I would say definitly not, because article 53 of the Vienna Convention on the Law of Treaties defines an imperative norm of general international law as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted". So, even if a large number ratified the Rome Statute, this seems not to be sufficient to conclude to the existence of a norm of jus cogens.

As a peace and human rights activist since the late 1970s, I see a total breakdown on this vital issue that Srinivasan has raised. There is a kind of lawlessness and total anarchy! While it is good to see that the faulty system is working for political sudras like Charles Taylor, what about the criminal brahmins, genocidal maniacs, like George W. Bush, Putin and others who can get away from their crimes against humanity? Why are these worse murderers free to roam about and lecture us about human rights? Why can't we have trial for them?

The UNSC is a prime example of what is wrong with our world order. I see no democracy - why should we have nuclear brahmins with Veto Powers handicapping everything? It is this absence of morality at the top world body which lets small mass murderers like Taylor convicted but allows big ones to escape justice. It is unfair and unsustainable in the long run.

Surely not, given that not all countries are signatories to the Rome Statute of the International Criminal Court, a number of those who have signed have not ratified e.g., Russia, and some have since advised that they no longer intend to become states parties and, as such, have no legal obligations arising from it e.g., USA. It is perhaps relevant that the Court can automatically exercise jurisdiction over crimes committed on the territory of a State Party or by a national of a State Party. States parties must co-operate with the Court, including surrendering suspects when requested to do so by the Court. The Court is a major step forward for global justice, but individual accountability as an inviolable norm, clearly not.

I agree with Franklin. While the large number of ratifications may qualify this as an emerging norm, it is a long way from achieving jus cogens status. Over 70 states have not ratified the Rome Statute (over a third of the states in the world) and even of those that have ratified, a number have reservations that by themselves might call into question the peremptory nature of this norm.

A jus cogens norm is not dependent on focusing solely on the Rome Statute ratifications. The Nuremberg law was ratified by the UN General Assembly in 1948, and since then head of state accountability has been accepted by a variety of courts including the International Tribunal for the former Yugoslavia and the international Criminal Tribunal for Rwanda (both created by the Security Council). Other hybrid courts recognizing this form of liability include the Extraordinary Chambers of the Courts of Cambodia. Also the Pinochet decision out of the UK as well as Spain's extradition request and Chile's subsequent stripping of Pinochet of immunity. And while the US has not ratified the ICC it has tacitly approved liability for former heads of state in several instances, including the indictment of Bashir in Sudan, and providing evidence in the Pinochet case. While I have not made an exhaustive study of this specific issue I very much suspect that loss of head of state immunity has become a jus cogens principle of international customary law.

The answer is no, and the proof is two words: Uhuru Kenyatta. Bashir in Sudan was one thing, but Kenyatta's case has pretty much guaranteed that "individual accountability" is going to be case-by-case and certainly not "inviolable"! (not even close). I mean, no norm is inviolable, but on the spectrum this one is far, far away. I would say it's pretty easily violable.

Good points by all the contributors. Alan and Adam above seem to be at two ends of an imaginary thread called emerging world opinion that wants heads of states held responsible for rights violations. While the 'precedents' that are available till now clearly indicate the trend towards accountability as a principle, what Adam said and Habib above meant point towards the influence of international politics on the issue.

It may be true that international politics is not based on ethics but no politics can survive without ethics too. A politics alienated from ethics will become oppressive and eventually lead to the type of dictatorships that violate human rights with impunity. The solution to this paradox is perhaps educating our political leaders on humanitarian and human rights laws and their mandates. The most fundamental issue in accountability is the strength of national leadership/citizens' conviction that such violations need to be prosecuted. The case where Sierra Leone and Cambodia wrote the ICC asking for setting up of special chambers is a good example of such national consciousness and convictions.

For those who are following this thread, I have some thing to submit. There are three fundamental elements to my question:

1. Acceptability of rights violations by heads/instruments of state by international community. Like for example, whatever is happening in South Sudan and Nigeria, we will simply tut-tut our tongues and leave the hapless victims to their fate, because "sovereignty" is paramount?

2. If not acceptable, how should we work towards making the 'accountability of heads of state' into a jus cogens norm? [Given that the vagaries of international politics will continue to play its role]

I do agree that the definition of 'custom' would hold the decisions on Rwanda/Yugoslavia/Sierra Leone not old enough to qualify as jus cogens but instances of disregard for human life and dignity by state/instruments of state are old enough to merit a re-look at some of the 'neys' so emphatically sounded till now.

Opinions please.

I would say that it may signal the emmergence of a peremptory norm, but to say it has become a jus cogens norm would be too much. And as professor Myres MacDougal lectured, we cannot depend only on ratification to say that a subject represents the will of a State. It can be used internal legislations, oficial repports and so on. It can indicate a trend, but not yet a reality. I am soon to publish an article about the material requirements on the jus cogens norms for its recognition. Hope to gave translated everything right, cause the tablet keep translating all the words back to portuguese, sorry for eventual mistakes.

Quite true, Bruno Dias, for that to become jus cogens I presume the most fundamental requirement would be acceptance by many nations over a period of time. Let us take the following factors:

1. Nuremburg was in 1945. 69 years have passed and perhaps "over a period of time" clause may become satisfied.

2. (i) Apart from the Allied Countries of WW II, we have Spain and Britain accepting the norm through domestic legislative/legal action in Pinochet case

(ii) We have Milosevic and JP Akayesu cases of ICTY and ICTR when Heads of State (HoS) have been indicted.

(iii) We have HoS of Ivory Coast and Cambodia (my apologies for using their older names) writing to ICC/UN for convening Special Chambers for prosecuting their former HoS. Both Chambers are in progress

(iv) Quite interestingly, we have Bangladesh convening its own Chamber and prosecuting yesteryear's high leaders for offenses similar to ICC.

3. Considering the precedence quoted above, beyond mere ratifications by States, much legitimate State Action on the principle of apportioning responsibility for violations on HoS have happened. That should satisfy the need for the second clause for jus cogens - customary State practice (acceptance). At least, that is what my interpretation is.

Would be glad to receive comments. Have a great day!!

Greetings Professor Srinivasan. As the factors go:

1 - I agree with you in the matter of of time being, the 69 years that separate the present from the Nuremberg Trials are a substantial amount of time. Nevertheless, our legal system, and by that I refer to the international one, is quite slow in matter of recognition of norms that affect the liberty of States, and its representatives. Since we have in many books, as in Orakhelashvili's or in Hannikainen's, the recognition of the immunity of the representatives as a peremptory norm of international law.

2 - Regarding to the acceptance of States, the number that is necessary for the recognition of a peremptory norm, is yet to be defined, and such definition is not to be achieved soon. I agree that it should be usefull to have representatives of different legal systems, and representatives of all continents, so it would be diminished the debate over the eurocentration that is well used by some. I think the peremptory norms should be used as a protective system to the International Community as well as to human beings, and in the cases presented by you, the crimes to be judged by the Roman Statute, it is most present.

3 - It is set to motion the engine and it's parts, but I still do not know if it already set to be enforced. Cause untill the date none of the customary norms used in the international relations is recognized as peremptory, as the requirements ask for. Undoubtedly, someday, it is gonna be recognized by States, beyond the conference meetings held in Viena, a group of norms, or at least the existence of some norms as peremptory. It is set as an example the Human Rights legislations, that are recognized as important and fundamental for State pratice, but none of them recognized it as peremptory in the legal text, only on arguments during the conference, and yet, not by all.

But in our field the changes are set in academy long before they reach the reality of politics.

Glad to have recieved an answer. Hope to continue the conversation, that cannot be held at the University, since as for the moment, I am the only one with a background in International Law. Have a great day also!

Dear Bruno,

I agree with the contents of your reply entirely. While we do recognize that between acceptance of a principle and accepting it as an international legal norm even centuries could pass by. A good example would be the whole body of Geneva Conventions (GC) themselves. Every country in the world is at least signatory to the GC. However, their implementation of its principles in practice, even in domestic armed conflicts is far from satisfactory. Penal action for its violations is still a far cry- one look at Syria is all we have to take to appreciate this.

Immunity that you mentioned is actually being read as "sovereignty" and therefore there are serious problems in implementation. However, I am of the view that unless a conscientious and consistent debate is kept up in the academia, political realities will continue to favor violations more, than compliance.

Have a good day!!

Good Morning Srinivasan,

Agreed. And let's carry on the debate so we can keep the flame in academic fora and incite it to the political level.

Dear Goran Simic,

I agree with you that the responsibility is not merely of one individual but that of the whole society. Certain values or norms that a society upholds may appear to sanction violence. But, there is no sanction for senseless, racially motivated violence in any society...at least that is what I would like to presume. 

Instances in certain North African countries like Sudan where one tribe set about destroying the other by raping women, killing children and adults are instances that were engineered for political purposes. Even the Nazi crimes against Jews were politically engineered. In such cases, if we do not apportion individual responsibility and try to pin the blame on entire society, we would perhaps end up branding a whole society as "violent" which would in turn result in counter actions with unfortunate consequences.

What is your opinion on this?

Have a great day.