowadays it is accepted, from a humanist perspective, that they also have implications in the domain of international human rights law (for example, in cases of the systematic torture and humiliation of the victims), which deny humanity in general and seek to dehumanize their victims.42 Crimes against humanity are of a massive and systematic nature, they are organized and planned as part of a policy of State crime – as conceptualized in their case law by the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda43 - they are authentic State crimes.44
43. Organized and planned by the States, at their most senior levels, State crimes are executed by many individuals complying with a criminal policy of the State in question, constituting authentic State crimes, which immediately involve the international responsibility of both the State in question (in the sphere of international human rights law) and that of the individuals who executed them.45 Hence the importance of preventing them, given their particular gravity, as well as the guarantee of non-repetition (cf. infra).