CYIL vol. 8 (2017)

KAROLINA WIERCZYŃSKA

CYIL 8 ȍ2017Ȏ

3.2 Non-state actors responsibility The question of the differentiation of the responsibility of a state from the responsibility of an individual becomes also debatable when it comes to the problem of the actions of non- state actors as terrorist groups. As to the former, international law is primarily inter-state law, it was formed by states and for states mainly – it is not designed to deal with extremist groups acting as non-state actors such as Al-Kaida, or more visibly ISIS. Those groups, as already mentioned, are not the subjects of international law, they do not possess legal personality, but this does not mean that they do not have rights or duties under the system of international law. On the contrary, individual members of such groups are protected by human rights conventions; some basic human rights must be attributed to every human being. 44 Additionally, certain duties/responsibilities can easily be mentioned either. The individuals shall at least act in accord with universal acts of international law and shall be responsible for any breaches of humanitarian or international criminal law. With no doubt some norms of the Geneva conventions and the Convention on genocide are characterized in international law as having the character of peremptory norms, so called jus cogens . They shall be respected by everybody and always, consequently every individual is responsible for not breaching the peremptory norms. Personal responsibility is independent of the legal personality of a represented group. Amember of ISIS could be prosecuted as any other person, regardless of declared nationality and the territory where the crime was committed, but only under certain conditions. There are only a few international tribunals which could exercise criminal jurisdiction. 45 For example the ICC 46 exercises jurisdiction over persons for the most serious crimes. Its jurisdiction refers only to nationals of those states which accepted the jurisdiction of the Court. It can exercise its jurisdiction towards a state which is not a state party when the state lodged the declaration accepting the Court’s jurisdiction or when the situation was referred to the Prosecutor of the ICC by the United Nations Security Council (UNSC) acting under chapter VII of the United Nations Charter (articles 12 and 15 of the Rome Statute). This means that the member of ISIS could be prosecuted as a member of a state party to the statute, or a national of the state which accepted the jurisdiction of the ICC by way of the declaration or, if a situation was referred by the UNSC to the Prosecutor. The situation of nationals of Libya or Syria shows, however, that the crimes committed there will not be prosecuted, because Syria and Libya are not state parties to the statute, and neither did they lodge the declarations accepting the jurisdiction nor was there a referral from the UNSC. The usefulness of the ICC is reduced by the limitations of its jurisdiction. Such a conclusion refers equally to the Al-Kaida fighters and ISIS fighters, as well as ISIS operators of drones, or other unmanned weapons. Therefore the only hope for effective prosecution of the crimes committed by the members of ISIS or Al-Kaida lies in the jurisdiction exercised by states. Just as the responsibility of corporate subjects was left to be regulated by states – equally the question of the responsibility of 44 At least some basic rights may be mentioned as prohibition of the arbitrary deprivation of life, and an absolute prohibition against torture, cruel, inhuman or degrading treatment or punishment, prohibition of slavery, see esp. articles 6, 7 of the International Covenant on Civil and Political Rights, UNTS 999, p. 171. 45 The ICTR already concluded its work. The ICTY is just closing its jurisdiction (its mandate expires in December 2017), other still existing international criminal tribunals, as for example Extraordinary Chambers in the Courts of Cambodia, have very limited jurisdiction, especially referring to ratione loci and ratione materiae , see note 35. 46 Rome Statute of the International Criminal Court, UNTS 2187, p. 3.

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