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of the crime concerned. Nevertheless, similarly to diplomatic protection, the states

are only

entitled

to use these criminal law options, having, from the point of view of

international law, “unlimited” discretion in this regard.

Under the currrent state of international law, the role of the state of nationality

of the individual who was a victim of serious human rights violation abroad is

often crucial. It is true that the international law regime of the responsibility of

states allows all other states other than an injured state to invoke the responsibility

of another state if the obligation breached is owed to the international community

as a whole – which is, in principle, the case of serious violations of basic human

rights of an individual.

However, to suppose that states “other than an injured

state” which have no personal or any other “tangible” connection with the case

will, as a rule, actively invoke responsibility of another, responsible state (having

regard to the empirical fact that the state of nationality of the injured individual is

often reluctant to invoke such responsibility even in self-evident cases) is, I dare to

exaggerate a bit, “to engage in a fantasy which, unlike fiction, has no place in legal

reasoning”. It seems that the attention should be focused on the home state of the

injured individual, which is directly and “personally” connected with the injury of

the individual.

What if the international mechanisms described above (as well as possible other

mechanisms on the international plane which could serve, directly or indirectly, as

a remedy in cases when a national was subject to serious human rights violations

abroad) were considered in the context and, in an analogy to the Draft Article 4

proposed by the Special Rapportuer for diplomatic protection and under similar

conditions (i.e. unless the injured person is able to bring a claim for such injury

before a competent international court or tribunal etc.), a state would be obliged to

take any steps reasonably possible to protect its national, i.e. to exercise, or at least

to properly consider the posibility of exercising either diplomatic protection or the

criminal law options decsribed above (possibly using appropriate dispute settlement

mechanisms, if the case is covered by relevant international convention), or at least

making diplomatic representations or any other available steps provided for by

international customary or treaty law which could be used as a remedy protecting

the individual and individual’s interests? Perhaps,

de lege ferenda

, international law

(based on relevant practice and

opinio iuris

of states) could turn all the rights and

“absolute discretions” available to the state of nationality of the injured individual

into some kind of an obligation to use or at least properly consider the possibility

of using the measures or procedures which could reasonably serve as a remedy for

See Article 48(1)(b) of the Draft Articles on the Responsibility of States for Internationally Wrongful

Acts, adopted by the International Law Commission in 2001. It is to be noted that the conditions for

such invocation are rather confusing, since Article 48(3) makes the invocation of the responsibility by

“any state” subject to exhaustion of local remedies and nationality of claims. For detailed analysis of

this problem see,

inter alia

, Annemarieke Vermeer-Künzli, A Matter of Interest: Diplomatic Protection

and State Responsiblity

Erga Omnes

, International & Comparative Law Quarterly, Vol. 56, July 2007

(Issue 3), p. 553

et seq