Law

The conceptual positioning of national sovereignty within the framework of constituting authority and control permits us now to see the importance of the fact that there are many other participants in the global community, power, and constitutive process. As a technical matter, the question of whether an international organization, such as the United Nations, could have an international legal personality for the purpose of suing another state at the international level was decided by the World Court in a case called The Reparations Case. In this case, the World Court recognized that even though the United Nations was not a state, it was nonetheless an organization with an international legal personality and the right to sue or otherwise act in the international environment within the framework of its constituted competence.

It was the Nuremberg Tribunal that, in fact, opened the breach to the possibility that individuals might have some sovereignty in the international legal environment. The Nuremberg defendants were made directly accountable for war crimes and crimes against humanity under international law. But these defendants were also given the right to a fair trial under international law. They not only had duties under international law, but they could also exercise rights. Thus the narrow principle was established that individuals could have rights directly under international law; for some purposes, the individual could exercise these rights and, thus, rights and duties in international law were not confined to formal sovereign entities. Two important developments were born of these events. The first was the development of the human-rights provisions in the UN Charter through the Universal Declaration of Human Rights (UNDHR) and the extensive treaty-based regime for the protection of global and regional human rights. The preamble of the UNDHR states that member states recognize:

[T]he inherent dignity and … the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world … [and] disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people … [and that] it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

The second development was that in the aftermath of the Cold War, two ad hoc tribunals were established to try governmental officials and others for humanitarian and grave human-rights violations. The relative successes of the International Criminal Tribunal for the Former Yugoslavia (ICTY; 1993) and the International Criminal Tribunal for Rwanda (ICTR; 1994) provided a renewed impetus for the creation of an International Criminal Court (1998), which was indeed established. It is therefore critical that we see the development of international legal order since the 1970s as having finally been able to capitalize on the revolutionary breakthrough established at Nuremberg, where it was determined that individuals could not hide behind the veil of the state when they committed horrendous crimes against the peace and against humanity. For example, Article 7 of the Statute of the International Tribunal for the Former Yugoslavia and Article 6 of the Statute of the International Tribunal for Rwanda harmonize on the issue of individual criminal responsibility. Both state that:

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

With regard to Yugoslavia, the former president of that country was tried in The Hague in the early 2000s, and in Rwanda, high governmental officials had already been convicted. The question is, what do these events mean for the history of ideas?

These ideas establish the revolutionary principle that, both politically and juridically, the international community may directly hold governmental officials to account (in certain circumstances) and punish them accordingly. It also establishes that the conditions of governance, such as transparency, responsibility, and accountability, are integral features of the authority foundations of the state, and therefore the normative foundations of the state itself have changed on a continuum that moves from state absolutism to rooting governance and constitutionalism in the foundations of authority. What is even more critical as a complement to these developments is the growth not simply of human-rights law, but of human rights as an integral part of governance and constitutionalism and as a deeply rooted expectation in the political and legal culture of the global community. What is important in these developments is that the human-rights culture finds strong intellectual roots in the development of rights-based jurisprudence, as well as in the jurisprudence that roots law in fundamental policy. The rights-based approach seeks to ensure that individual rights are taken seriously. The policy-based approach insists that law be responsive to the claim, the identity, and the fundamental expectation of the individual participation in the international legal and political environment. Central to each concept is the idea of fundamental respect, which is seen as the heart of responsible constitutionalism and accountable sovereignty, and which is fundamental to all human rights.