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Man versus the State: The Shifting Boundary of Sovereign Authority
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This expansion of the territorial jurisdiction over crimes against humanity was
codified in the UN Security Council’s adoption of the Statute establishing the
International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY Statute
gives it authority to prosecute crimes conducted in either inter-state or internal armed
conflicts.
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The temporal expansion was institutionalized in the Statute of the
International Tribunal for Rwanda (ICTR) and the International Criminal Court. The
ICTR and ICC statutes do not require that the acts be conducted in times of armed
conflict, only that they be “part of a widespread or systematic attack on any civilian
population.”
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All three stipulate that no state can conduct either genocide or crimes
against humanity.
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Regardless of whether a state of armed conflict is in existence, these
crimes are justiciable, and starting with Nuremberg, there is no statute of limitations on
when individuals can be prosecuted for crimes against humanity. Another incursion on
the traditional boundaries of sovereignty and sovereign immunity that Nuremberg began
was that of individual responsibility for state-sanctioned crimes. The Nuremberg
Tribunal, ICTY, ICTR and ICC all enshrine the principle that not only are those in
official command responsible for crimes, but so are the individuals who actually commit
or aid and abet these crimes. This further erodes the sovereign state’s ability to shelter its
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ICTY Statute, Article 5, adopted May 25, 1993.
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Rome Statute of the ICC, Art. 7, adopted July 17, 1998. See also ICTR Statute, Article 3, adopted
November 8, 1994.
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Crimes against humanity are defined in the ICC Statute as “any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
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This expansion of the territorial jurisdiction over crimes against humanity was
codified in the UN Security Council’s adoption of the Statute establishing the
International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY Statute
gives it authority to prosecute crimes conducted in either inter-state or internal armed
The temporal expansion was institutionalized in the Statute of the
International Tribunal for Rwanda (ICTR) and the International Criminal Court. The
ICTR and ICC statutes do not require that the acts be conducted in times of armed
conflict, only that they be “part of a widespread or systematic attack on any civilian
population.”
against humanity.
crimes are justiciable, and starting with Nuremberg, there is no statute of limitations on
when individuals can be prosecuted for crimes against humanity. Another incursion on
the traditional boundaries of sovereignty and sovereign immunity that Nuremberg began
was that of individual responsibility for state-sanctioned crimes. The Nuremberg
Tribunal, ICTY, ICTR and ICC all enshrine the principle that not only are those in
official command responsible for crimes, but so are the individuals who actually commit
or aid and abet these crimes. This further erodes the sovereign state’s ability to shelter its
71
ICTY Statute, Article 5, adopted May 25, 1993.
72
Rome Statute of the ICC, Art. 7, adopted July 17, 1998. See also ICTR Statute, Article 3, adopted
November 8, 1994.
73
Crimes against humanity are defined in the ICC Statute as “any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of the
attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any
identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined
in paragraph 3, or other grounds that are universally recognized as impermissible under international law,
in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
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