Extending International Criminal Law beyond the Individual to ...

Extending International Criminal Law 901
have been held judicially accountable for violations of international law, albeit
usually through national jurisdictions. Before we turn to these developments,
we should, however, briefly canvass some of the doctrinal ideas that continue
to influence our thinking.
2. The Subject of Subjects and the Question of
International Legal Personality 6
James Brierly, in his quest to reduce the focus on the state and emphasize the
rights and obligations of individuals that make up the state, attacked the doctrine
which sought to exclude other actors from subjectivity, and he played
with the concept of personality:
Even the state, great and powerful institution as it is, can never express more than a part of
our personalities, only that part which finds expression in the purpose or purposes for
which the state exists; and however important these purposes may be, however true it
may be that they are in a sense the prerequisite condition of other human activities in a
society, they never embrace the whole of our lives. 7
Brierly asks us to suspend our belief in the sanctity of subjectivity and sharpen
our senses.
If, therefore, we approach the question of the subjects of international law with a true
perception of what the personality of states entails, it becomes difficult to believe that
there can be anything sacrosanct about a practice which treats states as the subjects of
the international community. It is not a principle, but essentially a rule of expediency, and
mainly a rule of procedure. 8,9
Brierly foresaw other entities becoming subjects of international law, just as
‘the law of any state has for its subjects both individuals and institutions’, 10 and
his depiction of the assumption that states are the exclusive subjects of international
law as a ‘rule of procedure’ is particularly helpful in our context.
International criminal law operates before multiple tribunals with different
jurisdictions and rules. Although all the international tribunals established so
6 The following sections draw on my book Human Rights Obligations of Non-State Actors (Oxford:
Oxford University Press, 2006).
7 J.L. Brierly,‘The Basis of Obligation in International Law’ in H. Lauterpacht and C.H.M.Waldock
(eds), The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly
(Oxford: Clarendon Press, 1958), 1^67, at 51; English version of a course originally delivered at
the Hague Academy of International Law in 1928 ‘Le Fondement du caracte' re obligatoire du
droit international’, 23 Recueil des Cours (1928), iii.
8 Sovereignty, Seisen, And the League’, 7 Fischer Williams, ‘Sovereignty, Seisen, And the League’,
BritishYear Book of International Law (1926), 23 (footnote in the original).
9 Brierly, supra note 7, at 51. Cited in part and discussed by J.E. Nijman, The Concept of
International Legal Personality: An Inquiry Into the History and Theory of International Law (The
Hague: T.M.C. Asser Press, 2004), 146.
10 Brierly, supra note 7, at 52.