International law, a term coined by Jeremy Bentham in 1971, is the set of rules generally regarded and accepted as binding in relations between states and nations. In traditional aspects, States are the sole actors at the international level and are thus considered as principal subjects of international law.
International law initially did not recognize the rights and obligations of individuals. States regarded individuals as objects and not as subjects under the positivist (such as Bentham, Austin) interpretation of International law without international legal rights and duties. However, after the two World wars, the international community opined the need and possibility of recognizing an individual’s legal responsibility under international law and to make them subjects of international law in some respect.
Evolution of the Status of Individual in International Law
The evolution of international law in the 20th century, and particularly after World War II, has caused a considerable increase in the recognition of humanitarian values in the process of the creation of international legal rules. It was recognized after the Nuremberg Trial of 1945 against Nazis. The protection of both individuals and groups from any kind of violence, guaranteeing their freedom and dignity, has become one of the essential concerns of the international community.
As per the UN Charter, the respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, is one of its organizational objectives.' Moreover, a concept of Public and Private International law later emerged. Public international law went to international matters affecting states, while private international law was concerned with international matters between individuals.
Rights of Individuals recognized under the International Agreements
There are some international agreements that recognise the existence of individuals under its rules. Some of them are:
International Covenant on Civil and Political Rights: The ICCPR recognizes the inherent dignity of each individual and undertakes to promote conditions within states to allow the enjoyment of civil and political rights. Article 18 of the convention provides every individual, the right to freedom of thought, conscience, and religion.
International Covenant on Economic, Social, and Cultural Rights: Article 6 of ICESCR recognizes the right of individuals to access the opportunity to gain their living by work and to safeguard economic and political freedoms of the individual.
European Convention for the Protection of Human Rights and Fundamental Freedoms: The European Convention, implemented in 1950 provides that party states shall secure to everyone within their jurisdiction certain rights and freedoms. These include the right to life (Article 2), freedom from torture or inhumane or degrading punishment, freedom from slavery or servitude, the right to liberty (Article 5) and security of person, the right to a fair trial (Article 6), etc.
Universal Declaration of Human Rights: Nuremberg demonstrated that the protection of human rights was very important and it could not be left entirely to states to ensure them. Consequently, the United Nations in 1948 adopted the Universal Declaration of Human Rights to include rights such as rights to life (Article 3), liberty, the security of person, and equal protection of the law. However, it is free for states to decide whether or not to apply international human rights law in their domestic courts.
International Lawmaking and the Individual
Indigenous peoples had ceased to be sole ‘objects’ of international law but had become active participants ‘in an extensive multilateral dialogue that has engaged states, non-governmental organizations, and independent experts, a session organised by human rights organs of international institutions. Such participation includes the ILO Convention of 1959 which identified members of indigenous peoples and tribal populations as requiring special protection of their human rights. An Individual’s competency to stand before judicial and quasi-judicial international institutions for the protection of his rights must be recognized properly.
Direct Applicability of International Law to Individuals
The issue of whether the rules of international law can directly govern the rights and duties of individuals has been one of the important considerations for answering the question of whether an individual be subjected under the provision of international law. In this respect, it has been widely argued that the rules of international treaties, which provide for the rights for individuals, are directly applicable to them provided that the concerned State from where the citizen belongs has ratified the treaty.
Recognising the fact that every nation-states are sovereign, the primary way in which international law is enforced is when states simply enforce it internally in accordance with the Transformative theory which states that international law cannot be applied by municipal courts unless they pass through the process of transformation and be specifically enforced by the municipal court of law and its Parliament.
Individual Criminal Responsibility under International Law
Prior to Nuremberg Trials in 1945 conducted for the trial of Nazis, individual criminal responsibility was not commonly used as states were held liable for breaches of international law. The tragic incidents of mass killings during the 20th century prompted the international community to recognize that individuals can be criminally responsible directly under international law and to work for the establishment of an international criminal court having jurisdiction over international crimes committed by individuals.
The goal is to maintain peace and harmony in different States and to prevent such incidents which directly or indirectly affect global peace. This principle has been inserted in the Preamble of the Rome Statute of 1998, where it affirms that the most serious crimes of concern to the international community as a whole must not go unpunished and that the International Criminal Court has a duty to punish such perpetrators. Under the Rome Statute of Individual criminal responsibility, section 25 of ICC talks about individual criminal responsibility.
Instances where Individuals can be held liable under International Law
Genocide: Prior to the Nuremberg incident, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, which criminalized genocide whether it was committed by individuals or states. It includes participation as well. There are two factors for the determination of guilty for the offense of genocide, the actus reus which is the physical action of genocide, and the dolus specialis which is the intention to harm or destroy a ethnic group based on their nationality, religion, ethnicity or race. The recent cases include the prosecution of Dominic Ongwen convicted for genocide in the Uganda region.
Piracy: States under the Convention on the High Seas and Article 110 of the United Nations Convention on the Law of Sea are authorized to seize a pirate ship and arrest the persons involved. The country whose forces carry out a seizure may decide the penalties to be imposed on the pirates.
While it is true that international law frequently concerns states per se, oftentimes international law directly involves individuals. Gradually, International law is recognizing the rights and obligations of individuals significantly helping in raising concern and values of Humanitarian grounds.
In general, the modern concept of international law on which many legal scholars and jurists have agreed establishes that the individual has legally protected interests, can perform legally acknowledged acts, can enjoy rights under municipal law deriving from international law. It has been nowhere written that the individual cannot be a “subject” of international law.