State responsibility an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.629 The Court was there concerned to contrast the position of an injured State in the context of diplomatic protection with the position of all States in respect of the breach of an obligation towards the international community as a whole. Although no such obligation was at stake in that case, the Court’s statement clearly indicates that for the purposes of State responsibility certain obligations are owed to the international community as a whole, and that by reason of “the importance of the rights involved” all States have a legal interest in their protection. (3) On a number of subsequent occasions the Court has taken the opportunity to affirm the notion of obligations to the international community as a whole, although it has been cautious in applying it. In the East Timor case, the Court said that “Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable”.630 At the preliminary objections stage of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, it stated that “the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes”:631 this finding contributed to its conclusion that its temporal jurisdiction over the claim was not limited to the time after which the parties became bound by the Convention. (4) A closely related development is the recognition of the concept of peremptory norms of international law in articles 53 and 64 of the 1969 Vienna Convention. These provisions recognize the existence of substantive norms of a fundamental character, such that no derogation from them is permitted even by treaty.632 (5) From the first it was recognized that these developments had implications for the secondary rules of State responsibility which would need to be reflected in some way in the articles. Initially, it was thought this could be done by reference to a category of “international crimes of State”, which would be contrasted with all other cases of internationally wrongful acts (“international delicts”).633 There has been, however, no development of penal consequences for States of breaches of these fundamental norms. For example, the award of punitive damages is not recognized in international law even in relation to serious breaches of obligations arising under peremptory norms. In accordance with article 34, the function 629 Barcelona Traction (see footnote 25 above), p. 32, para. 33. See M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, Clarendon Press, 1997). 630 See footnote 54 above. 631 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections (see footnote 54 above), p. 616, para. 31. 632 See article 26 and commentary. 633 See Yearbook … 1976, vol. II (Part Two), pp. 95–122, especially paras. (6)–(34). See also paragraph (5) of the commentary to article 12. 111 of damages is essentially compensatory.634 Overall, it remains the case, as the International Military Tribunal said in 1946, that “[c]rimes 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”.635 (6) In line with this approach, despite the trial and conviction by the Nuremberg and Tokyo Military Tribunals of individual government officials for criminal acts committed in their official capacity, neither Germany nor Japan were treated as “criminal” by the instruments creating these tribunals.636 As to more recent international practice, a similar approach underlies the establishment of the ad hoc tribunals for Yugoslavia and Rwanda by the Security Council. Both tribunals are concerned only with the prosecution of individuals.637 In its decision relating to a subpoena duces tecum in the Blaskić case, the Appeals Chamber of the International Tribunal for the Former Yugoslavia stated that “[u]nder present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems”.638 The Rome Statute of the International Criminal Court likewise establishes jurisdiction over the “most serious crimes of concern to the international community as a whole” (preamble), but limits this jurisdiction to “natural persons” (art. 25, para. 1). The same article specifies that no provision of the Statute “relating to individual criminal responsibility shall affect the responsibility of States under international law” (para. 4).639 (7) Accordingly, the present articles do not recognize the existence of any distinction between State “crimes” and “delicts” for the purposes of Part One. On the other hand, it is necessary for the articles to reflect that there are certain consequences flowing from the basic concepts of peremptory norms of general international law and obligations to the international community as a whole within the field of State responsibility. Whether or not peremptory norms of general international law and obligations to the international community as a whole are aspects of a single basic idea, there is at the very least substantial overlap between them. The examples which ICJ has given of 634 See paragraph (4) of the commentary to article 36. International Military Tribunal (Nuremberg), judgement of 1 October 1946, reprinted in AJIL (see footnote 321 above), p. 221. 636 This despite the fact that the London Charter of 1945 specifically provided for the condemnation of a “group or organization” as “criminal”; see Charter of the International Military Tribunal, Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, annex, United Nations, Treaty Series, vol. 82, No. 251, p. 279, arts. 9 and 10. 637 See, respectively, articles 1 and 6 of the statute of the International Tribunal for the Former Yugoslavia; and articles 1 and 7 of the statute of the International Tribunal for Rwanda (footnote 257 above). 635 638 Prosecutor v. Blaskić, International Tribunal for the Former Yugoslavia, Case IT-95-14-AR 108 bis, ILR, vol. 110, p. 688, at p. 698, para. 25 (1997). Cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections (footnote 54 above), in which neither of the parties treated the proceedings as being criminal in character. See also paragraph (6) of the commentary to article 12. 639 See also article 10: “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”