CYIL 2015

JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION the world’s first genocide trial based on United Nations policy, as well as the first trial of a head of government on a human rights related charge. The long-lasting horror decimated the whole population, so that only the new generation was able, after 22 years, to punish the KR functionaries still living (Pol Pot died in 1998, Ieng Sary in 2013) – with the help of the United Nations, moreover, which, by treaty, provided the organization and form of this new genocide trial. 42 Cambodia invited international participation due to the weakness of the Cambodian legal system and the international nature of the crimes. The agreement with the UN details how the international community will assist and participate in the Extraordinary Chambes . This special new court is a Cambodian domestic court (ECCC) with international participation that will apply international standards. 43 The ability and willingness of the holder of territorial sovereignty (the State which has jurisdiction over them) to punish pertinent perpetrators of a crime under international law is a typical feature of a peremptory norm – thus also that norm prohibiting committing genocide. 44 At the present time the violators of this concerned prohibition are the radical Islamic irregular forces of the so-called Islamic State of Iraq and the Levant (ISIL), 45 which are mostly fighting in Syria and Iraq (genocide of the Yazidis); in Nigeria they are called Boko Haram, 46 and in Somalia al-Shabaab . 47 These Islamist terrorist movements have a part of their territory in the countries named under proper control, and, in relation to the population living there, they are responsible for the genocidal mistreatment of heterodox persons (that is, ‘convert to Islam or die’) and for civilian casualties in general. 2.2.2 Crimes against humanity Up to now, withinChapter 2 ( et supra ), we have dealt with the human being’s inherent right to life as well as his rights to physical and psychical integrity. Now attention will be paid rather to human dignity, including humiliation or degradation of a human being. In respect to this the Rome Statute of the International Criminal Court is rich 42 See http://legal.un.org/avl/ha/abunac/abunac.html Here the text of Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea (Phnom Penh, 6 June 2003). 43 See http://en.wikipedia.org/wiki/Khmer_Rouge_Tribunal. 44 About this principle see http://www.pgaction.org/programmes/ilhr/icc-complementarity.html. The principle of complementarity respects also the Rome Statute of the International Criminal Court, UNTS, vol. 2187, p. 3; Art. 17 – Issues of admissibility (1). “(…) the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (…)”. 45 See http:// en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant. 46 See http://en.wikipedia.org/wiki/Boko_Haram. 47 See http://en.wikipedia.org/wiki/Al-Shabaab_(militant_group).

125