CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CONCEPT OF CRIMES AGAINST HUMANITY All States of the international community are entitled to invoke responsibility for breaches of this obligation erga omnes and to demand such a satisfaction. This entitlement in correlation depends on the duty to render this kind of satisfaction. In situations where the offender is present in another State’s territory or under its jurisdiction, it is this State which punishes the offender. This entitlement is stated by customary general international law. On the domestic level, it is explained by so-called universal jurisdiction, which means to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed. 23 However, States which may be willing but are either incapable or too weak to uphold their responsibility now may receive international support due to R2P (see above), that of the report of the above-mentioned International Commission on Intervention and State Sovereignty (ICISS). 24 The authority to employ the use of force under the framework of the “Responsibility to Protect” rests solely with the United Nations Security Council and is considered a measure of last resort. The more widely held opinion is that Article 51 (Chapter VII of the UN Charter) acknowledges this general right when an armed attack does occur. 25 When a state fails to protect its populations For the first time (broadly speaking) this was the case in the Kosovo War, in what was then a province of the Federal Republic of Yugoslavia. It lasted from 28 February 1998 until 11 June 1999, when Serbian troops had tried to remove, or rather eradicate, the Albanian population (ethnic cleansing). 26 The war ended with NATO military intervention, which forced the Federal Republic of Yugoslavia to withdraw its troops fromKosovo. The constituent peoples of Kosovo are Kosovo Albanians, who make up the majority of the population, and Kosovo Serbs. This was the first time arms were employed by the international community to enforce the rule of widespread or systematic attacks causing harm to a civilian population. At present there is also a recent application issue which targets a concrete State, North Korea. It is given by a 2014 resolution of the UN General Assembly called “Situation of human rights in the Democratic People’s Republic of Korea (DPRK)”, condemning the systematic, widespread and gross violations of human rights in the DPRK, including those that amount to crimes against humanity (A/69/188,18 December 2014); 116 in favor, 20 against, 53 abstaining. This was the demand of the Human Rights Council, its resolution 22/13, adopted on 21 March 2013, which established the Commission of Inquiry of the DPRK matters. The above-said resolution of the UN General Assembly called on the UN Security Council to also consider the recommendations of the Commission of Inquiry, including an International Criminal Court (ICC) referral. 27 The UN Security Council on 5. 25 See https://enwikipedia.org/wiki/Self-defence_in_international_law. See also Report of the International Law Commission, Fifty-third session, 2001, A/56/10, (Commentary to Article 26. Compliance with peremptory norms), p. 85, para. 4: “(…) a genocide cannot justify a countre-genocide”. 26 See https://en.wikipedia.org/wiki/Kosovo_War. 27 According to Article 13 of the Rome Statute of the Interational Criminale Court – Exercise of jurisdiction – “The Court may exercise its jurisdiction (…) if (a …) (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; (…).” 23 See https://en.wikipedia.org/wiki/Universal_jurisdiction. 24 More at https://en.wikipedia.org/wiki/Responsibility_to_protect.

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