Historical Perspective: State as the Sole Subject

Under the classical or "Westphalian" model of international law, which dominated from the 17th to the early 20th century, the international legal system was a system created by states, for states. In this traditional view, States were considered the sole and exclusive subjects of international law. This meant that only states possessed international legal personality—the capacity to have rights and obligations under international law and the ability to enforce those rights on the international plane.

In this framework, the individual was not seen as a subject but as an "object" of international law. An individual's rights and protections were entirely derivative of their nationality. International law did not protect individuals directly; it protected them only as citizens of a particular state. If an individual was harmed by a foreign state, they had no personal standing to bring a claim. The injury was seen as an injury to their state of nationality.

This led to the doctrine of diplomatic protection, where a state could, at its discretion, take up the claim of one of its nationals against another state. Key features of this perspective were:

• Individuals had no procedural capacity to bring claims before international tribunals.

• Any rights individuals appeared to have under international law (e.g., in treaties concerning the treatment of aliens) were, in reality, the rights of their home state.

• A state's treatment of its own citizens was considered a matter of purely domestic jurisdiction, shielded from international scrutiny by the principle of state sovereignty.

Essentially, the individual was legally invisible on the international stage, with their fate and legal standing entirely dependent on the will and actions of their home state.

Emergence of the Individual as a Subject

The 20th century, particularly the period following World War II, witnessed a revolutionary transformation in international law. The traditional state-centric model was profoundly challenged, leading to the gradual emergence of the individual as a subject of international law, possessing both rights and procedural capacity.

Post-World War II Human Rights regime

The atrocities of World War II, especially the Holocaust, laid bare the catastrophic failure of the classical system. It became devastatingly clear that leaving the protection of individuals entirely in the hands of their own state could lead to unimaginable suffering. The international community recognized that certain rights are inherent to all human beings and must be protected by international law, regardless of a state's actions.

This paradigm shift was institutionalized through a series of landmark developments:

• The UN Charter (1945): For the first time, a global constituent treaty made the promotion and encouragement of respect for human rights and fundamental freedoms a central purpose of an international organization.

• The Universal Declaration of Human Rights (UDHR) (1948): Although not a legally binding treaty, the UDHR was a monumental achievement that articulated a comprehensive list of civil, political, economic, social, and cultural rights that all individuals possess simply by virtue of being human.

• The International Covenants (1966): The crucial step was the adoption of two legally binding treaties: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). By ratifying these treaties (as India has), states undertake binding legal obligations to respect, protect, and fulfill the rights of individuals within their jurisdiction.

This human rights regime granted rights directly to individuals under international law, fundamentally changing their status from mere objects to bearers of international rights.

Individual's right to petition international bodies

Having rights under international law is meaningful only if there are mechanisms to enforce them. A key development in establishing the individual's legal personality has been the creation of procedures allowing them to bring complaints against states before international bodies.

• UN Human Rights System: The First Optional Protocol to the ICCPR establishes a mechanism for individual petition. An individual who claims that their rights under the ICCPR have been violated by a state party to the Protocol can submit a written communication to the UN Human Rights Committee. The Committee examines the case and issues its "Views," which, while not formally binding like a court judgment, carry significant moral and persuasive authority.

• Regional Human Rights Systems: These systems often provide even stronger enforcement mechanisms. The most advanced is the European Court of Human Rights (ECtHR), where an individual can bring a case directly against a state. The judgments of the ECtHR are legally binding and have led to significant changes in domestic laws and practices across Europe.

By granting individuals this procedural capacity—the right to initiate proceedings on the international plane—international law recognized them as active participants in the legal system, not just passive recipients of its rules.

Individual Responsibility for International Crimes

The other side of legal personality is responsibility. The same historical forces that led to the recognition of individual rights also led to the establishment of individual duties under international law. The principle emerged that individuals could be held personally accountable for committing certain heinous crimes, regardless of the law of their own country or whether they were acting on behalf of a state.

Nuremberg Trials

The trials of high-ranking Nazi officials before the International Military Tribunal (IMT) at Nuremberg after World War II were a watershed moment. The accused leaders argued that they could not be held criminally liable as they were acting as organs of the state, and that only the German state itself could be held responsible.
The Tribunal famously rejected this defense. In its judgment, it articulated a principle that would forever change international law:

"Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."

The Nuremberg Charter and Judgment established that:

• Individuals have duties which transcend the national obligations of obedience.
• The defense of "superior orders" is not a valid excuse if a moral choice was in fact possible.
• An individual who commits a crime under international law cannot be shielded from responsibility by claiming they were acting as a Head of State or government official.

Nuremberg "pierced the corporate veil" of the state and imposed direct criminal responsibility on individuals under international law.

International Criminal Tribunals

The principles established at Nuremberg were revived and institutionalized in the late 20th and early 21st centuries. This development solidified the individual's status as a subject of international law, now bearing direct duties and facing personal liability for their breach.

• Ad Hoc Tribunals: In the 1990s, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These tribunals were created to prosecute individuals responsible for the atrocities committed in those conflicts, reinforcing the precedent that individuals, including political and military leaders, can be held accountable by the international community.

• The International Criminal Court (ICC): The culmination of this trend was the creation of the permanent International Criminal Court (ICC) in 2002. The ICC's entire mandate is to investigate and prosecute individuals for the core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. The very existence of a permanent court with jurisdiction over individuals confirms that they are now firmly established as subjects of international law, possessing a full range of international rights and responsibilities.

Human Rights as Individual Rights

The modern international human rights regime is founded on the principle that every individual, by virtue of their inherent human dignity, possesses certain fundamental rights. These rights are not granted by the state and cannot be taken away by it. They are universal, inalienable, and indivisible. International law establishes these rights and imposes a corresponding duty on states to respect, protect, and fulfill them for all individuals within their jurisdiction.

Civil, Political, Economic, Social, Cultural Rights

The comprehensive body of human rights is often categorized into two broad groups, reflecting the two landmark covenants that give them binding legal force: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). While categorized separately, they are considered interdependent and indivisible.

1. Civil and Political Rights

These are often referred to as "first-generation" rights. They are primarily concerned with protecting the individual's liberty and participation in political life. They place a negative duty on the state, meaning they generally require the state to refrain from interfering with individual freedoms. The ICCPR is the principal treaty codifying these rights.

Key Civil and Political Rights include:

• Right to life (Article 6, ICCPR): The supreme right from which no derogation is permitted.

• Freedom from torture and cruel, inhuman, or degrading treatment or punishment (Article 7, ICCPR).

• Freedom from slavery and forced labour (Article 8, ICCPR).

• Right to liberty and security of person, including freedom from arbitrary arrest and detention (Article 9, ICCPR).

• Right to a fair trial and due process of law (Article 14, ICCPR).

• Freedom of thought, conscience, and religion (Article 18, ICCPR).

• Freedom of opinion and expression (Article 19, ICCPR).

• Right of peaceful assembly (Article 21, ICCPR).

• Freedom of association (Article 22, ICCPR).

• Right to take part in the conduct of public affairs, to vote, and to be elected (Article 25, ICCPR).

2. Economic, Social, and Cultural Rights

These are often called "second-generation" rights. They are concerned with ensuring the individual's social and economic well-being and access to culture. They generally place a positive duty on the state, meaning they require the state to take active steps and use its resources to progressively realize these rights for its population. The ICESCR is the main treaty governing these rights.

Key Economic, Social, and Cultural Rights include:

• Right to work, including the right to just and favourable conditions of work (Articles 6 & 7, ICESCR).

• Right to form and join trade unions (Article 8, ICESCR).

• Right to social security, including social insurance (Article 9, ICESCR).

• Right to an adequate standard of living, including adequate food, clothing, and housing (Article 11, ICESCR).

• Right to the enjoyment of the highest attainable standard of physical and mental health (Article 12, ICESCR).

• Right to education (Articles 13 & 14, ICESCR).

• Right to take part in cultural life, enjoy the benefits of scientific progress, and benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production (Article 15, ICESCR).

India is a party to both the ICCPR and the ICESCR. Many of these international rights have parallels in the Fundamental Rights (Part III) and the Directive Principles of State Policy (Part IV) of the Constitution of India.

International Criminal Responsibility

Just as international law confers rights upon individuals, it also imposes duties. The most significant of these duties is the obligation not to commit the most serious crimes of concern to the international community. A breach of these duties gives rise to individual criminal responsibility, meaning the perpetrator can be personally prosecuted and punished by an international or national court.

Prosecution for war crimes, genocide, crimes against humanity

The principle of individual criminal responsibility is primarily enforced through the prosecution of three core international crimes. These crimes are considered so heinous that they are not just offences against the direct victims, but against all of humanity.

Principles of Liability

International criminal law has developed several principles to ensure that those most responsible are held accountable:

• Command Responsibility: A military commander or civilian superior can be held criminally responsible for crimes committed by their subordinates if they knew or should have known that the crimes were being committed and failed to take reasonable measures to prevent or punish them.

• Irrelevance of Official Capacity: A person's official position, whether as a Head of State, government minister, or military general, does not grant them immunity from prosecution for international crimes.

• No "Superior Orders" Defence (in most cases): An individual cannot generally escape liability by claiming they were just "following orders," especially if the order was to commit a manifestly unlawful act like genocide or torture.

The establishment of this robust framework of individual criminal responsibility marks a profound shift, confirming that individuals are not merely cogs in the state machine but are moral agents with duties under international law, for which they can be held personally accountable.