CYIL 2014

177

DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION…

could be the subject of further negotiation involving the two States concerned, with a

view to resolving the issue.

So, again, the individuals who suffered serious injury by

a conduct of a third State abroad were referred to the inter-state mechanisms which

are out of control of the individuals concerned and can be utilized only on the basis

of the allegedly absolute discrection of the home states of the individuals.

Thus, considering the fact that states which are responsible for serious violations

of human rights of foreign nationals quite often do not provide effective remedy

before their national courts for such violations and are not subject to effective

obligatory procedures on the international level for protecting human rights of the

individuals, any step which might lead to effective remedy for the violations of the

human rights of the individual abroad remains in the hands of the national state of

the individual. What are these possible steps or options of the national state in this

regard, apart from or in addition to the diplomatic protection?

Let us broaden our horizon and consider the options available within the framework

of criminal law. As noted above, states are entitled to “protect” their nationals who were

victims of crimes committed abroad (including those crimes which amount to serious

human rights violations and are committed by officials of the relevant foreign state

on whose territory the national was present)

by exercising passive personal criminal

jurisdiction. If the relevant crime falls within the scope of a convention containing

the regime of obligations

aut dedere aut iudicare

, the home state is entitled to request

extradition of the alleged offenders and the responsible state is either obliged to extradite

the offenders or initiate steps towards possible prosecution; the home state of the

individual is entitled to enforce the implementation of these obligations by using the

mechanism for the dispute settlement contained in these conventions. In addition,

as formulated by the International Court of Justice in its decision in the case of

Questions Concerning the Obligation to Prosecute or Extradite (Belgium v. Senegal)

of 20 July 2012, the obligations

erga omnes partes

contained in the United Nations

Convention against Torture and, logically, in other conventions based on the similar

regime of

aut dedere aut iudicare

obligations, entitle

each

state party – including, of

course, the national state of the victim of the relevant crime – to make a claim for the

cessation of an alleged breach by another State party of the obligations contained in

the relevant convention, “including the obligation to immediately make a preliminary

inquiry into the facts as soon as a suspected torturer is identified in the territory of

the state party and to submit the case to its competent authorities” (if it does not

extradite him).

In the case of these criminal law options, it should be possible,

within the framework or in connection with the relevant criminal proceedings, to

make a claim for civil damages for the injury suffered by the individual as a result

International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy: Greece

intervening), Judgment of 3 February 2012, paras. 98, 101 and 104.

Leaving aside the issue of the immunity of state officials from foreign criminal jurisdiction – this topic

is currently under consideration of the International Law Commission.

It can be added that the options available within the framework of criminal law, unlike diplomatic

protection, do not require the exhaustion of local remedies as a condition for their exercise.