The individual as perpetrator in international law
Individualisation. According to Larissa van den Herik, Professor of International Public Law, this is the most important development in the enforcement of international law since the Cold War. Inaugural lecture 29 June.
Van den Herik sketches the development of enforcement mechanisms in international law: starting with the Congress of Vienna in 1815, through the foundation of the League of Nations after World War I and the UN after World War II, all the way to the current implementation of international criminal law and the sanction regimes of the Security Council.
Since the end of the Cold War, international law has focused on protecting individuals against war violence and against crimes against humanity. But it is also individuals who are being put on trial at the International Criminal Courts in The Hague (Mladic, Taylor) and they are the people at whom the economic sanctions of the UN Security Council are aimed. Kaddafi and his family, for instance, but also all those individuals on the lists of suspects with ties with Al-Qaida. Modern-day international criminal law is based on individual responsibility.
This individualisation is generally seen as a major step forward, says Van den Herik. Economic sanctions against entire states, such as Iraq, were in the past disastrous for the population and led to sharp criticism regarding violations of human rights.
But this trend of individualisation and enforcement against individuals at a central international level also leads to problems. For instance, the International Criminal Court cannot handle the massive numbers of violators of human rights and perpetrators of international crimes. A more fundamental problem is that individuals who are on the sanction lists in turn appeal, often successfully, to the European Court of Justice for their right to legal protection.
The need to find solutions for these problems has led to radical institutional changes within the UN. For instance, following a notorious case at the European Court of Justice (the Kadi case), an ombudsman was established at the Security Council, whose job is to focus especially on the Al-Qaida sanction regime. He has to ensure that people are not unjustly placed on the list and that they are warned that they have been placed on the list.
These are critical times for targeted UN sanctions, says Van den Herik. Not all states provide the ombudsman with the information required. The US actually only trusts its own institutions. The EU keeps harping on about correct procedures. Often the question is raised whether UN sanctions and ICC cases are the most effective way to serve world peace. Nevertheless, the UN sanctions and ICC prosecutions play an important role in signalling world disapproval, concludes Van den Herik.
Larissa van den Herik is Professor of International Public Law at Leiden University. She studies legislation against genocide and crimes against humanity, contra-terrorism and international law, the implementation of international criminal law at national level, the UN Security Council and targeted sanctions, and the responsibility of corporations for international crimes.
Her prize-winning dissertation (2005, published by Martinus Nijhoff) discusses the influence of the Rwanda tribunal on the development of international criminal law. In 2007 she was awarded a VENI grant by NWO for research into illegal trade in the context of armed conflicts. Van den Herik is Editor-in-Chief of the Leiden Journal of International Law.
(29 June 2012)
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