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UC Law SF International Law Review

Abstract

Since the adoption of the UDHR in 1948, it has become clear that state responsibility for human rights violations ought to be complemented by perpetrators’ individual responsibility under criminal and civil law. The concept of individual responsibility suggests that criminal liability is the “natural” corollary of conduct considered to be a violation of human rights. Even if such criminal liability does not, for whatever reason, arise under national law, this is certainly the outcome under international law. The extent to which this concept is applicable to all violations of human rights involves an examination of the legal basis of human rights violations – contained in human rights treaties – to assess if they can substantiate a degree of criminal liability. In the opinion of this author, the concept of individual responsibility is inextricably linked to the evolving nature of the status of the physical person in international law. International human rights law has played a prominent role in this regard, particularly through the establishment of individual complaint mechanisms and the granting of locus standi to aggrieved persons. The paper argues that, while until the late 2010s there was no doubt about the application of individual responsibility for serious violations of human rights, a significant amount of selective impunity has culminated in extreme policies seeking to terminate institutions such as the International Criminal Court (ICC) or the very customary practice of universal jurisdiction. The Israeli genocide in Gaza and Russia’s invasion and crimes against humanity challenge a significant body of law on international criminal responsibility, although in different ways.

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