The individual as a subject of international law

• To what extent are we as individuals subjects of international law?

In this respect, it is necessary to make some very brief historical remarks, but before a definitional point. When we speak of individuals as subjects of international law, that is, individuals capable of having rights and duties under international law; the term "individual" here has a broader legal connotation, lawyers sometimes say surprising things. Individual in the legal sense means any subject of international law, i. e. the human being, but also a commercial enterprise with a legal personality, but also a foundation, not of course that all individuals have the same rights, but "individual" is taken in the broader sense. The individual, before 1945, had a very special status in international law, that status was that he was practically absent from international law, he could be the subject of regulation under international law, but he did not enjoy rights and duties as a direct individual under the international legal order. Purpose of international law? A whole series of treaties and customary rules concerned individuals, there were treaties protecting minorities, there was in customary law the "minimum standard" which was at the time a series of customary rules providing for the way in which States should treat foreigners; there were a number of rights for foreigners, if nationals of one country are in another State, the original State has the right to demand a minimum standard of treatment.

All these regulations may have benefited the individual, in that the unsold goods were an object of international law that was also concerned, but the individual could not claim directly based on the treaty or customary rule because he did not have direct rights or obligations under international law.

Previous regimes operated differently, they did not grant rights and duties directly applicable under international law and which the individual could claim on his or her behalf before international organizations. It was provided that States would incorporate these treaties into their domestic law, and it was within the framework of domestic law that individuals could benefit from the rules of these treaties.

The functioning of the regime was to set a certain standard in international law and to have it incorporated into domestic law; the violation of these regimes could only give rise to diplomatic protection.

If a Swiss national is in Russia accused of piracy and it is considered that this violates the minimum standard then Russia could be held accountable for diplomatic protection, but only state-to-state. International law provided regimes that benefited individuals, but rights always passed through domestic law, the individual could not assert rights and obligations directly under international law.

This changed after 1945, this kind of screen that consists in saying that international law is only interstate relations, and that the individual is subject to domestic law, this has changed since now we grant certain rights and impose certain obligations on individuals directly under international law, these are fundamental subjective rights that are summarized under the term human rights law and on the other hand the obligations that we impose on individuals under international criminal law concerning major crimes for which we can directly hold an individual accountable.

For a human rights treaty to be applied to a State, it must be ratified, as far as human rights based on customary law are concerned, there is no obstacle to ratification.

• Why was this new approach adopted?

The reason for this change is quite simply the experience of the interwar period, which shows that domestic law can be seriously deficient, even cultural States can fall into relative barbarism, domestic law can dysfunction or be used for obscure purposes. It was suggested that international law does not provide sufficient guarantees because it can fluctuate, while international protection that binds States and that they cannot unilaterally modify allows the individual to have a minimum number of guarantees. This was an optimistic approach, but the idea is to maintain a certain standard when with domestic law we are not sure, by the fact that States are bound by common standards it is an increased protection that domestic law does not provide.

International human rights law

In the field of human rights law, we will limit ourselves to giving an overview of the institutional elements, who does what, what are the competences of the different bodies and the fundamental rights to be protected.

In French, the traditional term is Human Rights or more precisely Human Rights Law which are subjective rights, we discuss the branch and therefore the objective law of human rights.

What requires explanation is rather the use of the term "man". Some swear by the human term only. Professor Kolb refuses to talk about human rights because you don't reduce an individual to an adjective.

The starting point is the United Nations Charter, it is the very first time that in a text of positive law, in soft law, there was already the 1942 Atlantic Charter, but in a text of binding positive law we see for the first time mentioned the notion of Human Rights.

All these references in the preamble, in Article 1, Article 13, Article 55, all these provisions contain only a generic reference to human rights and use carefully balanced and restricted terms, for example the role of the General Assembly is to be able to exercise human rights, it is not said that the Assembly has a power to control the way States behave in the field of human rights, it is a normative function, to provide texts.

On the basis of these provisions of the Charter and in particular Article 13, the Assembly decided exactly as it did for international law that it could not deal with this subject itself and created a subsidiary body, the Commission on Human Rights in 1946.

This subsidiary body should have been a subsidiary body of the Assembly, but since a whole series of Member States were cautious about human rights, it was preferred that the subsidiary body be moved to ECOSOC, which has competence in human rights matters in Article 55.

This Human Rights Commission was an organ of 53 government delegates with some other elements such as non-governmental organizations.

What was the Commission on Human Rights doing until 2006?

The Human Rights Council succeeded this commission in 2006. The successor body still applies its three functions:

1. function of development of human rights law, "standards setting", development of standards, it is a normative function.
2. function of monitoring the implementation of human rights, subsequent practice has long prevailed.
3. reporting system on special topics: these may include vulnerable groups, particular problems, human rights in armed conflicts or extra-judicial constitutions, with particular themes chosen according to current events and emergencies.

The first task is the normative function of the Commission, it was literally in its original task. Article VII of the Charter provides that the mission of the organization is to promote human rights, the intention of the drafters of the Charter was to say that the United Nations should be concerned with preparing human rights texts so that States can ratify them, incorporate them into their domestic law and thus make them applicable.

For many years, the Commission has done this and only that, a whole series of important conventional texts have passed through its hands, particularly concerning the 1966 pacts.

This Commission has also contributed to a whole series of soft law texts, some of which are famous such as the Declaration on Protection against Enforced Disappearances, it is a text of the Commission on Human Rights which has paved the way in this field and it is following this text that there have been conventions in this field.

The second is the function of monitoring the implementation of human rights, which is a function that was not covered by the Charter, it was in the 1970s that the Commission was able to assume this power against resistance.

It was through Resolution 1503 of 1970 that the Commission on Human Rights established a procedure for monitoring implementation in the case of massive and systematic violations of human rights in a given country; there is a possibility of complaining either by individuals through petitions or by another State complaining of massive and systematic violations of human rights in a given State.

The terminology or the limit of jurisdiction due to the fact that the Commission had to warn itself against the accusation of engaging in a procedure without having any authority, the Charter only provides for the promotion of human rights, we are in the open.

As there was resistance to this, the Commission felt that this control should be limited so as not to give the impression that it was dealing with individual cases, which would be too inclusive, but the promotion is interpreted as saying that situations where there are extremely massive violations cannot be ignored and something must be done in this case.

The Commission initiated a constructive dialogue with the State accused of committing these massive and systematic violations in a confidential procedure. This is why it is still difficult to judge the 1503 procedure and its effectiveness today.

It is quite difficult to be able to make a serious study because everything happened confidentially and everything happened through leaks.

Why a constructive dialogue?

The United Nations has no power to intervene in internal affairs and to impose a determined approach to human rights. If they cannot take decisions on this matter and have not even obtained through subsequent practice, if they have not, the only thing the United Nations and the Commission on Human Rights can do is to obtain pragmatic improvements.

To do so, it is necessary to enter into a dialogue with the actors concerned and to engage in a favourable climate. The worst thing to do is to stigmatize, and you can't get something. To get something, you have to engage people.

The press and advertising must be excluded, if the press is present, the actors immediately take action and do things for the gallery; we do not solve the fundamental problems, the problems of internal politics cannot be ceded, we must show that we defend this or that cause, acting in confidence allows us to "relax". So we have a certain chance to be able to speak openly.

These are the two essential rules that the Commission followed; the 1503 procedure is a very contrasting assessment.

Some have called it "the world's largest garbage can" and others say it is a procedure that has made some improvements.

Confidentiality is the result of constructive dialogue, the committee was able to do some useful work. The ideology of the United Nations and in the universal protection of human rights remains in constructive dialogue because there is no power of constraint, there is no Court of Human Rights at the universal level, in the absence of being able to coerce, the only thing left is constructive dialogue.

The press tends to have a sanctioning, even very dirigiste attitude. It is considered that the United Nations should impose limits on States, or even punish those who violate Human Rights, but this is simply impossible as the texts stand, the United Nations does not have the competence to do so.

The third function is the system of reports that have been found to promote human rights by reporting problems here and there, not because of systematic violations, but also because of particular situations. It has been realized that armed conflicts pose particular problems in terms of human rights, etc.

Since the 1970s, therefore, the system of reports with special rapporteurs has been invented; the Commission appointed a special rapporteur on a particular subject who will study concrete problems and present his report leading to a discussion. Through the crystallization of the problem and collective discussion, potential improvements are promised.

The spirit behind this is that we think that States do not always violate human rights because they have bad will, but it is also because some problems are not sufficiently known, by appointing a specialist who will examine the problem and devise solutions collectively through consultation with governments, something favourable can emerge, especially because the problems become conscious.

Perhaps this or that government facing similar problems has imagined something interesting in a confidential way, but that can now be highlighted.

The Human Rights Commission was dissolved in 2006 and the Human Rights Council took its place. This should not be confused with human rights committees.

Why was the Human Rights Commission dissolved?

There are two main reasons.

It was said that the former Commission on Human Rights was too politicized, it was especially something that was criticized in the West and that it was better to have an organ where expertise would prevail a little more over the sometimes extremely heated political debates. The criticism was that the Commission had discredited itself. This discredit gave rise to epic debates of a political nature, but it also comes from other factors. For example, it was felt that since the Third World dominated the Commission and the United Nations in numerical terms, some States were "going to the dogs" more than others. For example, Israel very often appeared before the Commission and was criticized for its actions in the occupied territories.

A whole series of States were more concerned with being condemned by their practice than with promoting human rights; it is being present to avoid condemnations, it is political games. This was not very compatible with the very idea of promoting and defending human rights in the UN system.

As is often the case when the Western bloc wants something it gets it, the Commission has been dissolved and the Council created in its place to address these problems.

For Professor Kolb, the criticism is due to the system itself, because it is simply always called politicized what others do; the problem is that politicization is always from the other side and since there are still more Third World States in the current Council, we find the same debates and divisions as in the old committee.

What we want to do at the United Nations and to engage governments, experts do not engage people, we must talk with actors, we must talk with government delegates who reason politically since they represent governments. It is sometimes a little funny to accuse them of being in politics because that is what they are there for.

We have not really been able to achieve fundamental progress on these points for the reasons hardly mentioned.

This does not mean that the Human Rights Council does not bring innovations; the functions have remained more or less the same, but it differs on four particular points.

Institutionally the Council is higher than the Commission

It is a subsidiary body of the General Assembly. The Secretary-General wanted to make it a principal organ, but this could not be achieved because the Charter should have been revised and the revision of the Charter is complicated.

As it was not possible to revise the Charter, it was done as best as possible by making it a subsidiary body, the Assembly adopted a resolution and the body was created. It is symbolic, but it is an enhancement that indicates that we attach greater importance to Human Rights today.

Membership - The States represented on the Council

We have gone from 53 States to 47 States, which is an effort, but not a huge one, representing more than 25% of the Member States of the United Nations.

These States are elected for three years once renewable, after which time you must be outside the Council for at least three years to return to it, whereas in the Commission you could be elected period after period.

In the Council, we have a little more movement. In addition, the relevant resolution 60251 of 2006 states that the States elected to the Council must observe the highest human rights standards.

According to the same text, the General Assembly was granted the possibility of suspending a member of the Human Rights Council in the event of a flagrant and systematic violation of human rights by a 2/3 vote of the General Assembly subject to Article 18.3 of the Charter, which itself provides for this. We do not get much out of this kind of arrangement, according to Professor Kolb, no one has a white jacket, neither the states nor human beings, it is a hypocritical situation because we have not changed the Member States; by what right are we necessarily better, etc.

For flagrant and systematic violations, the Assembly has not yet excluded anyone, it is understandable that the 2/3 majority to exclude a State is not clear when it could be applied. We are all used to always considering the other.

The intensification of the frequency and length of sessions

It was felt that the old session was a hooky one, a few sessions per year and not enough attendance. The new Council's rules set out that there would be a minimum of three sessions per year, which must correspond to a minimum of 10 weeks, and it is possible for each member to propose extraordinary sessions and for this purpose 1/3 of Council members must follow this proposal.

There were even bolder proposals on the length of the sessions. It is necessary to challenge the faith between the length of the sessions and the quality of the results. Professor Kolb notes that when meetings are long, the results are poor. With a good state of mind, we can move quickly on the fundamental points. It is true that taking the time necessary to take the time to discuss the reports can be good.

The Universal Periodic Review is sometimes referred to as a peer review in English

This means that the Council must assess the state of human rights in all UN Member States, but the essence of the universal periodic review is that it is an examination in which everyone "goes through the pot". There are some little political games, but everyone has to present their situation periodically. This is progress in the sense that there is no impression of arbitrary choice; these are constructive dialogues, States present reports that are discussed.

The main human rights texts adapted after the United Nations Charter have the advantage of being much more detailed and precise both when it comes to lex speciali and lex posteriori.

The first text is the 1948 Universal Declaration of Human Rights, Resolution 217; this declaration was adopted in 1948 because it was considered as a preamble to the Human Rights Pact that should follow, given the gravity of the violation of human rights, particularly by the Axis powers, that something solemn should be done, such as the 1789 Declaration of the Rights of Man and of the Citizen in France, this solemn declaration should be followed by a legally binding text.

The solemn declaration has a symbolic and political virtue and behind it is a convention on human rights. It was quickly possible to agree on a universal declaration of political and solemn inspiration and to proclaim it in the General Assembly. The problem is that the treaty and the pact did not follow, it takes 30 years to have a universal generalist treaty on human rights, there were two pacts in 1966 which were due to the split of the antagonistic camps. Westerners still believe that act number one is the Civil and Political Covenant, while act number two and act number one is the Covenant on Economic and Cultural Social Rights.

The Universal Declaration was considered as soft law at the beginning, but today the doctrine considers it as the customary reflection of human rights, in many domestic courts the courts resort to the Universal Declaration of Human Rights.

The last remark is that there is no control system, it was a solemn declaration that was not intended to remain isolated, it was intended to be attached to it a legally binding text with control mechanisms.

The Covenants remain the two most important universal human rights treaties because they are the only universal human rights treaties that are comprehensive covering all categories of existing and recognized human rights. All the other conventions dealt with specific sectors such as the Convention against Torture or physical integrity and torture, whereas in the 1966 covenants there is the full spectrum.

The Covenants are generally and always referred to when referring to Human Rights, but according to the matters dealt with in the specialized conventions.

The Pacts were initially made in a different way than the implementation and control procedures.

The two covenants were initially organised in a slightly different way: there was a Human Rights Committee with certain functions such as the Covenant on Civil and Political Rights, since 1985 there has been a Human Rights Committee on Social, Economic and Cultural Rights and it is only since 2009 that this Committee can receive individual communications such as the Committee on Civil and Political Rights.

The first Committee to have functioned and the one of Pact Number II, why this difference with a more robust committee and a more diaphanous committee?

Reason was a reason for justiciability, in the 1966 vision social, economic and cultural rights were rather rights to be included in the political process or rights that the State should recognize through its legitimization by taking into account its legal aspects; it was considered that the right to housing was not justiciable, unlike the right against torture.

In civil and political law, there is a Human Rights Committee, the Human Rights Committee is a treaty body, it is an organ of the United Nations, but indirectly, it is an organ of Pact Number II, it is a body with competence vis-à-vis States parties to the civil and political pact.

This Committee has three fundamental functions:

works with periodic reports

The reports are examined by the Committee: the government delegates of the State concerned present the report, which is then examined by a rapporteur, one of the 18 experts as chair of a working group, examines the report and draws up a list of questions that are questions of clarification, sometimes updates, clarifications, further developments, etc., are requested.

The questions are given to the State, which has a certain time limit to reply; the reply is made by the State in writing, on the basis of these replies, which complete the report, a dialogue is established between the Committee and the government delegates. It is a "free-for-all" discussion where we exchange ideas in all directions.

At the conclusion of this process, the Committee, through its rapporteur, prepares a document in which it expresses its congratulations if necessary for the progress made, concerns also for the things that are still open to criticism and recommendations on how, in the Committee's view, the problems identified could be solved.

The State has the possibility to study the recommendations and make its positions known, the State provides a duty to take a position, which the State takes a position, the State is not obliged to follow the recommendation, there is no power of coercion.

When Switzerland went before the Human Rights Council and recommendations were made, Switzerland accepted, with a few exceptions such as minarets.

The reports are useful, it is not just bureaucracy because it is a procedure for crystallizing the problem, sometimes there are problems in one canton or another without Bern knowing the details.

Where there is no ill will, we can do things, there is a possibility of actions that we did not have before, we must first be aware of a problem in order to attack it, when we have no conscience or deny power we cannot move forward.

The exchanges are also fruitful because "four eyes are better than two", it is not a question of stigmatising, but of having a constructive dialogue, it is not a question of constraining, but of stimulating. There is added value.

the Committees draw up what are called general observations, in English they are general comments

This is an interpretative function of the Committee, which is a treaty body. It is the most specialized body asked to comment on each article of the Covenant in order to explain what these terms mean by giving practice.

There are indeed very important general comments not only on concrete provisions, the Committee is even considering cross-cutting issues. A well-known general comment concerned reservations to the covenants on civil and political rights, what reservations are admissible, what provisions States may make reservations to - the essential criterion is that reservations cannot be made if they are contrary to the object and purpose of the covenant - what are the important rights on which no reservations can be made and to what extent can reservations be made? All these questions are addressed in General Comment 24, where the Committee expresses itself in 1995.

Function to take a position on individual communications

This is an optional competence in the pact system, so this fiction of the Committee is not automatic, whereas the two previous ones are automatic, it is an optional competence.

It is implementation monitoring that resembles 1503, it is not demonstrated that there is a set of massive and systematic violations, each individual of a State party to the Civil and Political Rights Covenant and also a party to the Optional Protocol can make an individual communication or a complaint.

The Committee receives an individual communication, which is a complaint based on an alleged violation of the right enshrined in the Covenant. The Committee examines the situation and drafts its conclusions, often this is not very motivated unlike the courts, the Committee except in a few cases and runs on legal arguments and concludes quickly.

This position of the Committee is not a decision and even less a legal decision, no body at the universal level has binding competence in the field of human rights, even in individual communications there is only a recommendation in the technical sense of the term with an obligation under the Covenant of States to inform following the views of the recommendations made by the Committee.

Until now it is not uncommon for States to comply, very often as at the European Court of Human Rights, the Committee has renounced that there is a violation, for States all this is much less serious than to continue to be on the agenda and to justify themselves before the Committee, so that they most often comply.

For a while there was only one reporting system where States were informed about the efforts to be made, these reports were initially not monitored by a Committee, but through the Secretary General it went back to ECOSOC.

ECOSOC does not itself exercise its supervisory function under Article 16 of Pact No. I. In 1985, a committee was created under this pact so that there would be specialization, they did not want to impose on it and impose control of pact number I.

It is only recently that this point of view has been changed and it has been considered that there are individual communications.

Individual communications that lead to recommendations can lead to something useful. When a committee is established and a competence is given, it takes about ten years to judge its effectiveness.

The two 1966 Covenants are not the only instruments in the field of universal human rights, there are a whole series of others; there is the Convention against Racial Discrimination, which dates back to the time when Third World States became independent, this Convention was adopted in 1965 and the two 1966 Covenants follow.

Very early on, there is a convention against discrimination against women, it is a progressive convention, but a whole series of rather bad reservations have been made, who wants to oppose this convention in the international system? Harmful exceptions have been introduced.

The 1984 Convention against Torture is a convention that also has a committee, but the Convention against Torture has the particularity that its committee does not examine reports and does not receive individual communications, it makes in loco visits to places where there are people particularly vulnerable to torture.

There is the 1989 Convention on the Rights of the Child, which is important because of its content and the publicity it has received. There is also the Convention on the Rights of Migrants in 2003, on particular persons in 2006 and enforced disappearances in 2008. These conventions have committees.

That's a lot of committees, 9 committees in operation. This is quite cumbersome to manage.

The system also faces challenges that have not been adequately addressed, there are delays in the submission of reports, sometimes in many States the structures are such that there are no adequate staff. There are reports so bad that we understand almost nothing and we don't know how to answer them. The first problem is the quality of the reports.

There is the problem of the multiplication of procedures, it is difficult for States to be before so many committees, each time it is necessary to use additional resources, it is heavy. We had imagined merging this committee and making it one.

On the one hand, a whole series of lobbies wanted to drop their conventions, in the field of Human Rights it is a very competitive environment, there are many oversized egos.

It was also the fear that this would be a first step towards establishing a World Tribunal for Human Rights; Russia and China were strongly opposed to the merger of the committees.

The reports are useful, but we are reaching saturation somewhere.

There are other texts outside the United Nations, there are other universal or regional organizations that also produce texts on human rights.

Mention should be made of the International Labour Organisation for the Universal System for the Protection of Workers, which has drawn up a whole series of conventions since 1919; there are now more than 200 numbered conventions, covering a wide range of subjects such as child labour, women's night work, the abolition of forced labour, trade union and employer freedom, conventions against discrimination in employment, etc. There is also a highly developed control system at the ILO based on a system of individual reports.

The supervisory body is not just experts, but a council composed of representatives of professional associations, there are a number of experts and a number of union and employer delegates on an equal footing. So it's a partition of civil society.

There are regional systems, the most well-known, the most copied and the oldest is that of the 1955 European Convention on Human Rights, with the particular feature that there is a Court of Justice which decides in a binding manner, generally condemning the State for violations to pay sums of money.

There is the Inter-American Convention on Human Rights, it is the 1969 San Jose Convention that remains in a binary model, there is an Inter-American Convention on Human Rights and an Inter-American Court of Human Rights; the Inter-American Commission on Human Rights has a diplomatic function.

Finally, there is the African Charter on Human Rights of 1981, which has been enriched since 1998 by an African Court on Human and Peoples' Rights; this Court was planned later, the African continent was at one time different from jurisdictional measures, it had a more collectivist approach. In the 1990s, Africans changed their view that a Court was needed to judge.

Asia does not have a comparable system, it is a continent too heterogeneous with too weak solidarity to have a single system.

What types of rights are protected, what is expected of human rights and human rights from a material point of view?

If we get to the point, we will determine relatively quickly that there are six types of human rights projected by various instruments of international law, sometimes as covenants, sometimes as general law:

1. Physical freedoms: right to life, physical integrity and degrading treatment. More generally, these are freedoms relating to the security of the person - habeas corpus - freedom of movement, which refers to cases of arrest and incarceration. The right to life is not protected either absolutely or generally. The reasoning that the right to life is a fundamental right does not mean that life is a right defended in general, for example the death penalty is provided for in the 1989 Civil and Political Rights Pact, and Protocol 6 of 1985 to the European Convention on Human Rights.
2. Moral freedoms: these are freedoms relating to opinion, belief, religion and expression.
3. Associative freedoms: a more or less extensive, more or less close association, first of all in the technical sense of the term with the freedom to associate as in trade unions and indeed a right recognized in the Covenant on Economic, Social and Cultural Rights, yet it is a quite classic right that Western countries have long recognized. It is also everything related to family law and the right to marry, but also the private life of the person.
4. Procedural guarantees: it is a small universe generally summarized in a single provision, so the question revolves around fair trial and procedural guarantees, in English we speak of fair trial. There are also a whole series of guarantees that apply equally to civil and criminal matters; it is the right to an independent and impartial tribunal, the independence that relates to the tribunal, impartiality affects the quality of judges, which relates to the fact that judges have no particular connection with what they judge. In the case law there have been cases where judges have judged facelessly as in Peru in the 1990s under article 14 of the Covenant on Civil and Political Rights; the court must be established by law, the trial must be public, for the criminal case the accused must be informed of the charges brought against him and have the necessary time to defend himself he also has the right to call a lawyer, but also to call on an interpreter, contact his consulate, call witnesses on his behalf and examine witnesses against him. There is an extremely rich jurisprudence on fair trial.
5. Political rights: the right to participate in politics; for universal pacts, these political rights are extremely timid and timid, as found in Article 25 of the Covenant on Civil and Political Rights. The only guarantee that is still quite weak is that the right of political participation is granted without discrimination, which is somewhat stated in the pact with discrimination on the grounds of race, colour, opinion, etc., and without unreasonable restrictions, which makes it possible to interpret according to one's own ideas.
6. Economic and social rights: these are the emblematic rights of the 1966 Pact I, they are found in other instruments, they are the rights to social security, the right to housing or the right to work; these social and economic rights were supported in the 1960s especially by the socialist bloc, which is why there were two pacts.

In human rights law, obligations are not included, lawyers and churchmen regret that duties have been forgotten, but it actually comes from the origin of Human Rights, which limit massive intervention in the spheres of individual freedoms in order to ensure certain individual freedoms considered essential because the State is distrusted as much on the left as on the right, there is mistrust of the State, there are guarantees of freedom and counter-powers that are at that moment rights.

We thus use the term positive obligations that are not mentioned in the texts, it is a jurisprudential development, in other words, it is the courts or committees that have gradually developed these positive obligations grafted onto the provisions contained in the texts.

The positive obligation is always based on the idea that in order to give practical effect to the human rights mentioned in the texts, it is necessary that the State refrain from interfering in the freedom of the individual, but also that the State act to protect the freedom of the individual.

The positive obligation reinstated a certain amount of the State's duty to act with a view to making the right practical and effective because otherwise it risked being laterally violated so that the individual would not benefit sufficiently from it, in other words the right would not be sufficiently effective. What is necessary to give practical effectiveness to the law is considered to be inherent to the law.

If an individual disappears suspiciously and is found in a precarious physical or psychological condition or his body, there is a kind of gap, the state could engage in acts of torture because he would benefit from the doubt and he would not have the burden of proof; the courts have developed that if there is a suspicious death there must be an investigation, examine the "strange" signs on the body.

It is a positive obligation to investigate the right against torture and the right to life in order to give more effect to the prohibition or guaranteed right that might otherwise be too easily given; the burden of proof returns to the state and then we see at best.

In the case of bombing in Chechnya, the Court reasoned under the text it could apply, namely the European Convention on Human Rights, it was Article 2 that concerned it which was the right to life; the obligation was in the preparation of the attack, if the attack or police forces did not have sufficient preparation, then it was considered that the State had failed to prepare its intervention and therefore the right to life had been violated.

He will have been violated not by taking his life, there is an obligation by the fact that he will have been violated by properly preparing the attack.

The horizontal effect is an idea that had been defended by some authors that if human rights and fundamental rights in a state constitution are really so important as to be said - fundamental because they directly relate to human dignity - then these authors conclude that it would be strange if only the state through its organs should guarantee human rights and that private persons in society should not be held accountable.

Private persons must also, where appropriate, guarantee respect for fundamental rights vis-à-vis other private persons; not only is the State obliged to do so, but in view of the importance of this, private entities must guarantee it.

Today, we find this trend with corporate responsibility, in other areas it is very difficult to apply this idea.

There is a question of generation, we are talking about the first, second and third generation of human rights:

• first generation - classical, civil and political rights -: the State must refrain from intervening in the spheres of freedom of the individual, these are the classical Western rights, i.e. the freedom of the individual against the State
• Second generation - economic, social and cultural rights -: they are rooted in the social revolution of the late 19th century and early 20th century, the State has an obligation towards the weakest in society to provide for readjustment mechanisms.

There is a tension between the first and second generation, if the state takes the second generation too seriously it can kill the first generation, it must always keep a certain balance.

• third generation - collective rights that are generally not justiciable such as the right to peace -: it is a programmatic right that has some rather weak legal effects, there may be criminal provisions that prohibit the rhetoric of war or certain forms of hatred towards foreigners; such criminal legitimations are based on the idea that it is necessary to promote understanding between peoples or on the idea that there is a general right to peace.

There is a legal and political aspect to human rights more than anywhere else, but the two are less separate here than in other branches of international law, because the question of human rights raises passionate questions on both sides, both set the limits, there is somewhere activism that creates a tendency through activism to go beyond the limit of the law and move towards what they consider progressive.

This gives rise to problems where, for example, the Court of Human Rights is criticised, the Court is accused of activism and even more so of individual members, there is this particular difficulty that human rights protesters pejoratively call the right to human rights, which is the only existing truth.

This is a matter where there are particularly high tensions, even in humanitarian law there are not the same dividing lines.

We must make a few more remarks that are interesting, even important, points on which we often make mistakes.

An individual can never bring a case before the Court because it is only open to States under article 34 of its Statute, this does not mean that an individual cannot bring a case before the Court, but it is his State that will have to do so under his national.

On the contrary, an individual may bring an action before the European Court of Human Rights, which makes binding judgments. The Court has so far refrained, but not always, from asking the State to take specific measures condemning States to financial benefits.

It is often a mistake to think that the rights granted, such as moral or opinion freedom, for example, are somehow fully guaranteed in all cases and that they cannot be limited, and this is a mistake.

There are exceptions that apply to all rights except for torture, in the European Convention on Human Rights we read the rights guaranteed, but it is possible to limit the right for an overriding interest, when we limit this right proportionally and do not undermine its fundamental core.

It is obvious that not all these rights can be guaranteed as a whole and because they clash with each other, it is possible that the right of one against another may have to be limited, for example the right to property or the State may sometimes expropriate; where there is an overriding public interest and in a proportional manner it is necessary to expropriate as in the previous case, in some countries war propaganda is not tolerated.

There is the possibility of limiting rights if there is an overriding public interest, but this kind of thing is controlled to see if it is necessary.

In addition to this, there is the possibility of suspending certain fundamental rights and limiting them in times of state crisis, which are emergency situations in the context of conflict or insurrection on state territory; this is called derogation.

Human rights are eminently contextual, they are relative contextual rights, there are oppositions between human rights and legislation, it is an extremely complex game and it is necessary to see the whole to properly judge this branch of law.

It is often argued that classical human rights are of Western origin and that there can be no universal human rights, because it is always a vision of how people are in society, how they interact, there are socio-cultural realities, it is concluded that true universal rights do not really exist and that their concrete and given meaning in diverse states and cultures.

On the one hand, the argument is true in the sense that the arrogance of Western states must be avoided, Westerners are universalities, it is quite obvious that there are diverse thoughts on the roles of people in society; this is why in the organs of the United Nations the countries of the West are in a minority. Either it is a consensus and everyone agrees, if there is a vote strictly speaking, we are almost always in a minority, the third world countries have other priorities than human rights such as development rights.

The other part of the answer is that we would not have gone too close, when it comes to protecting fundamental rights, there are fundamental proposals; in classical civil rights, there has been a convergence towards positions that we consider difficult not to be universal.

We must avoid the pitfall that some people have the impression of saying that if we grant more rights, if we multiply the rights we go towards more progress, more well-being, that Human Rights will work better.

We must remember a basic legal truth, we can have an obligation on the State to do something without the State being obliged to do something, but we cannot have a subjective right without an obligation, because if no one were obliged, it would be in weightlessness; if we add existing rights, the question is who holds additional rights and obligations.

The density of torture is a difficult matter, we will stick to the 1984 Convention against Torture, which defines torture.

Convention Internationale contre la torture et autres peines ou traitements cruels, inhumains ou dégradants de 1984 - article 1

• What are the elements of torture in relation to torture? How does torture come out?

First of all, there is an intentional act or omission, so there is no torture by mistake according to the dominant way of constructing torture.

In an Austrian case where someone was locked in a cell and forgotten for 15 days in a cell, there was no intent and therefore no torture as defined.

The material object of torture is the infliction of physical or mental pain inflicted on a human individual, either acute pain or suffering.

It must be assessed, it must be assessed according to the circumstances, which means that since torture is based on a judgment and an assessment of what is acute, there is no clear delimitation of what constitutes torture and what constitutes inhuman and degrading treatment.

Acute suffering can be physical or mental, such as forcing people to witness the torture or murder of all family members.

Torture must be carried out for a purpose that is described in some detail as obtaining information or confession or punishment or humiliation or coercion.

Torture without purpose does not correspond to torture in the field of human rights, it would rather be an act of offence that falls within the scope of the Criminal Code.

Finally, in the field of human rights, at least one of the persons who commits the offence must be a public official or at least must act with the acquiescence of public officials, in other words there is no torture in the presence of private persons.

This delimitation comes from the fact that human rights law and related to public necessity, it would be wrong to conclude if a public official is not present then the act is lawful, but in reality it falls under the account of the Criminal Code which protects physical integrity.

Torture against crimes against humanity as a war crime or genocide does not imply that it is inflicted by a public official in criminal law; the key case is the 2001 Kunarac case of the Trial Chamber.

Since torture only takes the first step, those who grant acute suffering or pain, this means that there are lower categories because we want to protect against invasions that appear in the European Convention on Human Rights in Article 3, which prohibits inhuman acts and degrading treatment.

Degrading treatment is treatment that is likely to create in victims a feeling of fear, anxiety and inferiority that humiliates or degrades them.

All this is judged by the context.

Between the two, there is inhuman treatment which is the least well defined, it is treatment which causes sufficiently severe suffering from the point of view of the individual who suffers it, so that there is a prohibition.

The 1996 case of Ortiz v. Guatemala at the level of the Inter-American Commission on Human Rights, she is a sister and therefore a nun who was suspected of having links with subversives, she was taken by paramilitary groups and subjected to choice treatments, starting with burning her with cigarettes, then rape her, beating her with various objects, but also with her fists and finally she was introduced into a fairly deep well infested with bodies and rats.

A classic torture treatment and that of the submarine, these people collected containers filled with extremely, urine, vomit and semen; people were plunged so that they compulsively opened their mouths.

The classic example is the case of Ireland v. the United Kingdom in January 1978, when the relationship between the United Kingdom and Northern Ireland was tense; the British present apply interrogation techniques to IRA terrorism.

These techniques were first of all people arrested at this stage suspected of having relations with the IRA of standing for hours against a wall in an uncomfortable position, then these people were hooded to lose their sense of the environment, then the people were deprived of sleep that stretches the nervous system and then these people were subjected for hours of the day to a sharp and continuous hissing, finally deprivation of food and drink.

The European Court of Human Rights considered that this was inhuman treatment, but not torture.

In degrading treatment, there were various examples such as the most classic, which are corporal punishment, there are classic cases such as the 1978 Tyers case, series A number 26; these are school children where there were corporal punishment by blows from the rod.

The Court found that in 1976 this was degrading treatment and that this practice was contrary to custom.

In the 1997 Raminen case, he was a conscientious objector who did not want to do the military service that was picked up early in the morning, handcuffed and taken away; the Court held that for a non-violent individual, this staging could have been much more civilian.

The three thresholds, torture, inhuman treatment and degrading treatment cannot be defined with certainty because they are gradual and therefore case law or even criminal courts emphasise the contextual nature, i.e. these thresholds cannot be defined in absolute terms because they depend on factors that vary from case to case.

The European Court of Human Rights says that this depends on the nature and context of the processing, the modality of execution, the duration of execution, the physical or mental effects or the sex and age of the victim.

Criminal case law suggests that cultural or religious factors must sometimes be taken into account, in some societies rape is terrible because it is a total disgrace, as in the 2005 Limaj case, Trial Chamber at paragraph 237.

These criminal offences and human rights qualifications have a certain porosity because they depend on the context.

International criminal law

The aspect of the criminal responsibility of the individual, in the 19th century international criminal law, can be summed up in a few things according to the dominant dogma at the time according to which the individual was not a subject of international law.

At the international level there was the definition of crimes, but the punishment of crimes was not a matter of international law and there were no international courts. At most, a crime was defined and repression was left to a domestic court in order to prosecute internationally defined crimes introduced into the internal code of States and criminal legislation.

In the 20th century, we were concerned about having a more developed regime, we continued to define crimes, the evolution is that we joined the tradition: international law was no longer limited to defining certain crimes, but also dealt with repression.

In the 19th century, internationally defined crimes were mainly private crimes such as piracy and the slave trade. The crimes of the 20th century were often intensely political crimes, i.e. the State through its organs perpetuate them like war crimes, genocide and crimes against humanity.

Repression might seem insufficient for the sole reason that when the State itself commits these crimes, it cannot be expected that the same State will punish its own leaders, and therefore, it has been necessary to add to the failing national bodies of international courts.

It is the creation of international courts dealing with the repression of crimes where the novelty lies.

From the individual's point of view, this has an immediate impact because it was not subject to international criminal law simply because 19th century criminal law was a purely interstate matter, States agree on the definition of a crime either on customary law or on a treaty: the individual remains a subject of domestic law.

When international courts deal with the punishment of certain crimes, the individual is directly subject to the criminal jurisdiction of an international court, he is no longer a criminal subject of domestic law, but also of international law, although only in exceptional cases in terms of quantity and quality.

Quantitatively, few people have been tried before an international tribunal since 1945, qualitatively it is also limited since the crimes passed before an international tribunal are selective.

1945 is the defeat of the Axis forces including Japan, it is not unprecedented in history to have tried to prosecute international crimes, but it did not succeed like the Leipzig trials. After 1945 political conditions were more favourable, the London Agreement establishing an international tribunal opened the way for international trials.

There were four series of trials in the post-war period between 1946 and 1949:

• For those before the International Military Tribunal, which is established by a treaty following the 1945 London Agreement establishing the Statute of the International Military Tribunal, there is the definition of crimes for which the Tribunal has jurisdiction in Article 6.
• The Tokyo Court or Far East Criminal Court is a court that was established to try mainly Japanese war criminals but also to try those who organized the Japanese attacks in China, for example. The Far East Criminal Court was not legally an international court even if it was physically an international court; it was not established by an agreement or equivalent international legal act. The Tokyo Court was established by a decree of General MacArthur who was the Supreme Commander of the Far East Forces, it had the power under either military occupation law to establish a court: it is a formally American court, but the United States did not want it to be a purely American court, was associated with the other allies, and a series of states that were victims of Japanese aggression, the President was Australian. It is a tribunal that has a very different status from the International Military Tribunal in Nuremberg.

Robert Jackson addressing the court

• tthere have been criminal courts in the areas of occupation in Germany, particularly in the American zone to the south and the British zone of occupation to the north; the seats of the American criminal courts were in Nuremberg, so that people confuse the International Military Tribunal and the American court. The British courts had their headquarters in Hamburg, they are courts based on occupation law. These courts have been established and have heard very important trials as the American Nuremberg Tribunal has judged people at least as important as those before the Grand Tribunal. There were the trials of doctors who were carrying out appalling experiments, the trial of the Wehrmacht high command, the Schutzstaffel were carrying out effective ethnic cleansing in the East, sometimes 30 to 40 thousand people executed in one day, or the Reich lawyers or the political trial. It is a whole series of trials of the highest importance published in the V and P manuals. The British had trials with less brilliance and the French had not established courts for the Soviets, they did not judge the courts, they executed directly. In the West there were also voices for a more expeditious justice as was the case with the British, it was because of the American prosecutor Jackson and the links he had with President Roosevelt who intervened for the intervention of a court, it is to the Americans that we owe the legalistic approach with Nuremberg.
• national trials: there have been trials against Nazi collaborators and criminals in a number of countries; the Netherlands has suffered from a horrible occupation and a whole series of Nazi criminals have been tried in the Netherlands, which has established a special jurisdiction with a special Court of Cassation.

These four circles must be taken together to obtain the result of the criminal law after the Second World War, i.e. the criminal repression that was organised in these layers.

The judges of the Nuremberg Tribunal were the judges of the four Allies, which is particular in that it puts Soviets, Americans, British and French in the same court. There are 25 defendants, acquittals and a whole series of death sentences at the other end of the spectrum, the death penalty was then granted as normal in the case of war crimes.

The rules consisted of rules of human law, on the means and methods of warfare; the International Military Tribunal also judged the crime against peace, i.e. the act of aggression, and finally the Tribunal had jurisdiction to prosecute crimes against humanity.

Why was the crime against humanity invented after the Second World War?

War crimes were not enough on a decisive point, war crimes are the violation of the law and customs of war and the law of war fundamentally protects enemy nationals during armed conflict, it is the soldiers of the opposing belligerent party who are protected by the conventions, the civilians of the opposing party who are protected against unfair acts committed by the enemy belligerent.

The law of war, on the other hand, has never been concerned with the way in which the State treats its own nationals, the law of armed conflict deals with those in need of protection, those in need of protection are those who may suffer injustice.

As long as these people have our nationality or are of co-belligerent nationality, depending on this there is a war crime or not and that is what has been considered shocking that we can sometimes and sometimes not prosecute acts of the same gravity simply because of the more or less hazardous fact that the victim has a nationality.

The crime against humanity has been included in the Statute of the International Military Tribunal to address this gap, nationality does not count in the context of the crime against humanity.

The International Military Tribunal has been accused of being the justice of the winner and of having punished new offences.

It is the justice of the winner literally, the four allies created and composed this tribunal, from this point of view we will formally appreciate the progress made with the International Tribunal today; on the other hand, if we want to suggest that it was a tribunal of the winners and that international justice was biased, the historical testimony speaks clearly, these are trials where standards have been saved.

On the main defendants there were acquittals, the procedure was quite exemplary, the allies even refrained from incriminating acts that were war crimes when they knew they had not been entirely clean in this matter. For example, there are no prosecutions for terror bombings for the simple reason that the allies themselves had carried out such bombings.

On the whole, it is a victor's justice, but materially, the highest standards were maintained, Jackson personally watched over it, the people who were there had a certain opinion and attention to the historical importance of that moment and the fact that they would be judged later on for those judgments.

There are retroactive offences, aggression was not clearly prohibited until 1945, these prohibitions were not part of criminal law, the prohibition and obligation not to use force gives rise to individual criminal repression, the crime against humanity is a new offence: "nullum crime sine lege, lege praevia".

Here too there is a certain failure in Nuremberg that must be dealt with, the crime against humanity has been tried to be temporized to be committed in the context of an armed conflict, a crime against humanity could not be prosecuted by the court if it was not linked to the armed conflict: the aim was to maintain a link between the crime against humanity and war crimes committed in the context of an armed conflict.

It was not possible that it was otherwise, there is still a precedent in customary law, but there is no doubt that these crimes were punishable according to all the existing internal codes of all countries, we simply took some liberties, creativity was a little greater in the crime of aggression.

After 1945, there was a long question about criminal courts. Between 1949 which are the last trials in the occupation zones and 1993 is mainly normative work and national repression at the internal level. In 1948 with the International Convention against Genocide a new crime appeared, in Nuremberg no conviction for genocide appeared, a notion not defined at the time.

Crimes against Jews were not prosecuted for genocide in Nuremberg, the deputy head is persecution, which replaced genocide as a criminal offence, while genocide was not defined as a criminal offence.

When we talk about the Armenian genocide, there are material elements of genocide, formally the crime did not exist in 1921, 1922 and 1923: from a legal point of view there is no incrimination, historically there is genocide.

Then, it was the General Assembly and the International Law Commission that brought international law to the fore, first to the General Assembly, which gave these principles a universal extension, and then to the International Law Commission, which for many years codified the International Criminal Code, which was the draft code of crimes against the peace and security of humanity that began in the 1950s and had to be adopted in 1960 because there was a problem with the definition of aggression.

The 1990s are indeed a decade of international criminal law and criminal courts, it is so true that everyone in the doctrine writes on this subject.

The Criminal Tribunal for the former Yugoslavia and the Criminal Tribunal for Rwanda were created by the Security Council according to a competence given by the United Nations Charter. These powers are found in Chapter VII of the Charter, which allows the Security Council to take binding measures when international peace and security are at stake; thus, an international tribunal with coercive powers can be quickly created for Member States, which can create it by decision and assume binding jurisdiction.

The only viable alternative was to go through the Security Council, which is the only body that can take a decision.

These two tribunals are called ad hoc tribunals created in a particular framework by a resolution, 808 for the former Yugoslavia and 855 for Rwanda; there has still been one or more ad hoc tribunals created, which is the Tribunal for Lebanon or a judge from Geneva, Robert Roth seated.

This tribunal is also a creation of the Security Council under Chapter VII, with the particularity that the Lebanese government itself asked the Security Council to create this tribunal because the Lebanese government did not think it would have the possibility of the parliament continuing certain attacks committed during this period.

The particularity of this tribunal is that there has been the criminalization of certain crimes under the Lebanese Penal Code, materially it is a special tribunal, formally it is an ad hoc tribunal created by a Security Council resolution.

There are also the so-called "hybrid" or "mixed" courts, sometimes they are international chambers incorporated into the domestic criminal system, as in the case of Cambodia's judicial system, the most famous of the hybrid courts, and the Criminal Court for Sierra Leone, which has handed down a number of judgments on different matters, including important child soldier judgments.

The Sierra Leone Court is a hybrid court because it was not created by a binding Security Council resolution, but by the United Nations and the State concerned.

It is therefore on the basis of an agreement between the United Nations and the State concerned that mixed courts are established and not on the basis of a binding Security Council resolution, which also means that the measures of these courts are not equally binding on all Member States.

Why was a series of hybrid/mixed courts or chambers created?

There are a whole host of reasons that are not legal or exclusively legal, only reasons of opportunity, prudence, good management, etc.

In mixed courts, there is both international and local representation, there are local judges and international judges, it is mixed in terms of composition and procedures applied, this was seen as an opportunity to engage the local state in a legal process, to train staff, to allow the local system to evolve.

It was considered that the enrolment of the local State was of a nature to advance the local judicial system.

There were also financial problems with the ad hoc tribunals, in the mid-1990s the United Nations was facing budgetary problems. However, this is not automatically charged to the United Nations budget.

There is the possibility of engaging more easily China and Russia, which were becoming critical of the ad hoc tribunals, and of having easier consent, after all Sierra Leone has consented, which is why it has been possible to create the Lebanon Tribunal.

The International Criminal Court is the last link from the ideal point of view, it is a permanent court, a Court, called a permanent court in international law.

The International Criminal Court was the idea, from the meeting, of non-governmental organizations and a whole series of States, to extract international security from the hands of the five powers of the Security Council; it is obvious that for Yugoslavia or Rwanda an ad hoc tribunal can be introduced.

It was a concern to have a permanent Court organized in advance and not created on a case-by-case basis, to have an institutional Court that operates on equal rules and that is not a special court manipulated on a case-by-case basis.

The Court was created by a conference in Rome in 1998, the Statute was adopted after long and arduous negotiations, never before has a conference been held by so many States and non-governmental organizations, the latter having been very present in Rome, including the International Committee of the Red Cross.

The Rome Court Statute entered into force in July 2002 following 60 ratifications and a certain delay, on 11 March 2003 the Court began to operate.

This functioning of the Court has so far been quite difficult: the Court has so far delivered only 2 judgments, it has heard cases, but the problems have arisen either because it did not have enough power to force people to appear before it, or because the proceedings are lengthy and cumbersome, or because it is too costly. The court is too new to be judged at this stage, but it is true that there are structural problems, it is still far too influenced by the Anglo-Saxon procedure which is poorly adapted.

For example, the tribunal for the former Yugoslavia cost 10 to 15 times more than the International Court of Justice, depending on the year; on the whole the experience was worth trying.

What is the organization chart of the Court?

There are a series of bodies, each with its own functions, there is, as in any court in grievance registry, the administration of the court which does all the administrative acts, makes the files, takes care of the translation, receives the documents, makes the statistics, makes the correspondence, all this is in Article 43 of the Statute.

Statut de Rome de la Cour pénale internationale - article 43

There is an office with the prosecutor; these functions are described in Article 42 of the Statute, it investigates both for the prosecution and in principle for the defence.

Statut de Rome de la Cour pénale internationale - article 42

Then there is the Pre-Trial Division, the powers are specified in articles 56 et seq.; it is a rather special body, it must confirm the charges of the prosecutor or reject them in certain cases. It is an intercalated organ.

There is the Trial Division - these are the different chambers before which trials take place, everything happens in the first instance.

Finally, there is the Appeal Division, which is the court chambers for appeals against first instance decisions and also for certain other important decisions such as appeals relating to prosecutor's decisions such as admitting or not admitting evidence, there is the possibility of appealing against certain acts of the prosecutor.

What are the competences of the International Court?

The answer can be found in Articles 5 to 8 and now 8a of the Staff Regulations. For the article of aggression, it is necessary to read article 8bis inserted in the Kampala conference in 2010.

Statut de Rome de la Cour pénale internationale - article 5

Statut de Rome de la Cour pénale internationale - article 6

Statut de Rome de la Cour pénale internationale - article 7

Statut de Rome de la Cour pénale internationale - article 8

Amendements au Statut de Rome de la Cour pénale internationale relatifs au crime d’aggression - article 8 bis

It should be noted that there are notable absences such as terrorist crimes, this does not mean that terrorist acts cannot be prosecuted, an act that induces terror can be induced as a war crime in the case of conflict; there is no generally accepted definition of terrorism, but there is still diplomatic dispute over some aspects of this definition such as wars of national liberation.

Another traditional problem is State terrorism, for some people the State can never commit an act of terrorism for others this is possible when it uses terror. For Israel, State terrorism does not exist, there is no legal concept.

Finally, on partial jurisdiction, reference should be made to Article 22 in the Statute of the Court, which establishes the principle of nullum crime sine lege, which is the principle of legality, the Statute provides in this provision that only crimes which have found their place in the Statute may be prosecuted.

Statut de Rome de la Cour pénale internationale - article 22

We must look at Article 7, Article 8, for all the offences, if an offence is not codified in the Statute, the Court cannot prosecute it; terrorism is not within the jurisdiction of the Court, but a war crime could exist even if it is not specifically mentioned in the list. If it can be determined that there is a war crime under customary law, the Court could not prosecute, the crime must be explicitly mentioned in the Statute.

This does not apply to the Criminal Tribunal for the former Yugoslavia and Rwanda, crimes are not limited to crimes defined in the statutes, the Tribunal for the former Yugoslavia takes into account crimes under customary law.

This strict vision of the status is covered by Article 22.

For what time period can the Court have jurisdiction? When must the crimes have been committed?

The relevant information is found in Article 11, the main rule is non-retroactivity.

Statut de Rome de la Cour pénale internationale - article 11

This rule refers to international criminal law, this non-retroactivity has also emerged in treaty law since the Statute of the International Criminal Court and a treaty and treaties do not apply retroactively to Article 28 of the Vienna Convention.

• What does this article mean in the context of the International Criminal Court?

The Court cannot prosecute crimes committed before 1 July 2002 when the Statute enters into force, the date or the Statute enters into force coincides with 1 July 2002, but as it is a treaty there are States that acceded to this Statute later, for these States the entry into force of the Statute is a later date, a date on which the Treaty enters into force for them, so it is necessary to check against these States when their territory is involved or their national is involved.

There are interesting discussions on the possibility of waiving the principle of retroactivity; the doctrine accepts, for example, that a State may submit to the jurisdiction of the Court for acts committed before the date of entry into force for it, but after 1 July 2002.

If State X ratified the Statute of the Court in 2008, which entered into force on 1 July 2008, the State could inform the Court that it accepts its jurisdiction over a previously committed act.

• Why this argument, which may seem relatively particular?

This is a conclusion that the doctrine draws a contrario from Article 12(3); a State not bound by the Statute may accept the Court's jurisdiction, it would be singular if a State not a Member State of the Statute could do more than a State bound by the Statute.

If the non-party State can accept the Court's jurisdiction before 2002, a party State must be able to do the same.

A distinction must be made between non-retroactivity in relation to the crime and non-retroactivity by the body that judges them, the only retroactivity involved is retroactivity by an organ, i.e. the Court's competence to judge these crimes, which does not require criminal law.

There are also certain exceptions to non-retroactivity, there may be continuous crimes, for example if a person is illegally detained or made to disappear is a continuous crime, as long as he is illegally detained.

• What happens if there is arbitrary detention that begins in 2001 and continues in 2002 and 2003?

There is an offence committed in a time slot where the Court has jurisdiction and there is a fraction where the Court does not have jurisdiction for the other time slot.

The nature of the exception and the evidence, in the crime of genocide a special intent to destroy in whole or in part a national ethnic, racial or religious group must be proven, a special intent must be established; an intent is established by circumstantial evidence, it would not be contrary to the principle of non-retroactivity to establish the intent also on the basis of the predator's evidence.

Evidence that proves a particular piece of crime can be collected over a longer period of time.

The first remark about spatial and personal jurisdiction, however singular, surprising, extraordinary it may seem, does not enjoy universal jurisdiction; in other words, individual States may possess universal jurisdiction while the International Criminal Court, which would be more logically designated to exercise that jurisdiction, does not.

This means that the Court has jurisdiction only in certain specified situations where certain links exist, they are of three types:

1. the Court has jurisdiction under the principle of territoriality: when a State has ratified or acceded to the Statute of the International Criminal Court, all crimes falling within the material jurisdiction of the Court fall within the jurisdiction of the International Criminal Court.
2. the International Criminal Court has jurisdiction from the point of view of active personality: for States which have ratified the Statute or acceded, any national of a State Party when committing a crime falling within the jurisdiction of the International Criminal Court, the International Criminal Court has jurisdiction. States that are not parties by means of ad hoc recognition may submit to the jurisdiction of the International Criminal Court, which may recognize that for certain crimes or entire situations on the territory or crimes or situations for which their nationals have committed punishable crimes and subject to the jurisdiction of the Court. The State has a certain choice under Article 12.3 allowing for an extension of jurisdiction.
3. referred to by the Security Council: this constitutes a basis for autonomous jurisdiction, it means that the Security Council, when it refers the matter to the International Criminal Court, thereby creating the jurisdiction of that Criminal Court under Article 13 of the Statute, which must be based on a resolution under Chapter VII of the Charter. This resolution adopted on the basis of Articles 39 et seq. and on the basis of the Charter establishes jurisdiction under the Statute of the International Criminal Court is the only text that establishes the jurisdiction of this Court. The particularity of this capacity for seizure is that it is binding, becoming enforceable against all members of the United Nations, including States that have not ratified or acceded to the Statute. Members of the United Nations are bound by Articles 25 and 103.

We notice that there is no passive personality, the great absent is also universal competence.

The Court's jurisdiction is automatic, no other act is required for the Court's jurisdiction to be established, it is sufficient if the crime took place on the territory of a State that has ratified the Statute.

In the event of a challenge to the Court's jurisdiction; there may be cases where jurisdiction is uncertain, in particular in the case of temporal jurisdiction or whether a national is indeed of a particular State; the general rule is that the Court decides, this rule is mentioned in the Statute in Article 19. In the event of a dispute as to jurisdiction, the court seised must be able to decide on its jurisdiction.

Statut de Rome de la Cour pénale internationale - article 19

The mechanisms for referring cases to the International Criminal Court are not the same as jurisdiction, i.e. who can refer cases to it and whether it is the same, even if the two aspects converge on the Security Council, since referral is equivalent to a title of jurisdiction.

The mechanisms for referring cases to the International Criminal Court, which can refer them to it, these mechanisms are provided for in Articles 13, 14 and 17, and three referral mechanisms are emerging.

1. a State party to the Statute of the International Criminal Court may refer a situation to the Prosecutor: a State that has ratified or acceded to the Statute may refer the matter to the ICC. It can do so in relation to a situation only and not a crime; the situation is defined in the ICC Statute as a situation where one or more crimes may have been committed, crimes that fall within the jurisdiction of the Court of course. It is therefore a set, a complex a situation, a container, a set of events characterized by the commission of one or more alleged crimes at this stage; on the contrary, it is excluded that a State may refer a particular crime or crimes to the Court, it must refer the situation to the Court as a whole. We must submit the package, the overall situation, it is then up to the Court, namely the prosecutor, to decide which case he can investigate; we do not want the States to be able to manipulate. States Parties may submit situations that concern them themselves or submit situations that involve other States Parties. It was probably thought that States would report situations in others. States have mainly reported situations on their territory, they have somehow failed in The Hague. For many years, African States that have submitted cases to the Court have done so according to self-differentiation, which refers to Article 14.
2. situation that may be referred to the International Criminal Court by the Security Council: the Security Council may refer the matter to the Court as a matter of jurisdiction, but remaining at the base a referral mechanism, the Council may refer it on the basis of Chapter VII and Article 13.d of the Statute of the Court in a case where a crime appears to have been committed.
3. the Court may also be seized by the Prosecutor: the Prosecutor may ex officio, proprio motu, initiate an investigation, Article 13.c; he may consider that somewhere in a State where in relation to a situation for which the Court has jurisdiction, an investigation should be launched, and the Prosecutor may do so both in relation to a situation, but he may also do so in relation to one or more crimes, the Prosecutor is the only one who is not obliged to investigate a situation, but in relation to a particular crime. He is allowed selectivity because he is more confident that the prosecutor will act not only according to his professional ethics, but also for substantive and not political reasons. In Rome, during the negotiation for the Statute, a whole series of States were reserved to open an investigation on their own initiative, there was a fear that prosecutors who were too courageous, embarrassing and politicized would open investigations in a very unwelcome manner where States did not wish to do so; for many States, this was a major scarecrow, which is why an attempt was made to limit the prosecutor's power as much as possible to ensure that he could not make an unwelcome effort. The prosecutor must be endorsed by the Pre-Trial Chamber, which is used to endorse the prosecutor's charges when the latter opens an investigation by himself, the Member States wanted to limit the prosecutor's action.

Statut de Rome de la Cour pénale internationale - article 13

Statut de Rome de la Cour pénale internationale - article 14

Statut de Rome de la Cour pénale internationale - article 17

It is worth noting the presence of Article 16 in the ICC Statute, which is a major article against the opposition to the trial, inserted in a kind of counter-compensation against the right of the prosecutor to carry out ex officio investigations. This frightened many States, especially powerful States, and its other means are a political obstacle.

Statut de Rome de la Cour pénale internationale - article 16

In other words, the Security Council cannot only bring an action before the Court under Article 13.b and initiate a new procedure, but it can also do the opposite, it can block, freeze a procedure. This motivation given to the Council was to say that sometimes criminal investigations can disturb the Security Council when it is in a critical phase, when it is trying to restore peace. The Security Council must confront countries in armed conflict, in order to bring peace there must be difficult discussions sometimes with unsavoury people; ICC investigations or investigations can undermine the process and endanger the return to peace, which is why it was considered that the Security Council cannot relinquish the Court's jurisdiction, but freeze it, there is a primacy of peacekeeping over criminal justice under Article 16.

The only case so far in which Article 16 has been successfully invoked is one in which it should not have been used because it was blackmail by a member of the Security Council to obtain an advantage: it is Resolution 1422 of 2002, in which the United States obtained full full immunity of its personnel from the ICC, the Americans said that if this resolution was not passed, it would no longer participate in peacekeeping operations.

It is sufficient that one or other of these States has ratified the Statute of the Court and that the American forces are taken within the jurisdiction of the Court under the principle of territoriality, which is why the United States obtained what it wanted, something that was renewed in 2007.

The principle of complementarity and subsidiarity is of great importance; unlike other international courts, the International Criminal Court has only subsidiary jurisdiction over other States, the ideal aim is that the Court should not be necessary, but that Member States should take the initiative to incorporate into their national law the offences to be prosecuted and that they should organise their criminal systems internally to prosecute these offences internally.

It is the States that must exercise their powers and we want to stimulate them.

This principle of complementarity, which is set out in several places in the Staff Regulations, is found in particular in the preamble § 4 and § 6 and in Article 1.

Statut de Rome de la Cour pénale internationale - article préembule

Statut de Rome de la Cour pénale internationale - article 1

• What is the reason for the rule?

The first reason is pragmatic, the International Criminal Court cannot hear all cases in the world; the only way to conceive of it is through subsidiarity.

The second reason is that local justice is often better than distant justice; a local court is always better equipped, it is closer justice and justice where it is possible to have more trust from a cultural point of view. In principle, we want justice to be done by the actors.

We must try to "empower" local justice, there is no need to bypass it immediately; if justice is not incapable, there is no reason to replace a particular capital by The Hague, the seat of the ICC. The exception to the rule of subsidiarity is under Chapter VII of the Charter; when the Security Council refers the matter to the Court, the International Criminal Court takes precedence when the Council refers it to it on the basis of a Chapter VII resolution.

The content of the complementarity rule is relatively easy in its foundations, the difficulties revolve around the interpretation of certain terms; when the Court is seized of a situation or when the prosecutor is investigating a particular crime - so far the prosecutor has not had to open an ex officio investigation - the prosecutor informs not only States parties but also third States when they have links with the jurisdiction giving them the possibility to investigate the case themselves.

There is a time limit, but this is not strict law, it is one month after the notification in Article 18 of the Staff Regulations.

Statut de Rome de la Cour pénale internationale - article 18

If a State party or non-party, requested by information, decides to bring the case to it, the prosecutor shall proceed with the case, give priority to the State concerned, but shall remain seized of the case, the prosecutor shall keep himself informed before the competent national courts, and if he considers that certain conditions are met, he may bring the case before the International Criminal Court.

What are the cases that allow the prosecutor to attract cases to the ICC?

They are found in article 17, which refers on the one hand to the lack of willingness of the State to pursue unwilling and on the other hand to the inability of the State to pursue "unable".

These two parameters have not yet been interpreted; Libya currently claims priority by considering that it is fully capable and willing to conduct a trial in Libya. The ICC has considerable doubts.

The term unwilling, and therefore the unwillingness to prosecute, manifests itself, for example, when national proceedings are only a kind of screen to shelter a person from a real prosecution, mock proceedings: these are justified procedural delays, when the trial drags on, so much so that, depending on the case, they may also be prescribed, in some countries crimes are statute-barred in others, imprescriptible.

The inability to prosecute is based more on objective reasons, such as failed states where, after a civil war, the entire judicial system has collapsed and it will take some time to rebuild it; a state is not in a position to conduct a trial or ensure its fairness. Another reason would be the obstacle of existing amnesty laws which objectively prevents domestic courts from prosecuting either in whole or in part for legal reasons.

The prosecutor must judge and evaluate a situation on the basis of his or her information until, and even after, the sentence has been passed.

It is possible that artificiality only appears after the judgment has been rendered, the procedure can be simulated when the sentence imposed is completely derisory.

A person can be convicted according to a quick procedure that seems to be impartial and independent, but a few weeks after the sentence a pardon is granted and the person is released; it could appear after the fact that the procedure was a sham.

The Court has so far rendered two formal judgments in its ten years of existence, but it is seized of a whole series of situations: the situation in Uganda where the trial is pending before one of the chambers, the situation in the Democratic Republic of the Congo where a judgment has already been handed down, the situation in Darfur, Sudan, the situation in the Central African Republic, the situation in Kenya, the situation in Libya or the Security Council in 2011 referred the matter to the Court, the situation in Côte d'Ivoire and the situation in Mali.

The work of the International Criminal Court is based above all and above all on cooperation between States, it has no police force to arrest suspects, it has no means of directly compelling States except to report cooperation problems to the Security Council; without State cooperation, the Court is basically nothing.

This may seem disappointing, but it is a reality because at the international level we do not have an executive force. The collaboration of the Member States is crucial, as it is found in the distribution of work, and cooperation between the Member States is required.

Finally, the International Criminal Court is based on an agreement bearing all the traces and stigma: the Court is not there and cannot be there to investigate on a basis of perfect equality all the crimes committed in the world.

This is regular with regard to the Court's treaty basis, first and foremost the Court does not have omnicompetence, this is due to the fact that the law of treaties is thus made, the treaty applies to the States that have ratified it, moreover there are mechanisms for seizure, crimes can be committed, but if the Court is not seized, nothing will happen.

The Court makes a contribution by raising awareness among States, but the remaining gaps and inequalities are due to its conventional nature.

The Court must be judged in relation to its possible achievements, but it must not be judged and condemned for reasons that cannot be its own because of the statutory limit.

Where is the genocide being regimented?

Genocide is one of the crimes that falls within the jurisdiction of the International Criminal Court.

First, the general aspects, first of all, where is the genocide regulated? This mentioned crime is defined in Article 6 of the ICC Statute, but also in Article 4 of the Criminal Tribunal for the former Yugoslavia.

The definition is strictly identical in all texts, as it is taken from Article 2 of the 1948 Convention against Genocide; this is not the case for the notion of a crime against humanity, which makes the situation much more difficult from a legal point of view and marks the evolution of the crime from a customary law point of view.

Convention pour la prévention et la répression du crime de génocide, 9 décembre 1948 - article 2

As for the object of the crime if a material safety data sheet were to be made, the intimate particularity of the crime of genocide is as follows: the crime of genocide is characterized by the willingness of the perpetrator of the crime to destroy entire human groups.

We deny the possibility and the right to exist to entire human groups that we wish to eradicate in an approach based on depersonalization, we no longer see individuals as individuals in their particularity, but in their number of the personnel number that we wish to eradicate.

There is sometimes a livestock logic to the crime of genocide: somewhere these people from a particular group are considered as livestock that must be taken to the slaughterhouse.

What defines the legal profile of the crime, there are three main elements of the crime of genocide:

1. it's a series of prohibited acts.
2. these crimes should not be committed against protected groups.
3. intention to destroy in whole or in part one or more of these groups: the perpetrator of the acts in question through these acts must want to destroy in whole or in part a protected group, it is a matter of mental representation.

In criminal law, the key distinction in criminal matters is on the one hand the objective constituent element and on the other hand the subjective constituent element. To pronounce a sentence of conviction, it is always necessary to verify that on a given sanction these two elements have been achieved. For example, with regard to theft, there are a series of objective elements such as the fact that one must appropriate a material thing that belongs to others. There is also a subjective element which is the will to appropriate the thing and the representation that the thing is the one belonging to another. If we do not imagine that the thing belongs to another in the subjective element we cannot commit a theft.

Objective elements are only conditions, in addition to which a subjective constitutive element of knowledge and will is required.

In short, the objective is what we see, in homicide it is to witness the death of someone attending the scene.

There are certain prohibited acts and protected groups, simply there is an essential element which is the intention to destroy. If the intention cannot be determined there is only negligence, it is up to the prosecutor to establish the intention and for that purpose he must rely on clues.

There are four groups protected against genocide:

• national groups ;
• ethnic groups ;
• racial groups ;
• religious group.

The national group has always been understood in the case law of the criminal courts as a group composed alternately of two types of persons:

• First, a national group that unites all persons with the same citizenship, being the link to a state such as a passport. National minorities have been considered as a national group: minorities have the same nationality as the majority, but they are attached to the national group.

The ethnic group has been defined in the case law as a group based on a common language and culture: cultural and linguistic traditions are explored. You have to know the socio-cultural realities, sometimes an ethnic group is not much. In the case of Rwanda, Tutsis are an ethnic group according to case law, but do not differ in terms of the language and culture of the majority, it is an ethnicity that emerges from the documents.

Racial groups are determined by filiation through the crossing of genomes: in 1948, what was meant by this criterion was based on physical and hereditary characteristics.

Religious groups are according to the jurisprudence of groups based on religious beliefs and common practice. Religious beliefs or religious practices are beliefs or practices based on spiritual beliefs, but the outer limits of a spiritual ideal are not very clear. Thus in doctrine it has recently been conceived whether an atheist group can be conceived as a religious group.

The definition of these groups, which is an alternative, is not waterproof and on the other hand these categories are coloured, with sociocultural characteristics.

• A question arises as to the definition of these groups since it is part of the objective constitutional element; therefore, one could ask whether these groups should be defined according to what the perpetrator thinks or whether the group possesses the qualities mentioned objectively.

The Court decided and adopted a mixed position of compromise between the fact that the group is objectively constituted and the subjective vision according to what the perpetrator thinks.

The intermediate position is to take an objective definition as a starting point, the judge tries to determine whether something like a national, ethnic, racial or religious group exists on the ground, but then the judge extends this objective consideration by taking into account subjective and socio-cultural factors in the constitution and perception of these groups;

Sometimes people form groups because they have a common feeling of well-foundedness or no stigmatization, sometimes groups form in the opposing destiny, there is a subjective factor with the perception of solidarity in a persecution; on the other hand, the judge may take into account what the perpetrator thinks or considered to what extent the perpetrator thought that this group formed a group, national, religious, or racial.

If there is no objective element, there is only one attempt, but since there is no objectively constituted group, there is no crime, we try to understand what a group is by taking into account the socio-cultural factors of stigmatization, perceptions also form a group because the group perceives something in common.

The question of exhaustiveness allows us to know whether genocide is being committed against a national, ethnic, religious or racial group.

The International Criminal Court has only one jurisdiction over crimes listed in its Statute, it cannot hear any crime that is not provided for in the written law of its Statute under Article 22.

The jurisprudence first floated, however, if we read the Akayesu decision in the Rwandan Criminal Court in 1998, the court explains that the list is exhaustive for what constitutes a group, but the list is not exhaustive for the groups themselves.

According to the Trial Chamber, the four groups mentioned in the Genocide Convention and the Statute of the Rwanda Tribunal have common characteristics, any group against which genocide is committed should have a common characteristic: the group in question must be stable and permanent.

In the minds of the drafters of the 1948 Convention, the national group was formed, the infamy of crime was seen in persecuting and destroying for qualities it could not.

Case law has subsequently abandoned this idea because other groups could be added depending on whether they are stable and sustainable; nullum crime sine lege cannot be extended, because this would mean extending criminal liability beyond what is foreseeable for the offender.

Statut de Rome de la Cour pénale internationale - article 6

It is necessary to quickly analyze these different entries; ethically it can be said that they all refer to the letter and the physical or biological existence of the group.

Physical existence, if you eliminate members of the group, you destroy the group, you attack the physical existence of people who already exist by trying to destroy them.

It is also possible to attack the group's subsistence over time, not to eliminate people who already exist, but to ensure that the group does not reproduce, to attack biological existence.

On the other hand, the drafters of the 1948 Convention, and since then the case law in an unbroken, but linear and constant line, have refused to extend the notion of genocide to any form of cultural genocide.

Cultural genocide is everything that concerns the destruction of the group's means of expression, the use of language; this is thematized in the doctrine of cultural genocide, but legally cultural genocide does not fall within the criminal offence.

The main reason why it was not included in the crime of genocide is that not all forms of discrimination should be elevated to genocide.

Murder is the physical elimination of members of the group by killing them, if it is to be understood as intentional homicide and also as unlawful homicide; homicide is not necessarily unlawful as in the case of self-defence as an ultima ratio, sometimes the law even makes it the duty of the perpetrators in systems where the death penalty is applied.

Illegality is not a condition too much, it is unlawful homicide, the term homicide is neutral. The murder is legally connoted.

Murder must be intentional; when we talk about intent in criminal law it can include several things such as direct fraud and possible fraud, but there is one thing to remember, intention can be either direct by acting directly and intentionally.

It can happen that someone has possible fraud, it is a less strong intention, it is a situation in which a person thinking about what could happen through his actions, does not want this to happen, but decides to act as he had planned, but accepts the consequences of the result of his action. The possible dole is sufficient - indirect intended - .

The spirit of letter b is to create a category of "undead", to alienate the group by causing serious physical or mental harm to its integrity, such as acts that harm the health of group members even if they do not have the immediate intention of killing them, but to attack the physical integrity of the group in such a way that it is destroyed, prostrated, and its viability is no longer ensured. People are sometimes put in a position to witness the rape and murder of close relatives.

Letter c is similar to letter b, it is about means of giving indirect death, it is about aiming at the death of people in indirect and slower ways than in letter a. The letter c measures are indirect and insidious leading to the death of people. For example, if groups do not have access to doctors, if groups are driven out of their homes, if groups are subjected to excessive work, if they are denied access to hygiene or minimal clothing.

Letter d is intended to hinder births within the group, there is no interest in people who already exist as an obstacle to the group's ability to procreate. These are any coercive measures in which it is ensured that births in the group cannot take place. These may include sterilization, female genital mutilation, birth control, and gender separation.

The case law mentions more subtle means such as the traumatic use of rape or the case of a society in which nationality and ethnicity, membership of the child's group is determined according to the father and not according to the mother by massively using rape so that the father's children are from the father's ethnic group.

Letter e was inserted at the proposal of Greece, which is subject to the transfer of children from Greece to other countries, in order to have this application, the transfer of these children must be forced, there is no free consent and in addition, the child is defined as any person who has not reached the age of 18.

Is the one-child policy in China genocide? No, because the purpose of the one-child policy is not to destroy all or part of a national group, but rather to ensure that it does not explode in all directions; we cannot have a crime of genocide in that sense.

The same applies if the termination of pregnancy is free since the termination of pregnancy should be a forced termination.

should a state be involved?

• A State through its officials and organs commits genocide; does it require the participation of a State?

It is extremely clear from the case law that such a link with a state plan or policy is not required as in the Jelisic case in paragraph 48. It is not a legal necessity, but historically they are acts perpetrated by state agents or through their support.

If such a plan or policy exists, it has some impact, if it exists, it supports the intention to destroy, because if you have a plan, it means you've thought about it and it's easier to prove the intention to destroy.

Mens Rea - intent to commit a criminal offence - is the subjective constituent element is subdivided into two parts with regard to genocide:

• intention according to the general rules as provided for in Article 30 of the ICC Statute: each of the prohibited acts, when committed, must be committed with intent, which includes direct intent, the possible dole, in other words it is never possible to commit genocide by negligence, it is not possible to commit any of the five acts by negligence.
• special fraud: intention to destroy a group in whole or in part. This is an additional subjective element, not only does it require intention, but also through this act, the perpetrator must have an intention to destroy all or part of this group.

There are some offences and crimes that provide for such a double element as murder with the intention of discriminating, in German it is called Delikte mit überschießender Innentenz.

We have to determine how to destroy a group in whole or in part, how to destroy a group in whole or in part? What should the result be? Is it only the intention or a certain result?

It is the scope of the destruction that is at stake, it is first necessary to determine which group we want to destroy, even Hitler could not have the crazy claim to eradicate Jews from the whole world.

If we kill all the Jews in Germany, is it enough to say whether we have destroyed all or part of the Jewish ethnic and religious group?

Case law teaches us that, to speak of genocide, a substantial fraction of the group must be destroyed, there must be a certain result produced. According to the same case law, in particular the Krstić case may be declined either in quantitative or qualitative terms.

The quantitative way of seeing how to destroy a substantial fraction of the group is numerical, i.e. a considerable number of victims is required.

The qualitative way to consider the destruction of a substantial fraction of the group is to consider that when one attacks fractions that are particularly representative of the group, such as its elites and leaders, then one beheads it somewhere.

Case law therefore recognizes that the work can be done either by tackling head-on by trying to eliminate as many people as possible or also qualitatively by targeting people chosen for their symbolism in the group.

The term partly obviously also refers in part to groups affected in a limited geographical area, in the case Krstić, the Court answered in the affirmative, it is the only situation in the former Yugoslavia where genocide was admitted in the case of the situation of Tuzla and Srebrenica, because the Court admitted that Bosnian Muslims had a symbolically important value for attacking them to constitute genocide. It is according to a socio-cultural criterion how she considered herself and how others considered her. This symbolic value has led to its being considered as a group as such.

The boundaries are not simple and even in genocide, questions of great difficulty arise.

Annexes

• DOMINICÉ, Christian. L’émergence de l’individu en droit international public In : L’ordre juridique international entre tradition et innovation [en ligne]. Genève : Graduate Institute Publications, 1997 (généré le 31 décembre 2015). Disponible sur Internet : <http://books.openedition.org/iheid/1341>. ISBN : 9782940549214
• Sperduti Giuseppe. La personne humaine et le droit international. In: Annuaire français de droit international, volume 7, 1961. pp. 141-162. Url : http://www.persee.fr/doc/afdi_0066-3085_1961_num_7_1_1081