A/HRC/31/70 inter alia, crimes against humanity is also stipulated in article 9 of the Draft Code of Crimes against the Peace and Security of Mankind, according to which a State party in the territory of which an individual alleged to have committed a crime is found is to extradite or prosecute that individual. 27. The Special Rapporteur again stresses that the continuing situation in the Democratic People’s Republic of Korea behoves the international community to take prosecutorial measures in relation to crimes against humanity committed in that country. E. Structural and operational aspects of an effective process of accountability 1. Crimes against humanity 28. As the commission of inquiry noted, the prohibition of crimes against humanity forms part of the body of pre-emptory norms (jus cogens) that bind the entire international community as customary international law (see A/HRC/25/CRP.1, para. 1195). Consequently, individuals who commit crimes against humanity in the Democratic People’s Republic of Korea may be held responsible on the basis of customary international law, even though the State is not a party to the Rome Statute of the International Criminal Court and has no provisions against crimes against humanity in its domestic criminal law. The Special Rapporteur also recalls that international law does not permit amnesties for crimes against humanity, particularly in relation to those most responsible for such crimes. Similarly, it is an established principle of international law that acting on the orders of a superior is not a defence for perpetrators of crimes against humanity (see ibid.). 2. Command and superior responsibility 29. The Special Rapporteur also recalls that, according to the principle of command and superior responsibility under international criminal law, military commander and civilian superiors are criminally responsible for failing to prevent or repress crimes against humanity committed by persons under their effective authority and control. 4 Consequently, the criminal responsibility of the uppermost leadership of the Democratic People’s Republic of Korea, including the Supreme Leader, for crimes against humanity must be considered, for ordering or instigating such crimes, even if lower-ranking officials carried out the crimes. 3. Principle of complementarity 30. With regard to the obligation to prosecute, it remains the rule that States have primary responsibility to exercise jurisdiction over serious crimes under international law. 5 When national courts are unable to offer satisfactory guarantees of independence and impartiality or are materially unable or unwilling to conduct effective investigations or prosecution, international and internationalized criminal tribunals may exercise concurrent jurisdiction. 6 International and internationalized tribunals are not, however, intended to stand in for domestic courts or to replace domestic obligations to investigate, prosecute and punish. This principle of complementarity rests on a combination of respect for State 4 5 6 Rome Statute of the International Criminal Court, art. 28. See E/CN.4/2005/102/Add.1, principle 20. Ibid. 7