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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
As the Essay will demonstrate, idea of inviolability
of state sovereignty is no longer that
integral, when protection of human beings from
mass violations of human rights is at stake.
Development of human rights law, introduction
of an idea of humanitarian intervention
and no plea of immunities whatsoever before
international tribunals signals this. Concern
must be expressed in relation to domestic tribunals
that are not entitled to fully exercise
universal jurisdiction and the concept of judging
criminal leaders is basically confined to
judicial institutions created under international
authority 31 . Writing in 1994 Sir Watts noted,
that “it is […] to be cautious about the extent
to which a restrictive rule of State immunity is
sufficiently generally supported throughout
the international community to be yet established
as a rule of customary international law:
the trend towards adoption of the restrictive
view is strong, but it cannot yet be said to enjoy
consensus. 32
Advancement of human rights law in 20 th
century determined support of human rights
more than inviolability of certain highest level
state officials, representing a state and thus
covered by different immunities. This transformation
was accompanied with the march of
development of human rights notion since the
World War II: human rights are no longer “domestic
matter of a state.” 33
Therefore, it follows that despite huge importance
attaching to the protection of sovereign
equality of states, protection of human beings
from atrocities must be valued more and
political consideration shall be determined and
to certain extent substituted by considerations
of necessity of protection of humans from the
evil emanating in many cases from own government.
Meanwhile, concept of humanitarian intervention
seems to have emerged and even
secured support of a number of respected international
law scholars 34 , not to mention the
support of states which recognize this concept
as lawful. Now developments also move towards
recognizing “outlaw” states 35 . Observing
these novelties, it can be argued that protection
of immunities can not stay unconditionally
intact. If the international community can
decide to “outlaw” the states leaders of which
perpetrate international crimes, an argument
follows that domestic courts of the same states
may be permitted to exercise universal jurisdiction
to prosecute the perpetrators, disregarding
the different immunities they may have
the benefit of.
The subsequent chapters of the Essay will
focus on correlation of notion of immunities
and individual criminal responsibility for international
crimes on the one hand and relatively
newly emerged concepts of humanitarian
intervention on the other. However, it is important
to mention them at this stage as well, to
demonstrate that the old notion of state sovereignty
has lost its original importance not
only in relation to separate individuals (despite
their rank), but in relation to entire countries,
in a sense of entire territories within a given
state boundaries. Comparison of these notions
will once again demonstrate that concept
of immunities may not be appealed to so courageously
any more, as these newly materialized
notions incur and imply responsibility of
not only individual criminal leaders of any given
sovereign state, but “punishment” of entire
state. Consequently, it may be concluded
without restraint that even if immunities and
protection of sovereign equality of states did
matter more than protection of human beings
from massive atrocities, this does not hold true
any more.
III. HOW DOES THE NOTION OF INDIVIDUAL
CRIMINAL RESPONSIBILITY FOR GRAVE
INTERNATIONAL CRIMES CORRELATE
WITH IMMUNITIES
A problem related to prosecuting criminal
leaders protected by immunities and involved
in perpetration of international crimes emerges
as a rule when exercise of universal criminal
jurisdiction by domestic courts of states is
considered. Surfacing question in this regard
is as follows: Can it be claimed that international
law has always straightforwardly supported
absolute immunity and inviolability of
the highest ranking “well-protected” 36 To analyze
this, an overview of recognition of individual
criminal responsibility for international
crimes is apt: examining advancement of the
concept of individual criminal responsibility of
high ranking state officials gives a possibility
to glance over the progress in developing the
notion of charging and judging the criminal
leaders for international crimes, irrespective
of their immunities and privileges. These transformations
served as considerable challenge
to the idea of state immunity in respect of in-
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