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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
though that exercising universal jurisdiction may
not be considered to be widely supported.
Development of relatively recent notion of
humanitarian intervention 62 is interesting for
the purposes of this essay, as it serves as a
tool of further erosion of a concept of sovereign
immunity for the sake of dealing with the
mass human rights atrocities in any given state
after all other legal and political means have
proven to be inefficient. This new concept is
considered to be emerging due to the very
fact that international crimes so severely violate
essential human rights that it is not permissible
for the international community not
to intervene, even by using force and thus
punish the perpetrators. Consequently a
question emerges: if humanitarian intervention
may be justified to protect human rights,
what is so unacceptable in recognizing universal
jurisdiction over international crimes and
instead of letting causing even more devastating
results for the general population of any
given country, leaders of which might be implicated
in committing international crimes, to
subject these leaders to universal jurisdiction
and bring them to justice in any state physically
capable to do so The benefits of such
change in practice seem to be the following: a
criminal leader receives deserved punishment,
prosecution is targeted and instead of involving
risk to lives of groups, already victimized
by policies or conducts of criminal leaders only
those “deserving” are hold to account. In this
case prosecution is targeted and victims can
see that justice is served, whereas by exercising
humanitarian intervention even more innocent
people become victims along with those
groups that might already have been victims of
perpetrators.
Therefore, the question remains: if humanitarian
intervention can be tolerated in particularly
exceptional situations, when the scale and
character of perpetration is extremely abhorrent,
why can not the prosecution of those
protected by immunities for perpetration of
international crimes by courts of other states
be considered as not infringing sovereign equality
of states and thus, make it possible to strip
off immunities from those deserving so due to
their activities, notwithstanding their rank
If there is a risk of political misuse and if
states need more assurance of impartiality
than this can be guaranteed by a national
court of any given state, the Security Council
of the United Nations may be entrusted to make
a decision over criminal leaders and situations
they create and recognize them subjected to
“universal jurisdiction”, as their activities inflict
gross human rights atrocities, causing “threat
to international peace and security”.
Whatever motivation behind and justification
for humanitarian intervention, it may not
be considered to be fitting any of the recognized
concepts of jurisdiction. It can not be
argued that by possibly developing this concept
further and making it a rule of international
law, even if used in very exceptional situations,
it would cause less harm to state sovereignty
than recognition of exercise of universal
jurisdiction over international crimes, disregarding
the status of the perpetrator. The
development of international and human rights
laws evidence the need for progressive development
of universally recognized principles.
Thus, a signal stemming from the emerging
concept of humanitarian intervention, that
mass human rights violations may serve as a
good cause to disregard sovereign equality
of states and intervene in seemingly “domestic”
matters, may lead to a conclusion that at
the current stage of development of the concept
of human rights protection it may perfectly
be possible to subject even the highest ranking
perpetrators of international crimes to universal
jurisdiction along with already existing
possibilities of prosecution, including the prosecution
according to the “complementarity”
principle 63 of the International Criminal Court 64 .
Therefore, the conclusion follows: if there
is a real political will and devotion to the protection
of human beings from atrocities, constituting
international crimes, there will be a
possibility to find way out from a maze of protection
of sovereign immunity and sovereign
equality notions and bring perpetrators of international
crimes to justice as deserved, to
serve the interests of justice, to work as deterrent
for future atrocities and to give survived
victims at least a bit of hope of the future.
V. AFTER ALL THE ABOVE DISCUSSED, WHAT DID
COURT RULE IN THE PINOCHET CASE
Due to the limited format of the essay, the
content of the case 65 will not be considered in
details: a limited discussion of the case will
suffice for the purposes of the essay. The
case has been selected due to the following
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