The mating system and mating strategies of a species refer to the behavioral strategies used to obtain reproductive partners and ensure reproductive success. Common determining factors of mating systems and strategies are: the manner of mate acquisition, the number of mates obtained by an individual, as well as the absence or presence and duration of parental care. In mammals, the energetic investments in gametes and rearing offspring are typically larger for females than for males. Mate selection is thus a much more important decision for females than for the rather indiscriminate males. This dichotomy results in sexual selection, which in turn is determined by male–male competition for access to females, as well as female mate choice. Because receptive females are generally considered the limiting resource in reproduction, males face intrasexual competition for mates. In a multitude of mammalian species, including bears, this has resulted in pronounced sexual size dimorphism and polygamous mating systems. Despite common characteristics (e.g. sexual size dimorphism, polygamy), variation in mating systems and strategies occur among bear populations and species.

The organizers of this volume had suggested that I write something in Louise Arbour's honour with the “provisional” title: “Human Rights Obligations of Non-State Actors: Are We There Yet?” This reveals, I suppose, that in some quarters it is inevitable that international law and human rights practice will evolve in a progressive way so that armed groups and others will eventually have human rights obligations attached to them. At another level, the proposed title reveals that those of us who have been whining about this topic, for some years now, might be thought by some to be annoying back-seat children pestering the grown-ups, the up-front parents in the driving seats of the serious business of inter-state relations and proper international human rights law.

My premise, in this short piece, is that the issue of the human rights obligations of non-state actors is more complex than the question of how far we have come along the road toward an ultimate consensus as to the existence of international responsibilities. I will argue that non-state actors do already have international human rights obligations (the lack of academic consensus notwithstanding) and that there are several routes by which they can already be held accountable. I will also suggest that the extent of their obligations depends on what kind of non-state actor they are, the context in which they are operating, and any relevant promises made by them. In other words, the scope of their obligations depends on their capacity, context, and commitments.

In a 2005 speech on combating economic social and cultural rights violations, as part of the struggle against torture, Louise Arbour, as United Nations (UN) High Commissioner for Human Rights, focused on accountability, and in that vein highlighted the adoption of the Optional Protocol to deal with individual complaints about violations of the International Covenant on Economic Social and Cultural Rights. She then pointed out: “The growing recognition that the private sector has responsibilities to respect human rights is also welcome. But means of holding States and non-State actors accountable for their actions in relation to human rights are still wanting.” In what follows we will explore what sort of growing recognition we are now talking about, and how far we have come in terms of the means of holding non-state actors accountable.

One might expect the opening chapter of this Cambridge Companion to International Criminal Law to suggest that human rights came first and slowly developed a criminal law arm in order to prosecute the worst offenders. Indeed, a well-established account presents the process as passing from a preliminary enunciation of values stage through to declarations, prescription, enforcement, and finally criminalisation. But the relationship between human rights and international criminal law is more complicated and, today, produces not only tension but also confrontation. This chapter will highlight tension over harmony, and suggest that the articulation of the relationship between these two branches of law remains very much ‘work in progress’. Although many scholars and activists are involved in both branches, at certain points the dynamics diverge and the thirst for the prosecution of international crimes may not always take fully on board the human rights implications of such processes.

International criminal law can be seen as covering both crimes under treaties, which usually take effect through national legal orders, as well as what are increasingly called ‘atrocity crimes’ or ‘core crimes’, which may exist independently of national law and can be prosecuted in international courts. Such atrocity crimes can of course also be prosecuted at the national level, where the national courts enjoy such jurisdiction.

International criminal law, in the form of treaty crimes, has been traced back to classical times and to a treaty between the Kings of Cyprus, Alexandria, Egypt, Cyrene, and Syria aimed at preventing the harbouring of pirates. The modern idea of international criminal law owes more, however, to the International Military Tribunals, established in Nuremberg and Tokyo after the Second World War. These courts, set up by the victorious Allies, focused on atrocity crimes (war crimes, crimes against humanity and genocide) as well as crimes against peace (aggression).

Strictly speaking, the Nuremberg International Military Tribunal had concluded its work before the drafting of the 1948 Universal Declaration of Human Rights had been completed. So it might seem that international criminal law came before international human rights law. But such a conclusion would ignore the key point that multiple commitments to fight for human rights were made by the Allies and popular movements throughout the Second World War.

Anti-terrorism treaties and secessionist struggle

One of the historical obstacles confronting the achievement of an internationally agreed definition of terrorism, as a crime under international law, has been support by some governments for the legitimacy of the use of force by peoples subjected to oppressive regimes. This support has extended into the negotiation of international treaties aimed at defining terrorist acts as crimes, and determining forms of international co-operation to punish such crimes. A clear illustration of such support can be found in the Convention of the Organisation of the Islamic Conference (OIC) on Combating International Terrorism of 1999:

This definition of what is not a terrorist crime, of course only applies in the context of this particular Convention, but other non-universal Conventions include similar exclusions. Consider the 1999 OAU Convention on the Prevention and Combating of Terrorism 1999:

Lastly, consider also Article 2 of the Arab Convention on the Suppression of Terrorism 1998:

Introduction

The International Criminal Court came into existence on 1 July 2002. The new Court has jurisdiction over genocide, crimes against humanity and war crimes; but the Court can only try international crimes committed on or after 1 July 2002. Any national, from any of the more than eighty states that have ratified the Statute of the Court, can be a potential defendant before the new Court. In addition, the Court will have jurisdiction over crimes committed in state parties, even when perpetrated by nationals from states which have not become parties to the Statute. There are further grounds for jurisdiction but we need not dwell on them here. In this contribution I shall remain with the theme of the Nuremberg trials and use these trials as a springboard to explore three concepts which I think may help us to think about the ways in which the new International Criminal Court will operate. The three concepts I wish to explore are: complexity, complicity and complementarity.

Complexity

To understand what I mean by complexity in this context, let us consider some of the fundamental legal innovations of the Nuremberg judgment delivered by the International Military Tribunal. First, the notion of individuals having concrete duties under international law, as opposed to national law, was clearly enunciated, really for the first time, and later accepted by the international community of states. Until the Nuremberg trial, war crimes trials had been held at the national level under national military law.

Introduction

This chapter is written from the perspective of a large international non-governmental organisation (NGO): it seeks to share some of the experiences which Amnesty International has had with the UN treaty bodies. Amnesty International operates in several different contexts within the UN system. The organisation works with the political bodies (the Security Council, General Assembly and Commission on Human Rights), as well as with the various agencies, expert bodies, and field operations.

The first thing that strikes one when considering the use made of the treaty bodies by NGOs is the ‘splendid isolation’ of the treaty bodies from the rest of the UN system. The treaty bodies are considered by some to be the heart of the human rights system, and the treaty bodies see themselves as the hub around which others should circle. The reality is that the treaty bodies are becoming more and more peripheral to the UN system and need to reach out to establish new links. In preparing this chapter the author spoke to two former UN officials who had headed UN human rights field operations. Neither ex-director could remember having had any contact or use for the treaty bodies. They considered the treaty bodies irrelevant for the ‘real’ human rights work which was being performed in the country. This chapter will highlight the need for new links to the treaty bodies and will put forward a series of suggestions for a more integrated approach to human rights monitoring in the UN system.