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Statement by Professor Hitomi Takemura

I am honoured to have contributed to Volume 3 of ‘Historical Origins of International Criminal Law’. The fact-findings on armed conflicts and their aftermath have been controversial work. For instance, some of the newly selected Memory of the World heritages by United Nations Educational, Scientific, and Cultural Organization (‘UNESCO’) were challenged by certain countries for their historical value. Therefore, a project like the Historical Origins of International Criminal Law (‘HOICL’) research project is especially important for enhancing mutual understanding and clarifying the different historical perspectives on armed conflicts, especially the world wars. Has the whole concept of individualization of international crimes served to enhance reconciliation of peoples by way of blaming individuals rather than criminalizing and punishing the country concerned? If so and if legal scholars embark on the project of the historical origins of international criminal law, why does the international community not support the notion of individualization of guilt rather than stigmatize a country or sometimes curse history?

Although it sounds like a matter of semantics, memory may be a personal subject as well as a bearer of responsibility for atrocities. If an international organization tries to endorse a contested historical event as a memory of heritage, the memory suddenly becomes very public and can cause strong opposition from certain countries.

My chapter deals with the defence of superior orders which used to be a debated problem in international criminal law. However, the debate seems to have been settled, at least in the realm of international criminal jurisdiction. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) claimed that individuals have a duty to disobey manifestly illegal orders under international law in tandem with the restriction of the defence of superior orders in international criminal law. Today, the Rome Statute appears to adopt this restricted view of the defence of superior orders, that is, the so-called principle of manifest illegality.

More and more, as international criminal law recognizes individual criminal responsibility and imposes on the individual the duty to disobey manifestly illegal orders, claims of selective conscientious objection are recently arising. The issue of selective conscientious objectors who oppose a particular armed conflict, such as an armed conflict without international support, is also a key feature of the end of the Cold War and the disappearance of traditional inter-state wars.

There has been an emergence of state practices concerning the individual’s right to refuse to contribute to manifestly illegal wars and the issue of the duty of the state to protect its nationals from participating in a manifestly unlawful war under international law. These state practices may endorse an emerging vertical relationship between individuals and their duties under international law by means of underscoring the importance of human dignity as an overarching imperative for states.

International society is becoming increasingly individual-centric. Thus, a vertical relationship is developing between international society and individuals. The exercise of state sovereignty is constantly and thoroughly checked through the lenses of international criminal law and international human rights law by international society, in general, or treaty bodies, in particular. Individuals are becoming increasingly visible, even in the field of international law, though they have traditionally been covered under the veil of state sovereignty. The defence of superior orders teaches human beings a fundamental lesson about fostering the ability to think on their own about complex issues of international law, such as the legality of the use of force.

Thank you very much and congratulations on the momentous event of publishing the multi-volume series ‘Historical Origins of International Criminal Law’. 

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