Chapter 1: Theory of International Criminal Law
11
organisations such as the International Committee of the Red Cross (ICRC), the Piracy
Reporting Centre, established by the International Chamber of Commerce, and the
International Cable Protection Committee, established by corporations active in that
industry, undertake a range of preventive measures to minimise the risk of offences
associated with their field of interest. This is welcome and unavoidable to a large
extent, as in the case of piracy, for example, most developing States do not have the
resources to patrol their coastlines, let alone the adjacent high seas. Moreover, these
organisations have, in the past, been the protagonist instigators for the evolution of
international norms in a certain field, such as the development of international
humanitarian law through the efforts of the ICRC.
The process of ICL enforcement, however, may also involve State entities, in the
sense that they may be responsible for the perpetration of an international offence, or
because they have transgressed their international obligations by failing to co-operate
with other States or international organisations in the suppression of particular criminal
activity. A State that breaches any of its international obligations commits an
internationally wrongful act and bears responsibility vis-à-vis injured States. Some
wrongful acts, however, especially those relating to gross violations of human rights
within one country and against that country’s nationals, do not produce harm to any
particular State. They do, nonetheless, breach obligations owed to the international
community as a whole and, as such, every country possesses a legal interest in their
termination and satisfaction of the victims. In both aforementioned cases (that is, direct
injury and obligations
erga omnes
) recourse is available to the ICJ or other interstate
judicial bodies, although no case has so far been entertained by the ICJ on account of a
non-injured party alleging breach of a
jus cogens
norm.
38
Increasingly, natural persons
have been granted legal standing before international judicial bodies with compulsory
jurisdiction, capable of rendering binding judgments, such as the European Court of
Human Rights. Judgments and non-binding rulings emanating from other quasi-
judicial bodies, such as the Human Rights Committee, have in recent years been
respected and complied with by a large number of States that have been found to
breach particular human rights provisions in the 1966 International Covenant on Civil
and Political Rights (ICCPR), although levels of compliance are far from perfect.
39
Moreover, Security Council resolutions are binding upon all States, thus rendering
any recalcitrant State subject to possible Council countermeasures on account of its
refusal to comply. The Security Council may even authorise the use of armed force in
accordance with Art 42 of the 1945 UN Charter, where it is convinced, and its members
are capable of deciding, that such action would best counter a particular breach or
threat to the peace, or an act of aggression.
40
This was amply exemplified in the case of
Iraqi aggression against Kuwait in 1990, where the Council authorised a coalition of
allied States to use force in order to restore not only Kuwaiti independence, but also
38
The European Court and Commission of Human Rights has had a chance to examine interstate
complaints alleging human rights violations taking place solely on the territory and against the
nationals of a single State. See
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