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K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
Analyzing the circumstances surrounding
creation of the International Criminal Tribunal
for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda it can be concluded
that sovereignty of both – the former
Yugoslavia and Rwanda were disregarded by
the respective decisions of the Security Council,
when the human rights situation in both
countries reached a point of extreme abnormality,
and international community decided
to deal with the most appalling human rights
situations. Following the same line of argumentation,
as employed when considering the
mentioned cases, it can be easily argued that
when the situation is so harsh in terms of human
rights abuses that the perpetrated acts
equal to international crimes, the prosecution
of these crimes must be entrusted to any national
court, “pproperly constructed”, as mentioned
by the Versailles Conclusion, to bring
perpetrators to justice by all means available,
and as soon as possible. This is not only important
for the prosecution of already committed
crimes, but this may also play a role of
deterrent and contribute to preventing future
atrocities. Realizing the importance of these
actions, as well as considering the fact that
sovereign equality of states has already been
not once violated by other states, being that
through decisions of the Security Council or
by way of organizing the “victors’ justice” oriented
tribunals, it is not legitimate to argue
that prosecution of international crimes by
national courts of any state, irrespective of a
bone with the perpetrated crime will be an action
directed against sovereign equality of
states.
Recent developments have given even
more reason to consider the judicial settlement
of this issue in any domestic court more reasonable
and both – legally and morally justifiable.
The developments that are reviewed in
the following Chapter are much more controversial
than the idea of prosecuting criminal
leaders of any sovereign state by another
might be. So called “humanitarian intervention”
will be analyzed in order to contrast them with
the possibility of undertaking criminal prosecutions,
disregarding the pleas of immunity and
showing that there may be worse threats to
sovereignty of states than prosecution of
individual – however highly placed – perpetrators.
IV. UNIVERSAL JURISDICTION AND A NEW
ATTEMPT TO PROTECT HUMAN RIGHTS –
HUMANITARIAN INTERVENTION
To prosecute any perpetrator of human
rights atrocities, a respective jurisdiction 55 must
be established. This Chapter will briefly introduce
a topic of jurisdiction, as protection of
sovereign equality of states is also related to
the concept of jurisdictions: “Jurisdiction concerns
the power of the state to affect people,
property and circumstances and reflects the
basic principles of state sovereignty, equality
of states and non-interference in domestic
affairs. Jurisdiction is a vital and indeed central
feature of state sovereigntyp”. 56 A notion
of jurisdiction falls within the scope of the interest
of this essay, and is dealt with in this
Chapter, as much as it is argued in the essay
that criminal responsibility for international
crimes must by all means be subject to “universal
jurisdiction”, and thus, sovereign immunities
may not be claimed as a shield for the
highest level perpetrators of such crimes.
Shaw argues, that “pwhile jurisdiction is closely
linked with territory it is not exclusively so tied.
Many states have jurisdiction to try offences
that have taken place outside their territory...” 57
Shaw further states that “[diplomats], for example,
have extensive immunity from the laws
of the country in which they are working and
various sovereign acts by states may not be
questioned or overturned in the courts of a
foreign country”. 58
Of all the principles of jurisdiction the universality
principle is of interest for the purposes
of this essay. Universal Jurisdiction 59 “is at a turning
point”, argues Broomhall, 60 mentioning that
“this doctrine stands poised to become an integral,
albeit supplemental component of the
emerging international justice system. At the
same time, serious obstacles stand in the way
of its realization as a consistently available tool
of fair and impartial enforcement”. 61 These difficulties
derive mainly from the continued assertion
of sovereign immunity and granting it quite
an importance in international relations. Universal
jurisdiction is an interesting concept for the
purposes of this Essay, as it disregards the different
mechanisms of protection and provides
a possibility for domestic courts of any state to
bring perpetrators of international crimes to justice,
despite the nexus the committed crimes may
have with a prosecuting state. It can be argued
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