Operation Condor

Reparatory justice in the confluence of international human rights law and international criminal law

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5. Reparatory justice in the confluence of international human rights law and international criminal law
46. Alongside the recognition of the individual’s ownership of rights, arising directly from international law (supra), contemporary legal writings have accepted the existence of obligations also attributed by international law directly to the individual. And – what it significant – grave violations of such rights, for example, by crimes against humanity, involve international individual criminal responsibility, irrespective of the provisions of domestic law on the matter.46 Contemporary developments in international criminal law have had a direct effect on the emergence of individual international criminal responsibility (the individual as both an active and passive subject of international law, possessor of rights and bearer of obligations arising directly from public international law (droit des gens)), and the principle of universal jurisdiction.
47. It is worth adding that the decisions of the United Nations Security Council to create the ad hoc International Criminal Tribunals for the Former Yugoslavia (1993) and for Rwanda (1994), added to the establishment of the permanent International Criminal Court by the 1998 Rome Conference to prosecute those responsible for grave violations of human rights and international humanitarian law (for acts of genocide, crimes against humanity and war crimes), gave new impetus to the international community’s struggle against impunity – as a violation per se of human rights – in addition to reaffirming the principle of the international criminal responsibility of the individual47 for such violations; thus seeking to avoid or prevent future crimes.
48. More than 50 years ago, the renowned Nuremberg Tribunal created a new paradigm by stating that individuals can be punished for violating international law, because crimes against international law are committed by individuals and “not by abstract entitles,” and only by punishing these perpetrators can the provisions of international law be implemented.48 This famous obiter dictum has effectively paved the way towards the development of international criminal law, which has filled a gap in classic international law, by seeking to end impunity.
49. However, this obiter dictum has never satisfied me completely, because it reflects only one aspect of the reality, by ignoring the State’s role in the perpetration of these crimes. Hence, the parallel development of international criminal law and international human rights law, whereas I consider that their convergence and complementarity should be fostered. Even though States appear to be “abstract entities” when providing basic services, such as free access to education and public health care, to employment and housing (often failing to comply with their obligations in these areas and alienating large segments of the population), they are very concrete realities when they punish, sanction, exclude, imprison, torture and murder “undesirables” – as revealed in this specific case as well as many others.

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