CYIL vol. 8 (2017)

ČESTMÍR ČEPELKA CYIL 8 ȍ2017Ȏ above, isolated incidents of violence or crimes committed for purely private purposes are not included in the definition. The injury caused by the incriminated act is a harm affecting the whole community of a State. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes . 17 All States are then entitled to invoke responsibility for breaches of obligations to the international community as a whole. This erga omnes relation is a typical feature only for peremptory norms or jus cogens, the highest standing in international legal norms. 18 Mostly and normally, obligations are owed by States to each other and each is only individually entitled to invoke a breach as a basis for State responsibility. The bilateralism of international law thus means that international law obliges States reciprocally in their relations inter se. 19 The legal consequences of the above-said infringement concern only a small number of norms which are then qualified as peremptory. These norms seek to ensure the existence of States (by the prohibition of resorting to force) and their inhabitants as well as most basic human values. States are obliged by peremptory norms, therefore States are also required to punish the perpetrators of the incriminated attacks directed against the civilian population. This is the request of one of the forms of the reparation of the internationally wrongful acts called satisfaction. As has been set down in the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), 20 punishment is one of the means to give satisfaction for the injury caused. The final version (2001) mentions the punishment of guilty individuals only in the commentary to the provision of satisfaction (Art. 37). 21 Explicitly, however, this punishment is stated in the first reading version of 1996. 22 the conduct of persons shall be considered an act of a State if these persons are in fact acting under control of that State ( de facto organs). 17 Which is a Latin equivalent to “towards everyone/all”. 18 See Vienna Convention on the Law of Treaties (1969), Article 53. Treaties conflicting with a peremptory norm of general international law ( jus cogens ): “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent 20 Yearbook of the International Law Commission , 2001, Vol. II, Part Two, Responsibility of States, Article 34 – Forms of reparation – “Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction (emphasis added) , either singly or in combination, in accordance with the provisions of this chapter.” 21 Report of the ILC on the work of the fifty-third session (2001), Chapter IV: State responsibility, p. 106, para 5: “(…) The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance. Many possibilities exist, including (…) penal action against the individuals whose conduct caused the internationally wrongful act”. 22 Report of the ILC on the work of its forty-eighth session , 1996, Draft articles on state responsibility with commentaries thereto adopted for the first reading. Article 45 Satisfaction (…) “(d) in cases where the internationally wrongful act arose from the serious misconduct of officials or from criminal conduct of officials or private parties, disciplinary action against, or punishment of, those responsible.” 4. Legal consequences of a breach of an obligation resulting from juris cogentis rules norm of general international law having the same character.” 19 See also http://en.wikipedia.org/wiki/Synallagmatic_contract.

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