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JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION
the world’s first genocide trial based on United Nations policy, as well as the first trial
of a head of government on a human rights related charge.
The long-lasting horror decimated the whole population, so that only the new
generation was able, after 22 years, to punish the KR functionaries still living (Pol Pot
died in 1998, Ieng Sary in 2013) – with the help of the United Nations, moreover,
which, by treaty, provided the organization and form of this new genocide trial.42
Cambodia invited international participation due to the weakness of the
Cambodian legal system and the international nature of the crimes. The agreement
with the UN details how the international community will assist and participate in
the Extraordinary Chambes. This special new court is a Cambodian domestic court
(ECCC) with international participation that will apply international standards.43
The ability and willingness of the holder of territorial sovereignty (the State which
has jurisdiction over them) to punish pertinent perpetrators of a crime under
international law is a typical feature of a peremptory norm – thus also that norm
prohibiting committing genocide.44
At the present time the violators of this concerned prohibition are the radical
Islamic irregular forces of the so-called Islamic State of Iraq and the Levant (ISIL),45
which are mostly fighting in Syria and Iraq (genocide of the Yazidis); in Nigeria
they are called Boko Haram,46 and in Somalia al-Shabaab.47 These Islamist terrorist
movements have a part of their territory in the countries named under proper
control, and, in relation to the population living there, they are responsible for the
genocidal mistreatment of heterodox persons (that is, ‘convert to Islam or die’) and
for civilian casualties in general.
2.2.2 Crimes against humanity
Up to now, withinChapter 2 (et supra), we have dealt with the human being’s inherent
right to life as well as his rights to physical and psychical integrity. Now attention will
be paid rather to human dignity, including humiliation or degradation of a human
being. In respect to this the Rome Statute of the International Criminal Court is rich
42 See Here the text of Agreement between the United
Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of
crimes committed during the period of Democratic Kampuchea (Phnom Penh, 6 June 2003).
43 See
44 About this principle see The
principle of complementarity respects also the Rome Statute of the International Criminal Court,
UNTS, vol. 2187, p. 3; Art. 17 – Issues of admissibility (1). “(…) the Court shall determine that a case
is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(…)”.
45 See http://
46 See
47 See (militant_group).