ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 17

The important aspect in the exercise of jurisdiction by the ICC is that it is complementary to the national criminal justice systems. The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. The ICC does not replace the national courts. On the contrary, national courts enjoy priority over the ICC.

One can conclude that terrorism as an international crime has the following elements:
the act must constitute a criminal offence under most national legal systems, such
as murder, kidnapping, hostage-taking,bombing, torture, etc.; the act must be aimed at compelling a state, an international organization, or a nonstate entity to do or to abstain from doing any act, either by spreading terror or by means of violent action or threat; the act must be motivated by political, religious, or otherwise ideological reasons and not by private motives. Besides all the elements stated above it should have an international element, which means that the act should not be confined to the territory of one state,

Human rights differ from other rights in two respects. First, human rights are characterized by being: Inherent in all human beings by virtue of their being humans; Inalienable; Equally applicable to all. Second, the main duties deriving from human
rights fall on states and their authorities or agents, not on individuals. As a corollary of this, human rights must be protected by law (‘the rule of law’).

The natural law theory led to the natural rights theory, which is most closely associated with the modern concept of human rights. The chief exponent of this theory was John Locke. Natural rights theory emphasizes the moral worth of the individual.

Another approach to human rights is legal positivism. Under the positivist theory, the
source of human rights is to be found only in the enactments of law with sanctions attached to it.

Marx regarded the natural law approach to human rights as idealistic and ahistorical. He saw nothing natural or inalienable about human rights. Concepts such as law, justice, morality, democracy, and freedom are considered historical categories whose contents are determined by the material conditions of and the social circumstances
of people. As the conditions of life change, so the content of notions and ideas may change

The concept of human rights dates back to antiquity. One can find reference to rights in many national documents. The first reference of personal liberties is found in the Magna Carta of 1215 in England. Other notable references prior to the 19th century are the 1776 Virginia Declaration of Rights and the 1789 French Declaration of the Rights of Man and of the Citizen. The institutionalization of human rights in national documents penetrated into the international system at the end of the 18th century.

Scholars started classifying human rights under “three generations.” The first generation consists of civil and political rights. The second generation consists of economic, social and cultural rights. The emphasis in both has been on the individual’s rights. t. However, in the 1970s, a “third generation” rights emerged. In contrast to
the individual’s rights (i.e., the first two generations rights), these are collective or group rights such as the right to development, right to healthy human environment, right to peace, and right to self-determination.

The Human Rights Council is a subsidiary organ of the General Assembly. Unlike the CHR, which was a subsidiary body of the ECOSOC and reporting to the ECOSOC, the Human Rights Council reports to the General Assembly. “The Council is made of 47 Member States, which are elected by the members of the General Assembly of the United Nations through direct and secret ballot. Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The Council’s Membership is based on equitable geographical distribution.

The first example of an international organization is the Central Commission for Navigation on the Rhine (CCNR), which was created in 1815 by the Congress of Vienna.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), adopted by the Council of Europe on 4 November 1950, by far is the most established regional human rights treaty whose jurisprudence is well developed. The Convention has 14 protocols in force, adopted gradually after its coming into force on 3 September 1953. The Convention imposes binding commitments on the states parties to enforce and secure to “everyone within their jurisdiction,” the rights and freedoms enlisted in the Convention.

The Council of Europe is composed of four principal bodies: the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, and the Secretariat. The Committee of Ministers is composed of the foreign ministers of all Council members. The Parliamentary Assembly is a deliberative body composed of members of the national parliaments of each member state. The Congress of Local and
Regional Authorities of Europe is a consultative body that represents local and regional governments within the Council. The Secretariat serves the main organizations within the Council.

The heads of the Organization of African Unity  adopted the African Charter on Human Rights (also known as the Banjul Charter) on 17 June 1981. The Charter came into effect on 21 October 1986. As of 2016, all the 54 member states of the African Union have ratified the Charter. This is the first human rights document that has emphasized the peoples’ rights (Arts. 19- 24), i.e., the “third generation” rights, viz., right to self-determination, right to development, the right to freely dispose of their wealth and natural resources etc.

After Grotius, scholars of international law came to be classified under one of three schools: 1) Naturalists, such as Samuel von Pufendorf (1632- 1694), who based international law on natural law exclusively; 2) Positivists, such as Cornelius van Bynkershoek (1673-1743), who based it on the consent of States that was evidenced in State practice, and 3) Grotians (followers of Grotius), including Christian Wolff (1679-1754) and Emmerich de Vattel (1714-67), who relied on both natural law and the consent of States as well as reiterated that international law was binding on States.

Active Nationality Principle: Under this principle, a state has the jurisdiction to prosecute and punish its juristic persons for a crime committed outside its territory.

According to subjective territorial principle, a state has jurisdiction over a crime when it is commenced within the state but completed or consummated abroad.

There are two requirements for a custom to be accepted as law: (i) there should be sufficiently uniform general practice accepted as law, and (ii) the belief that such a practice is obligatory. Consequently, for a practice or usage to become a customary rule of international law, the following two factors are essential:

• A material fact: in similar circumstances States act similarly, in other words, usage has been constantly and uniformly practiced by States. 

• A psychological element: (opinio juris sive necessitatis) (an opinion of law or necessity) - the feeling on the part of States that in acting as they act they are fulfilling a legal obligation.

The two are often referred to as the objective (material) and subjective elements of custom respectively

Since the end of the Second World War, international responsibility of individuals in the criminal field has witnessed remarkable development. The Nuremberg and Tokyo trials, the establishment of the International Criminal Tribunals for Yugoslavia (1993) and Rwanda (1994), the Special Court for Sierra Leone (2002), and the establishment of International Criminal Court (2002) have established the responsibility of individuals for their criminal acts

There are three important elements regarding state responsibility: attribution (imputability), breach (causation), and the absence of any valid justification or legal excuse.

The Greenpeace ship Rainbow Warrior was sunk in Auckland harbor by French agents on July 10, 1985, which was an attributable conduct. The French Government subsequently admitted that explosives were planted on the ship by agents on the orders of the Directorate General of External Security. New Zealand sought and received an apology and compensation from France for the violation of its sovereignty