Thesica.org, the #1 open access web portal for PhD theses...

Why PhD theses...

PhD thesis is the result of years of hard work.

keyword researchMeasured by download count PhD theses are one of the most popular items world wide on open access repositories. But unless a thesis is published, it is very difficult for other researchers to find out about it and get access to it. Theses are often under-used by other researchers. Thesica.org attempts to address this issue by making it easy to identify and locate copies of many theses in various disciplines.

Conflict between the axiom of Unviersal Jurisdiction and State Sovereignty with Regard to International Crimes by the Head(S) of State(S): A Study with Reference to Immunological Protections

Conflict between the axiom of Unviersal Jurisdiction and State Sovereignty with Regard to International Crimes by the Head(S) of State(S): A Study with Reference to Immunological Protections
RHISHIKESH N DAVE

2012

Department of Law, Saurashtra University, Rajkot 364 002, INDIA.

ABSTRACT

The horrifying experiences of the Armed Conflict in the Gulf, Vietnam, Somalia, Yugoslavia and Rwanda remind us of the war and the suffering, death and destruction it causes. War is against humanity and involves most brutal and arbitrary violence. The contemporary International Law - in particular the charter of the United Nations - prohibits not only the use of force but even the threat to use force with exception to the collective actions taken by the United Nations or the defensive measures permitted by Article 51 of the Charter. In order to make this prohibitions realistic international law offers to states a great scale of means and measures for the peaceful settlements of disputes with a view to an effective abolition of the recourse to war.

Unfortunately, the prohibition of war proclaimed after World War - II is not respected. The sad reality of today's International Relations is that armed conflicts continue spread and are not ready to disappear. The recourse to the armed force is accompanied by most heinous crimes such as Genocide, Rape, Enforced Prostitution Torture, Hostage taking summery executions, internment, deportation and intimidation. Armed conflicts completely bend twist, torture and put to the ground the mechanisms for the protection, and promotion of Human Rights.

The threes core international crimes i. e. Genocide, Crimes against Humanity and War Crimes are expressly prohibited by International Law through adoption of serious of Conventions, and also by setting up of International Tribunals and International Criminal Court.

All these Conventions makes it mandatory for the parties to make these crimes punishable under the municipal laws. The concept of International Jurisdiction for these crimes has also been established. In short these crimes have achieved Jus Cogens status under the Public International Law, and any individual who has perpetrated such crimes is punishable irrespective of his position in Government. Even the Heads of the States can be punished for such crimes according to International Criminal Law.

The conflict starts when it comes to punishing heads of state for the International Crimes. Two conflicting norms exists in International Law. The principle of sovereign immunity on one side and International Crimes on the other side. When a head of state perpetrates or orders, plan, abates perpetration of International Crimes, can he claim sovereign immunity for such acts under International Law?

There are conflicting decisions of various international Courts and Tribunals and also by various National Courts specially after the controversial decision of International Court of Justice in Belgium v Congo the debate has heated again. This conflict has to be resolved in order to deter head of states from perpetrating such heinous crimes.