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INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT
Everyone has a duty to disobey a manifestly unlawful order. Orders to
commit genocide or crimes against humanity are manifestly unlawful;
Individuals are criminally responsible for the international crimes they
commit;
Commanders and other superiors are criminally responsible for
international crimes committed pursuant to their orders and, beyond
that, under the principle of command responsibility discussed in the
next subsection;
Individuals shall be criminally responsible and liable for punishment
for an international crime if the material elements of the crime are
committed with intent and knowledge.
These principles apply to the different types of crimes—ranging from
grave breaches of the Geneva Conventions and violations of the laws or
customs of war and of common article 3, to crimes against humanity and
genocide—for which individual responsibility arises for any person who
planned, instigated, ordered, committed or otherwise aided and abetted
in their planning, preparation or execution. This standard is confirmed by
the Statutes of the International Criminal Tribunal for the former Yugoslavia
and the International Criminal Tribunal for Rwanda and, subsequently, by
the Rome Statute.
The question also arises of whether individuals should be affiliated to a
State entity in order to be criminally responsible for serious violations of
international human rights and humanitarian law. Individual responsibility
with regard to violations of international human rights and humanitarian
law amounting to international crimes can be determined on the basis of
international criminal law. For example, the Convention on the Prevention
and Punishment of the Crime of Genocide stipulates that “[p]ersons
committing genocide or any of the other acts enumerated in article III shall
be punished, whether they are constitutionally responsible rulers, public
officials or private individuals” (art. IV). The Statutes of the above-mentioned
International Criminal Tribunals and the Rome Statute reaffirm this.
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