Today we have got a presentation about the International Court of Justice from Judge Kenneth Keith. And I have asked the same question I have asked Judge Abdul G. Koroma last time. Of course I have received again a diplomatic answer. Here comes my question:
My question is related to your essay “Protecting Human Rights in a Time of Terror” and the judgment this morning in the case Germany v. Italy.
There are two courts in the world where individuals can sue states: The Inter-American and the European Court of Human Rights. But they are exceptions. Most of the individuals in the world cannot sue most of the states of the world. For instance Khalid El-Masri cannot sue the US in any international courts. El-Masri is a German citizen, kidnapped by US, flown to Afghanistan, raped and tortured for several months, then released because it was a case of mistaken identity.
The fact that individuals cannot sue states is not accidental. There were several propositions to make that possible, but they were rejected by the powerful states. I’ll give only three examples.
(1) The Advisory Committee of Jurists who drafted the statute of the Permanent Court of Justice received several propositions from states to give individuals standing before the court. But the powerful states rejected the idea.
(2) Australia has fought for 5 years long to create an International Court of Human Rights, during the negotiations on the Universal Declaration of Human Rights. Australia was so serious about it, that it even produced a statute for the Court. However, the veto powers rejected this proposal.
(3) Judge Hersch Lauterpacht was convinced by Australia and developed this idea in minute details in his book about human rights.
Here comes my question: Is there a good reason why individuals cannot sue states in international courts, or is it because the powerful states want to kill, torture and rape with impunity, in order to achieve their goals in the world?