CYIL vol. 8 (2017)

JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ not by abstract entities...” On the other hand, the Draft Articles did not take into account, we may say ,,penal measures” against Germany embodied in the Potsdam Agreement. 30 In the Commentary to Draft Article 26 (para 5) it was stated that “peremptory norms that are clearly accepted and recognized include the prohibition of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination”. According to the commentary (art. 26, para 5), the criteria for “identifying peremptory norms of general international law are stringed”. Nevertheless, equivocations and confusion may arise in practice with interpretation of the notions of “aggression”, “crime of aggression” or the right of or to “self-determination”. Crimes against peace were not mentioned here at all. 31 It is worth mentioning that e.g. M. Cherif Bassiouni, speaking about international crimes, maintains that “ jus cogens refers to the legal status that certain international crimes reach.” At the same time he mentions that “obligatio erga omnes pertains to the legal implications arising out of a certain crimes characterization as jus cogens ”. In his view international crimes that “rise to the level of jus cogens ” constitute obligatio erga omnes which are inderogable. 32 In respect to the consequences of recognizing an international crime as jus cogens , Bassiouni offers the “threshold question” of whether such a status places obligations erga omnes upon states or merely gives them certain rights to proceed against perpetrators of such crimes. In this writer’s view, the implications of jus cogens are “those of a duty and not of rights”, otherwise “ jus cogens would not constitute a peremptory norm of international law.” 33 The ILC generally took the position that the term ,,international crimes” are concerned with the (penal) prosecution of individuals only and not with criminal behaviour of states. It was e.g. argued that the Rome Statute for an International Criminal Court of 17 July 1998 likewise establishes jurisdiction over the most serious crimes of concern to the international community as a whole but ,,limits” this jurisdiction to ,,natural persons” [Art. 25(1)]. This article at the same time specified that no provision of this Statute ,,relating to individual criminal responsibility shall affect the responsibility of states under international law. 34 International crimes were defined as breaches 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 the community as a whole. Art. 19 (3) of the 1996 Draft Articles provided examples of international crimes of states. It was mainly R. Crawford as a special rapporteur who expressed his fundamental doubts about the notion “international crimes of states”, indicating their criminal responsibility when “the only penalties ever imposed on states after judicial process have been civil penalties or fines within the framework of European Union (EU).” He wrote in 2006 that “strong reservations” as to the terminology of crimes were expressed within the ILC and in the comments of many governments, although 30 In the author of this essay’s view, the partial loss of territory and other measures taken by the Allied Powers after. World War II against Germany may be characterized as „penal measures“. This is, however, a controversial topic. There is widespread legal literature on the concept of international crimes and the criminal responsibility of states. Penal responsibility of „judicial persons“ has been recognized in many national law systems. 31 See Commentary in CRAWFORD, J. The International Law Commission’s Articles on State Responsibility, Introduction, Text and Commentarie s. Cambridge University Press, 2003, p. 188. 32 BASSIOUNI, M.CH., International Crimes; Jus Cogens and Obligatio Erga Omnes. 59 Law and Contemporary Problems , [Vol. 59: No. 4], p. 63. 33 Ibid, p. 65. 34 Roma Statute of the ICC, 17 July 1998, A/CONF.183/9, Art. 25(4).

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