CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESPONSIBILITY OF STATE AND RESPONSIBILITY OF INDIVIDUAL … the particular conduct in question, and on its lawfulness or otherwise under the applicable rules of international law”. 31 Subsequently, it might be interpreted in the light of the cited commentary (although we must remember that the commentary of the ILC refers to the responsibility of states not such entities as ISIS,) that ISIS despite the fact that it is not a legitimate subject of international law, could still bear the responsibility because of the unlawfulness of its conduct. It is true at this point that there are not any international courts to adjudge such unlawful actions of such an entity as ISIS, and clearly international law needs to adopt new, specific rules to give a response referring to the collective responsibility of an entity not recognized as a legal person in international law, especially given that operating drones or weaponized machines by such an entity is not science fiction anymore but reality. At the moment the only possibility to react to the crimes of ISIS (including its illegitimate using of the technology of drone warfare) in international law is to prosecute the members of this entity for the crimes committed by them before international criminal tribunals. 32 This possibility is however very limited due to limited jurisdictions of existing criminal tribunals and the International Criminal Court, which will be developed below. Criminal responsibility of individuals in international law Current forms of individual responsibility started to develop with the establishment of war crimes tribunals (in Nuremberg and Tokyo), the International Criminal Tribunals for former Yugoslavia and Rwanda (ICTY, ICTR), and the International Criminal Court (ICC). For the last 60 years lawyers have been working to create and strengthen an international legal regime that holds individuals accountable for war crimes they commit and to prevent the commission of international crimes. The essential principle of ICL is to ensure the accountability of an individual for committed crimes. This was articulated in the Nuremberg principles, 33 specifically principle I states: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment”, and in the regulations of Geneva conventions of 1949, 34 under which States parties to the Conventions are obliged to criminalize grave breaches and to investigate and either prosecute or extradite for trial those allegedly responsible for perpetration of such breaches. Similarly, statutes of international tribunals focus on prosecution of persons responsible for serious violations of international humanitarian law. 35 The rule of attribution of international responsibility to the individual is not complicated. It entails establishing that the crime was committed, also who is a perpetrator of the crime, 31 Ibid. , p. 51. 32 I am leaving aside the question of responsibility before the national courts and the context of universal jurisdiction. 33 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, in Yearbook of the International Law Commission, 1950, vol. II, para. 97. 34 Geneva Convention of August 1949: on Wounded and Sick in Armed Forces in the Field (I), art. 49; on Wounded, Sick and Shipwrecked of Armed Forces at Sea (II), art.50; on Prisoners of War (III), art. 129; on Civilians (IV), art. 146, see texts on line: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp. 35 See for example article 1 of ICTY Statute (on line at: http://www.icty.org/x/file/Legal%20Library/Statute/ statute_sept09_en.pdf), or article 1 of the ICC Statute, and article 1 of Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (on line at: https://www.eccc.gov.kh/sites/default/files/ legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf). 3.

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