NON STATE ENTITIES AS SUBJECT OF INTERNATIONAL LAW: AN

ANALYTICAL STUDY

Title of the Subject

6.3 Public International law

Submitted by:

Sanjeev

(SM0116037)

3rd Year, B.A.,LL.B (Hons.)

VIth Semester

Faculty-in-charge

Ms. Gitanjali Ghosh

National Law University and Judicial Academy, Assam

Guwahati
 TABLE OF CONTENTS

TABLE OF STATUTES...........................................................................................................i

TABLE OF ABBREVIATIONS..............................................................................................i

1. INTRODUCTION............................................................................................................2

1.1. Review of the Existing Literature................................................................................2

1.2. Research Questions.....................................................................................................3

1.3. Scope and Objectives..................................................................................................3

1.4. Research Methodology................................................................................................3

2. INDIVIDUALS AS A SUBJECT OF INTERNATIONAL LAW....................................4

3. INTERNATIONAL ORGANISATIONS...........................................................................6

4. SANCTIONS OF THE SECURITY COUNCIL AGAINST INDIVIDUALS................8

4.1 Sanctions against the Taliban and Al-Qaeda....................................................................8

4.2 Sanctions against Individuals in Iraq................................................................................9

5. INTERNATIONAL COURTS AND TRIBUNALS........................................................11

CONCLUSION.......................................................................................................................13

BIBLIOGRAPHY...................................................................................................................iii
 TABLE OF STATUTES

Charter of the United Nations 1945

Statute of Special Court of Sierra Leone 2000

Statute of the International Criminal Tribunal for Rwanda 2010

The Rome Statute 1998

TABLE OF ABBREVIATIONS

1. ICAT International Court Against Terrorism

2. ICC International Criminal Court

3. ICJ International Court of Justice

4. UN United Nations

5. UNSC United Nations Security Council

I
 1. INTRODUCTION

Any entity which is possessing or is capable to possess the international rights and
international duties and which is capable of taking the matter into the international court is
known as the subject of international law. In the earlier times there was only one subject of
the international law and that was the state. Only state was considered as a legal person which
was having the all of rights and duties which were recognized. With time there have been
establishment of the United Nations which is considered as one of the big development.
There were many non-state actors which started to come into the picture with time like
international organisations, etc. and which made it very clear that state is not the single and
only body which is a subject of international law. The researcher has also talked about the
different subjects like individuals, legal personality. This paper also discusses about the
sanctions by the security council on the terrorist organisations and individuals. So, that
individuals can be brought before the International Court of Justice. It is known by all that
terrorism is a worldwide problem and ever since every nation is trying so hard to remove it.
Every nation is fighting separately to terrorism, there have been many attempts but still there
is no legal body which fights with the terrorism globally. As said by the Bogdan Aurescu,
who is minister of foreign affairs of Romania- “Like the black plague in medieval Europe,
terrorism is stalking the modern world, and eradicating it has become a global imperative”.

1.1. Review of the Existing Literature

S.K. Kapoor, INTERNATIONAL LAW AND HUMAN RIGHTS,

Published by Central Law Agency, 15th edition (2010)

S.K. Kapoor’s “International Law and Human Rights” has been very important source of
information for the research work. The book provided the researcher with all the important
basic information for framing the structure of the project work and understanding the concept
of non-state entities as subject of international law. This has been a very useful source for
research work.

S.K. Verma, PUBLIC INTERNATIONAL LAW, Satyam Law

International, 2nd edition (2012)

The second book used as a source for the research work is S.K. Verma’s “Public International
Law” which provided a deep understanding of the different subjects of the international law
by providing a special focus on the non-state entities. The book has proved to be very
important by providing the essential ingredients as required for the research work.

1.2. Research Questions

1. What are the different subjects of International law?

2. Whether sanctions can be imposed by security council on individuals and terrorist

organisations?

3. What are some of the International courts and tribunal?

1.3. Scope and Objectives

The scope of this research project is limited to different sources of International law with
regards to security council imposing sanctions on terrorist organisations and individuals. It
also talks about International Courts and Tribunals.

1. To know about the different subjects of International law.

2. To know about the sanctions imposed by security council on individuals and terrorist
organisations.
3. To know about International courts and tribunals.

1.4. Research Methodology

For the completion of the project the doctrinal method has been used where it will be
concerned with the documental research, as the library was the only source of information put
to use. Internet source also provided substantive information. Here the researcher has
followed the research template given by National Law University, Assam.

Mode of Citation: A uniform style of footnoting style has been used in the project.
 2. INDIVIDUALS AS A SUBJECT OF INTERNATIONAL LAW

Kelsen has said that only individuals all alone are subjects of international law. This came up
in the Nineteenth Century in the different theories given by the positivists which focused on
humans and excluded the state as a subject of international law. Again in Twentieth Century
the focus in international law was given on the individuals. It was in 1907 when the issue was
first raised regarding the prisoners of war in The Hague Conventions. Earlier in the World
War II whenever there was crime against the national peace and national security the practice
was to blame the individuals by the international law. The allied powers came up with the
London charter 1943 and these allied powers blame the individuals for committing the crimes
of war, the crimes committed against the humanity, the crimes committed against the peace.
There was a trial of German leaders after the World War II before the Nuremberg
International Tribunal and where they were found guilty. The Nuremberg Tribunal was
mainly for the individual who were responsible for the crimes of humanity, peace and war.
The Nuremberg Tribunal said that the duties and liabilities are imposed on both the
individuals and the state because the real crime which takes place is committed by the men
and not by the state and if aim is to enforce the provisions of the international law then it can
be done by punishing those individuals who have committed such crimes. The United
Nations and its general assembly supported the decision and the principles of the charter of
Nuremberg Tribunal and hence made them the part of the international law. 1 The genocide
was also considered as a crime under the international law in which individuals will be
responsible and it was supported by the Genocide Convention of 1948. There were two
tribunals formed which were specifically for international war crimes, the one was for the
earlier Yugoslavia and the other one was for Rwanda in 1993 and 1994 respectively. It was
done to prosecute the individuals who were responsible for their acts which violated the
international humanitarian law and which was committed in any of these two countries. The
different situations in the earlier Yugoslavia and Rwanda made it necessary to the formation
of permanent international criminal court and it’s so long now being under the consideration
of forming it. The United Nations Diplomatic Conference in 1988 adopted the Rome statute
of the international criminal court. The court’s jurisdiction in the statute was only limited to
the serious crimes on the international level and these crimes are- crime committed against
the humanity, crime of war, crime committed of aggression, genocide and if any person
commits any of these crimes which is within the jurisdiction then that person should be held

1
Dr. S.K. Kapoor, International Law and Human Rights, 53 (15th edition 2010).
responsible individually and should be punished according to the statute. The international
law also thought about the freedom and human rights of the individuals. There were many
conventions which gave definition of the fundamental freedom and human rights which the
individuals were entitled to get for the honour and safety.2

2
Dr. Wallid Abdulrahim, Subjects of International Law, (April 23, 2019, 2:00 PM),
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/3-subjects-of-international-law.
 3. INTERNATIONAL ORGANISATIONS

States associated with each other is known as international organisation, which is formed by
two or more countries by signing a treaty. Its functions go further than the usual limits of
national boundaries. International organisations and their status in the international law has
raised the questions since Nineteenth Century. International organisations are usually found
as a subject of international law same as the states even when legal personality of states
depends on the rights and duties which the state possesses. The status of the personality is
decided by the conventions between the states, recognising an international organisation as an
international personality is fixed to the signatory states. International organisation is consist
of every type of organisations like the regional, universal functional. Any kind of treaty
which is creating any kind of public international organisation will show the nature of
organisation, power of organisation and purpose of organisation. The treaty will consist of all
the rights, duties, purposes and powers of an international personality of an organisation. It is
the UN charter from where the international legal personality of the UN has been obtained.
International legal personality is having power and is able to do the legal acts for having the
rights and duties so that it is easy to enter in the relation at the international level. There was
also a situation in which the legal capacity of the UN was questioned and it was brought in
the international court of justice. 3 In the reparation case the court gave its opinion which was
advisory, it was said by the court in its opinion that the UN was not a state and hence it was
not consisting of rights and duties similar to a state and further said that UN was an
international person. The UN was having an international personality, the function and power
was very needful and the organisation cannot take them out unless it was having a personality
internationally. The UN is having many powers such as signing an agreement with a state
which is a member and also with the other organisations internally. If seen in the real life the
international organisations have used the legal power in many different ways. With the help
of this treaties have been concluded, creation of military forces has taken place, there have
been conferences internationally and the claims have been brought in oppose of the different
states.4 When any entity becomes a state it is known as international legal person and further
it acquires international legal personality. It will be right to say that personality is derived by
the non-state actors whereas states have the real personality. The reason for this is because
states become the international legal person the very moment they are states. While others get

3
S.K. Verma, Public International Law, 96, 97 (2nd edition 2012).
4
Dr. Wallid Abdulrahim, Subjects of International Law, (April 25, 2019, 6:00 PM),
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/3-subjects-of-international-law.
their personality from different means. Like any kind of international organisations, etc.
Treaty is another important factor which forms the international legal relations. Treaty
making is known as the very important feature of any international legal personality.
According to the principle only states which are sovereign and which are qualified entity are
having international legal personality. The legal personality is further divided in two parts
which are objective legal personality and subjective legal personality. Objective legal
personality says that if someone doesn’t know about your existence, you don’t cease to exist.
Even if you are not a signatory to the UN, that doesn’t mean UN doesn’t exist. Whether you
are a member or not, UN exists and the countries have to avoid use of war. While subjective
legal personality says that if a country is not a signatory to an organisation then it does not
exist for that country.5

5
International Legal Personality, (April 23, 2019, 5:00 PM), https://www.lawteacher.net/free-law-
essays/international-law/international-legal-personality.php.
 4. SANCTIONS OF THE SECURITY COUNCIL AGAINST INDIVIDUALS

Imposing sanctions on the individuals is not something new to talk about. There has been
discussion on it for a long time now. It came up after the world war 2 when the individuals
were held liable for the act rather than the state. In the tribunals of Tokyo and Nuremberg the
sanctions were imposed on the individuals for the crimes on international level. There was an
increase in the use of sanctions with the end of cold war. If a sanction is made against any
individual, then it will need the support from the member states. The decisions which are
given by the security council is binding to the states and not the individuals. The sanctions
imposed by the security council are applied by the states which are member. This is a
common concept of action against the individuals which is indirect in the international
organisations.6 There is also an exception in which sanctions are imposed by the EC and
these are binding on individuals.

4.1 Sanctions against the Taliban and Al-Qaeda

During 1990 the most part of Afghanistan was taken under control by the Taliban. They were
accused for giving shelters to the terrorists. The terrorist organisation named as Al-Qaida
which belonged to Usama Bin Laden was suspected to be responsible for many attacks and
mainly against United States of America. Two United States embassies were attacked in
august 1998 by the organisation. The embassies attacked were embassy of Kenya and
embassy of Tanzania. The attacks were condemned by the security council it said the Taliban
to stop providing home and training to the terrorists. The security council in the resolution
also showed its intentions to impose the sanctions on it. The security council said that Taliban
has created a threat to the peace and security internationally with the refusal for bringing the
terrorists to the court and further stopping the training of the terrorists. The security council
once again asked the Taliban to stop providing the shelter and training to the terrorists and
help them in bringing justice to everyone. 7 Further security council asked to handover the
Usama Bin Laden to any country where he could be produced in court and further delivering
to him. Security council went ahead with imposing sanctions for creating pressure. The
sanctions made by security council were of financial measures regarding the assets of the
Taliban. It was a year by now and Taliban did not agree with any of the demands as asked by
the security council. The security council further targeted the individuals who were part and

6
Noah Birkhauser, Sanctions of the Security Council Against Individuals-Some Human Rights Problems, (June
10, 2019, 10:05 AM), https://esil-sedi.eu/wp-content/uploads/2018/04/Birkhauser.pdf.
7
Ibid.
around the AL-Qaeda to make sanctions stronger. A resolution was passed by the security
council in 1333 in which the council said that every state had to freeze the funds and any kind
of asset related with the Usama Bin Laden. Further any individual and entities related with
him in any manner should be freeze. These sanctions made by security council were not
disclosed in the public discussion. The security council came up with a simple system with
the anti-terrorist measures which left out the suspected terrorists to the states of UN. There
was an invasion made by the United States of America with other countries in the
Afghanistan but mission got failed neither Usama Bin Laden was arrested neither head of
Taliban. The armed forces of United States of America were posted in Afghanistan in the
name of ‘Operation Enduring Freedom’. The purpose of the operation was to capture the
terrorists and the head of Taliban.8 The security council in January 2002 said that the
terrorism on the international level is a threat to peace and security internationally. So, in
response the security council added one more sanction of arms embargo and travel
restrictions with the earlier financial sanction. This sanction by security council was first
sanction which was not related with the territory. From here on every state was restricted to
allow entry of the restricted person in their country. Any kind of purchase, sell or transfer
related with arms to the restricted person was banned. According to the list 143 individuals
were part of Taliban and 179 individuals were part of Al-Qaeda.

4.2 Sanctions against Individuals in Iraq

Throughout 1990’s, Security Council’s sanctions against Iraq were in picture. For tolerating
weapons inspections in Iraq, the Iraqi Government was pressurized by the sanctions after the
Gulf War 1991. The Security Council witnessed various incidents in which hindrance was
created by Iraq in conducting inspections. Restrictions were imposed on travel by the Council
on the officials who hindered the weapons inspections in 1997. Travel restrictions were the
only sanctions imposed on the individuals during the period. Iraq was then invaded by United
States including other states in March, 2003 and the invasion was done without a United
Nations mandate.9 New sanctions were then imposed by Security Council by lifting the
existing sanctions after the combat operations end officially. The Council observed that Iraq’s
situation was improved but it was still a menace to international security and peace. For
dealing with this threat, the Council passed an order in which all states were ordered to freeze
funds, economic resources & financial assets of entities and persons related with the prior

8
Supra Note 6.
9
Ibid.
regime and the same funds, resources & assets were to be transferred to newly created Iraq’s
Development Fund. The designation of affected entities and persons was delegated to the
sanctions committee by the Council in accordance with resolution 661.The committee
provided an updated list in June, 2004 which contained 206 entities along with 82 persons.
The committee also followed the guidelines for its work conduct; still de-listing of entities
and persons was not done. An entity and a person who requested de-listing of the committee
was put on committee’s assets-freeze lists after transmission of letter of lawyers of the entity
and the person by Switzerland. The committee asked for justification and information
relevant for supporting the request after discussing the request amongst the committee.
Neither any entity nor any person has been de-listed so far. For implementation of measures
under Resolution 1483, Switzerland amended the Republic of Iraq vis-à-vis its economic
measures regulation (hereinafter ‘Iraq Regulation’). The exemptions to prevent freezing of
accounts for hardship cases and to protect Swiss interests are provided in the Iraq Regulation.
Transfer to Development Fund and Iraqi funds freezing procedures are managed by
Switzerland through second regulation (hereinafter ‘Freezing Regulation’). A 30 day period
is given to the designated party by the Swiss authorities to comment on freezing decision,
before the freezing order issuance.10 A hardship can then be demonstrated by the designated
party and then the designated party can apply for an exemption. Further, an appeal to the
federal court of Switzerland can be made by the designated party. Switzerland violates
Council’s resolution by providing such exemptions and procedures. Switzerland justifies the
legal remedies provided by it with European, Swiss & international human rights obligations.
Right of access to a court is especially referred by Switzerland. The definite character of the
financial sanctions is the reason why Switzerland provides for an appeal in the case of Iraq
only, to the federal court: the affected individuals lose their property de facto after the frozen
funds are transferred to Iraq’s Development Fund.

10
Supra Note 6.
 5. INTERNATIONAL COURTS AND TRIBUNALS

If any crime has been committed and suspects have been arrested, then it is should be taken
care of that the conviction should be in rightful manner. There should be separate forums in
which the suspects should be prosecuted and tried and if convicted then they should be
punished. Another point to talk about is that where to imprison these terrorists. The situation
will be serious and which should only be dealt with the special tribunal or by the international
court. The another reason to dealt them separately is that because every nation and its legal
system does not have the mechanism to deal such types of crimes. This was the only reason
which led Trinidad and Tobago for the formation of the ICC because the drug offences were
so serious in nature and they were not having any mechanism to handle such situations. It is
true that such tribunals and international courts are so costly and also takes a lot of time to be
in proper working condition but they have many benefits as well. These benefits consist of
properly handling the serious and complex situations and also giving proper justice to the
victims which was not given by the national machinery. It doesn’t mean that these tribunals
will never have any kind of problems or difficulties they also face problems and difficulties
like the national courts. For example, the states refused to give the evidences and other
important documents of the suspects even when these states were parties to the Rome Statute
and hence they were under the obligation to help the International Criminal Court in every
manner as possible.

Till date there is only one “International tribunal which is having the express jurisdiction over
the terrorism related offences is the Special Tribunal for Lebanon (created by a Chapter VII
Security Council Resolution, UNSC Resolution 1757(2007))”. The reason for its formation
was basically one terrorist incident and the tribunal majorly works on the Lebanese criminal
law. There are many other international tribunals and courts who have made some new
provisions regarding the offences which are in one way or another is related to the terrorism.
For example- “Statute of the International Criminal Tribunal for Rwanda (article 4(d)), the
Statute of the Special Court for Sierra Leone (article 3(d)), and the law on establishment of
the extraordinary chambers in the courts of Cambodia (article 8)”. The treaty of Rome Statue
which led to the formation of International Criminal Court it does not include the offences
related to terrorism no matter how many times states have tried for their inclusion in it. The
preparatory committee in its opinion said that the Rome Statute should be limited to the
international crimes on which it is agreed upon and which comes under its jurisdiction. The
jurisdiction of the statute in not available for all the crimes, it is only available for the crimes
like genocide, rimes of war, crimes of aggression, crimes which are done against the
humanity. On 15th December 2017 the Rome Statute was given the jurisdiction over the
crimes of aggression and it will come in force from the date 17th July 2018. We can say that it
is at least possible to put the offences related to crimes in the Rome Statute by extending its
jurisdiction. But we should not expect it in the coming years, it will take a lot of time. The
treaties which are important and necessary will always be followed by the problems and
disagreements and it will need a lot of time so that there can be some consensus. For
example, it took around twenty years for the activation of the crime of aggression and
moreover it was already included in the jurisdiction scope of the statute. There are also many
other problems which are affecting the ICC which are recent withdrawal and the political
factors. There are threats of withdrawing from the statute. There was a withdrawal from the
statute by the Burundi. Any International court and tribunal which is having the express
jurisdiction cannot be stopped from trying by mere exclusion of offences related to terrorism.
The only condition is that the nature and gravity of the offence should satisfy the jurisdiction
of the courts and tribunals. The crimes done against the humanity, the crimes of the war and
the crimes of the genocide covers a very large circle.11

11
Criminal Justice Responses to Terrorism, (April 27, 2019, 2:00 PM),
http://www.unodc.org/e4j/en/terrorism/module-4/key-issues/international-courts-and-tribunals.html.
 CONCLUSION

When talking about sanctions imposed by security council against the individuals and entities
which are directly or indirectly connected with Taliban and Al-Qaeda the security council
don’t expect any kind of behaviour. It simply says someone committing the crime of
terrorism is an threat to the peace and security internationally and to combat with such
situation it became necessary to take some actions against the individuals. If a court like
International Court Against Terrorism is formed, it will definitely face the difficulties and
different types of hurdles and the major difficulty will be of having no consensus regarding
which act will be considered as a terrorist act or a proper definition of the terrorism. If we
want to establish International Court Against Terrorism, then we will need support from the
society. This society will consist of academician, educated part of the society, and the general
public. We have to tell society the different benefits of it and how it will result in the safety of
the whole nation. To be honest finding such support is not easy when there are certain
economic situation and many other hurdles in one way or another but also it is not
impossible. I am of belief that any time soon there will something legal and so powerful and
indispensable which will help in fighting the terrorism globally.
 BIBLIOGRAPHY

PRIMARY SOURCES

Charter of the United Nations 1945

Statute of Special Court of Sierra Leone 2000

Statute of the International Criminal Tribunal for Rwanda 2010

The Rome Statute 1998

SECONDARY SOURCES

Books

S.K. Kapoor, International Law and Human Rights

S.K. Verma, Public International Law

Internet Websites

Bogdan Aurescu, Does the world need an International Court Against Terrorism,
https://www.weforum.org/agenda/2015/11/does-the-world-need-an-international-court-
against-terrorism

Criminal Justice response to terrorism, http://www.unodc.org/e4j/en/terrorism/module-4/key-

issues/international-courts-and-tribunals.html

Dr. Walid Abdulrahim, Professor of Law, Subjects of International Law,

https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/3-subjects-of-
international-law

Noah Birkhauser, Sanctions of the Security Council Against Individuals-Some Human Rights
Problems, https://esil-sedi.eu/wp-content/uploads/2018/04/Birkhauser.pdf