Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-09T16:26:54.303Z Has data issue: false hasContentIssue false
  • English
  • Français

Concurrence between Individual Responsibility and State Responsibility in International Law

Published online by Cambridge University Press:  17 January 2008

André Nollkaemper
Get access Rights & Permissions [Opens in a new window]

Extract

This article explores the consequences of the expansion of the domain of individual responsibility for the law of state responsibility. It is induced by a number of recent cases in which state responsibility claims were accompanied by prosecutions of individuals whose acts led to the responsibility of the state. An example is the parallel attribution of (alleged) acts of genocide in the former Yugoslavia between 1991 and 1995 to Yugoslavia and to Slobodan Milosević.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 3 , July 2003 , pp. 615 - 640
Copyright
Copyright © British Institute of International and Comparative Law 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Art 25(4) Statute on the International Criminal Court, Rome, 17 July 1998 (hereafter ICC Statute) states: ‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’, UN Doc A/CONF. 183/9.

2 Art 58 ILC Articles on responsibility of States for internationally wrongful acts (hereafter ILC Articles) states: ‘[t]hese articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.’ The ILC articles are contained in the Annex of UN Doc A/Res/56/83 of 28 Jan 2002.

3 Specific literature on this aspect is only now emerging: eg, Dupuy, PM, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’, in Cassese, A, Gaeta, P, and JRWD, Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), 1085–1100Google Scholar; Fox, H, ‘The International Court of Justice's Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to States’, in Nisuke, Ando et al. , Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer Law International, 2002) 147Google Scholar; Spinedi, Marina, ‘State Responsibility v Individual Responsibility for International Crimes: Tertium Non Datu’, 13 EJIL (2002) 895Google Scholar; Bos, A, ‘Crimes of State: In Need of Legal Rules’, in Kreijen, G (ed), State, Sovereignty, and International Governance (Oxford: Oxford University Press, 2002) 221Google Scholar; Rosenne, S, ‘State Responsibility and International Crimes: Further Reflections on Art 19 of the Draft Articles on State Responsibility’, 30 NYU Journal of International Law and Politics (1997–1998), 145Google Scholar; id, ‘War Crimes and State Responsibility’, 24 Israel Yearbook on Human Rights (1995) 63Google Scholar, Evans, M, ‘International Wrongs and National Jurisdiction’, in Evans, (ed), Remedies in International Law: The Institutional Dilemma (Oxford: Hart, 1998) 173Google Scholar; O Triffterer, ‘Prosecution of States for Crimes of State’, 67 Revue Internationale de Droit Penal (1996) 341; Degan, v, ‘Responsibility of states and individuals for international crimes’, in Sienho, Yee and Wang, Tieya (eds), International Law in the Post-Cold War World. Essays in Memory of Li Haopei (London: Routledge, 2001), 202.Google Scholar

4 The Permanent Court of International Justice stated: ‘States can act only by and through their agents and representatives’, Case of Certain questions relating to settlers of German origin in the territory ceded by Germany to Poland, Advisory opinion, PCIJ Series B, No 6, 22.

5 Anzilotti, D, Cours de droit international (Paris: Recueil Sirey, 1929), transl, by Gidel, Gilbert, 503Google Scholar; Dupuy, PM, ‘Dionisio Anzilotti and the Law of International Responsibility of States’, 3 EJIL (1992) 139, at 141–2CrossRefGoogle Scholar (herafter Dupuy, Anzilotti).

6 Selmouni v France, ECHR Reports V (1999) 29 EHRR 403, para 87 (emphasis added).

7 The principle also was recognised by the British Ambassador in Washington in the Mac Leod-case, He noted that the destruction of the Caroline ‘was a public act of persons in her Majesty's service, obeying the order of their superior Authorities. The act, therefore, according to the usages of nations, can only be the subject of discussion between the Two National Governments: it cannot justly be made the ground of legal proceedings in the United States against the individuals concerned’. (Reported in Moore, II A Digest of International Law, 409 et seq; reproduced in Mac, Nair, 2 International Law Opinions, Cambridge: Cambridge University Press, 1956, 224).Google Scholar

8 See for discussion of the views of Anzilotti on the isolation of international law as an autonomous entity in relation to national law: Dupuy, Anzilotti, op cit, 143 and Gaja, G, Positivism and Dualism in Dionisio Anzilotti, 1 EJIL (1992) 123, at 134.CrossRefGoogle Scholar See for the relationship between the dichotomy state-individual, on the one hand, and international law-national law, on the other: Kelsen, H, Law and Peace in International Relations. The Oliver Wendell Holmes Lectures, 1940–41 (Cambridge: Harvard University Press, 1942), 96Google Scholar; and Allott, P, ‘State Responsibility and the Unmaking of International Law’, 29 Harvard International Law Journal (1988) 1, at 14.Google Scholar

9 Tomuschat, C, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ 281 Recueil des Cours (1999) 9, at 281–2.Google Scholar

10 G Arangio-Ruiz, ‘State Fault and the Forms and Degrees of International Responsibility: Questions of Attribution and Relevance, in Le droit international au service de la paix, de la justice et du développement (1991) 25, at 26. Arrangio-Ruiz notes that the main theories excluding fault from the elements of an international delinquency were proposed by dualist writers as Triepel, Anzilotti, and Kelsen.

11 See section V.D below.

12 Lauterpacht, H, International Law and Human Rights (reprint 1968) (Hamden: Archon Books, 1950) 40.Google Scholar

13 Allott, op cit, 14.

14 As of yet, the individualisation of responsibility takes the form of international criminal responsibility. However, there is no principled reason why it could not also manifest itself in international civil responsibility; see Lauterpacht, op cit, 41–2; Scott, C, ‘Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Right Harms’, in Craig, Scott (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford: Hart, 2001) 45.Google Scholar

15 Although the fact that an individual acted as organ of the state may shield that individual from prosecution, it does not take away the responsibility; see Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 Feb 2002, para 60.

16 Individual responsibility was recognised in Art IV of the Charter of the International Military Tribunal of Nuremberg, 82 UNTS 279. While the ICC (temporarily) excludes aggression from the jurisdiction of the International Criminal Court (Art 5 ICC Statute), this does not necessarily affect individual responsibility. For state responsibility see Military and Paramilitary Activities Case, ICJ Reports (1986), 101; Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, GA Res 3314 (XXIX), (1974), UN Doc A/RES/36/103. See also Dinstein, Y, War, Aggression and Self-Defence (Cambridge: Cambridge University Press, 2001) 98.CrossRefGoogle Scholar

17 Convention on the Prevention and Punishment of the Crime of Genocide, UNTS, vol 78, No 1021 (1951) 277; Art 7 (2) ICTY Statute, 32 ILM (1993) 1192; Art 6 (2) ICTR Statute 33 ILM (1994) 1602; Art 27 ICC Statute. The ICJ indicated that state responsibility can not only arise for failure to prevent or punish individuals committing genocide, but also for an act of genocide perpetrated by the state itself. Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) para 32.

18 See for individual responsibility, eg, Art 7 ICC Statute. State responsibility for crimes against humanity is expressly recognised for the crime of apartheid: see International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973, Art 1 and 2. A Greek Court has held that violations of Art 46 of the Fourth Hague Convention of 1907 could be qualified as crimes against humanity, see Prefecture of Voiotia v Federal Republic of Germany, Greek Court of Cassation, 4 May 2000, reported in 3 Yearbook of International Humanitarian Law (2000) 511, at 514–15. Otherwise, acts for which individuals could be charged with crimes against humanity could in any case be considered in terms of state responsibility for (gross) violations of human rights.

19 Such acts can be qualified as grave breaches under Art 146 Geneva Convention [IV]. Also, such acts could be considered as breaches of the prohibition of states to murder protected persons under Art 32 of the same Convention.

20 Individuals can be held responsible for terrorism under, eg, the 1999 International Convention for the Suppression of the Financing of Terrorism, UN Doc. A/RES/54/109, 39 ILM (2000) 568 and the 1997 International Convention for the Suppression of Terrorist Bombings, UN Doc. A/RES/52/164, 37 ILM (1998) 751. In his Dissenting Opinion in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie case (Libyan Arab Jamahiriya v United Kingdom), Preliminary Objections. Judgment, ICJ Reports (1998) 9, President Schwebel suggested that the Montreal Convention ‘may be interpreted to imply that the Convention does not apply to allegations against persons accused of destroying an aircraft who are claimed, as in the instant case, to be acting as agents of a contracting State’ (at 64). However, his wording is cautious and Judge Schwebel proceeded on the assumption that the Convention does apply to persons allegedly State agents who are accused of destroying an aircraft. Judge Bedjaoui noted that the words ‘any person’ in Art 1 of the Montreal Convention mean that ‘the Convention applies very broadly to “any” person, whether that person acts on his own account or on behalf of any organisation or on the instructions of a State’, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie case (Libyan Arab Jamahiriya v United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports (1992) 3, Diss op, at 37, para 10. As to state responsibility: Condorelli, L, ‘The imputability to states of acts of international terrorism’, 19 Israel Yearbook on Human Rights (1989) 233Google Scholar. Sucharitkul, S, ‘Terrorism as an international crime: questions of responsibility and complicity’, 19 Israel Yearbook on Human Rights (1989) 252.Google Scholar

21 In Prosecutor v Furundzija, Judgment of 10 Dec 1998, IT-95/17/1, para 142, the ICTY said: ‘Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers.’

22 Dupuy, op cit, 1086.

23 In November 2001 a German court convicted four individuals, see <http://www.labelletrial.de/mainmid/verdict_main_en.htm>. The German court was ‘convinced that the Libyan state bears a considerable co-responsibility at least’ for the bomb attack, as ‘agents of the Libyan secret service played a leading role in planning it’.

24 Foreign Minister Joschka Fischer's officials pointed out that ‘das Ministerium erst loslegen koenne, wenn ein rechtskraeftiges Urteil da sei. Aus diesem Grunde passierte in dem Fall auch seit der muendlichen Urteilsverkuendung imNovember vergangenen Jahren nichts.’ See ‘Berliner Richter belasten Gaddafis regiume’, at <http://www.spiegel.de/politik/deutschland/0,1518,228970,00.htm> last visited on 14 April 2003.

25 The Scottish Court in the Netherlands acquitted one suspect and convicted Abdel Basset al-Megrahi. Scottish High Court of Justiciary at Camp Zeist (The Netherlands), Her Majesty's Advocate v Al Megrahi (31 Jan 2001), 40 ILM 582. The conviction was confirmed on appeal on 14 Mar 2002.

26 After the conviction of Abdel Basset al-Megrahi, who was said to be a member of the Libyan secret service, the United States and the United Kingdom made renewed calls on Libya to provide compensation. See The Guardian (London), 15 Mar 2002, 4.

27 Judgment of 10 Dec 1998, 38 ILM 317 (1999), para 142.

28 Application of the Genocide Convention case, Preliminary Objections, para 32.

29 Art 29 Geneva Convention [IV] provides that ‘The party to the conflict, in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred’ (emphasis added). See generally on state responsibility for war crimes: Kalshoven, F, ‘State Responsibility for Warlike Acts of the Armed Forces’, 40 ICLQ (1991) 827CrossRefGoogle Scholar; Rosenne, ‘War Crimes and State Responsibility’, op cit.

30 In its commentary to former Art 19, the ILC said that individual responsibility ‘certainly does not exhaust the prosecution of the international responsibility incumbent upon the state for internationally wrongful acts which are attributed to it in such cases by reason of the conduct of its organs’ and that ‘the state may thus remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime’ (Report of the International Law Commission on the work of its forty-eighth session (Doc A/51/10), General Assembly Official Records Fifty-First Sess, Suppl No 10, 30). It also stated that ‘the criminal responsibility of individuals does not eliminate the international responsibility of States for the acts committed by persons acting as organs or agents of the State’ (Report of the International Law Commission on the work of its thirty-sixth session (Doc A/39/10), YILC (1984), II, Part Two, 11, para 32).

31 Fitzmaurice, G, ‘The General Principles of International Law—Considered from the Standpoint of the Rule of Law’, 92 Recueil des Cours (1957) 1, at 88Google Scholar. See also Beckett, WE, ‘Les Questions d'Interet Général au Point de Vue Juridique dans la Jurisprudence de la Cour Permanente de Justice Internationale’, 39 Recueil des Cours (1934) 131, at 155.Google Scholar

32 The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Part 22, at 447. But see Bos, op cit, 225–6, noting that it was intended to exclude criminal liability of legal persons.

33 Joint declaration of Judge Shi and Judge Vereshchetin ICJ Rep 1996, 631; Declaration of Judge Oda, Ibid, 625.

34 Ibid, 632.

35 Tomuschat, op cit, 290.

36 Kelsen, op cit, 97–8; Cassese, Antonio, International Law (Oxford: Oxford University Press, 2001), 6–8Google Scholar; Cooper, D, ‘Collective responsibility, “moral luck”, and reconciliation’, in Jokic, A (ed), War Crimes and Collective Wrongdoing (Maiden: Blackwell, 2001), 205.Google Scholar

37 Gray, C, Judicial Remedies in International Law (Oxford: Clarendon Press, 1987) 28Google Scholar; Cheng, Bin, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953), 234–6.Google Scholar

38 See, eg, in the Netherlands, Supreme Court, 25 Nov 1927, NJ 1928, 364.

39 Triffterer, op cit, 342–3.

40 Art 8 ICC Statute.

41 Bos, op cit, 236.

42 Application of the Genocide Convention case. Preliminary Objections, para 14.

43 UN Doc. A/46/827; S/23308 (1991), Ann.

44 Crawford notes: ‘It is a characteristic of the worst crimes of the period since 1930 that they have been committed within and with the assistance of State structures’, 4th report, UN Doc A/CN.4/490/Add 3 (1998), para 89. Also: Dupuy, op cit, 1092; Triffterer, op cit, 346.

45 See, eg, the Consolidated text of proposals on the crime of aggression discussed in the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2001/L 3/Rev 1, Annex III of 11 Oct 2001.

46 This was expressed by some states in the negotiations of the Genocide Convention. The United Kingdom took the position that the Convention should be directed at states and not individuals, as it was impossible to blame any particular individual for actions for which whole governments or states are responsible. Schabas, W, Genocide in International Law (Cambridge: Cambridge University Press, 2000), 419Google Scholar. Also Denmark considered that in cases of genocide or aggression, the responsibility cannot be limited to the individual acting on behalf of the state, Ibid, at 442.

47 Cf the definition of ‘crimes against humanity’ in Art 7 ICC Statute.

48 Prosecutor v Furundzija, op cit, para 142.

49 Arangio-Ruiz, 5th Report, UN Doc A/CN 4/453/Add 3 (1993), para 158; Bos, loc cit, 237.

50 Arendt, Hannah, Eichmann in Jerusalem. A Report on the Banality of Evil (New York: the Viking Press, 1963), 240Google Scholar. See also Allott, op cit, 15; Triffterer, op cit, 346; Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 Feb 2002, Diss op of Judge Al-Khasawneh (noting that such acts ‘are definitionally State acts’ (para 6)) 1. This last remark may overstate the issue, as also other organised groups, that may oppose the state, may provide for the necessary systemic context.

51 Waltz, KN, Man, the State and War. A Theoretical Analysis (New York: Columbia University Press, 1959) ch 4–5Google Scholar and id, Theory of International Politics (New York: Columbia University Press, 1979)Google Scholar. Note that Waltz adds as a third explanatory level the system of international relations between states and more in particular the anarchy that characterises that system. Obviously, this level is not easily addressed by the principles of international responsibility. See Nollkaemper, A, ‘On the Effectiveness of International Rules’, 27 Ada Politica (1992) 49.Google Scholar

52 The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Part 22, at 447.

53 See for a strongly worded statement to the same effect, Jennings, R, ‘The Pinochet Extradition Case in the English Courts’, in L, Boisson de Chazournes and V, Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality. Liber Amicorum George Abi-Saab (The Hague: Nijhoff, 2001), 677, at 693Google Scholar, referring to the words of the Nuremberg Tribunal cited above as a ‘net and high sounding but dangerous, not to say dishonest, half-truth’ that has ‘a considerable currency with the great and the good, who have been willing to deceive themselves into believing that this aphorism represented the essence of wisdom’.

54 Dupuy, op cit, 1089, referring to ‘double crimes’. See for a discussion of the terminology, Pellet, A, ‘The New Draft Articles of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts: A Requiem for States' Crime?’, 32 Netherlands Yearbook of International Law (2001) 58–60.CrossRefGoogle Scholar

55 Crawford, James, ‘Revising the Draft Articles on State Reponsibility’, 10 EJIL (1999) 443.CrossRefGoogle Scholar

56 Tomuschat, op cit, 290.

57 This was the definition of ‘sanctions’ by the ILC in its early consideration of the concept of crimes; see Yearbook ILC 1973, Vol II, 175, para 5 of the commentary to Art 1.

58 Arangio-Ruiz, Fifth Report, op cit, para 88. See also Graefrath, B and Mohr, M, ‘Legal Consequences of an Act of Aggression: the Case of Iraqi Invasion and Occupation of Kuwait’, 43 Austrian Journal of Public International Law (1992) 127–8Google Scholar; Drost, PN, The Crime of State, I (Leyden: Sythoff, 1959), 296–7.Google Scholar

59 Also, Art 59 states that the Articles are without prejudice to the Charter of the United Nations.

60 Comments United States, in UN Doc. A/CN.4/515 (2001) 53. See also Crawford, The International Law Commission's Articles on State Responsibility, op cit, commentary to Art 40, para 9.

61 See Conforti, B, International Law and the Role of Domestic Legal Systems (Dordrecht: Martinus Nijhoff Publishers, 1993) 176Google Scholar, noting that self-help is the normal reaction to an internationally wrongful act. This includes use of force legitimised under Art 51 UN Charter and countermeasures. See also Kelsen, op cit, 32 ff.

62 See Higgins, R, Problems and Process, International Law and How We Use It (Oxford: Clarendon Press, 1994) 181–4Google Scholar. A similar broad conception is adopted by Triffterer, op cit, 343 (referring to the sanctions imposed or authorised by the Security Council as one example of ‘prosecution’ of states for crimes of state). See also Herdegen, M, Befugnisse des UN-Sicherheitsrates: afgeklärter Absolutismus im Völkerrecht (Heidelberg: Müller, 1998) 20Google Scholar (stating that ‘In der Regel wird eine Friedensbedrohung durch die schwerwiegende Verletzung von Völkerrechtspflichten begründet’); Graefrath, B, International Crimes—A Specific Regime of International Responsibility of States and its Legal Consequences, in: Weiler, JHH, Cassese, A and Spinedi, M (eds), International Crimes of States: A Critical Analysis of the ILC's draft Article 19 on State Responsibility (Berlin/New York: Walter de Gruyter, 1988), 164.Google Scholar

63 Simma, B, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Yoram, Dinstein (ed.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dordrecht: Nijhoff, 1989) 821, at 844Google Scholar; Pellet, ‘The New Draft Articles’, op cit, 72–9.

64 Crawford, The International Law Commission's Articles on State Responsibility, op cit, commentary to Art 41, para 14.

65 Lockerbie case, Provisional measures, Dissenting Opinion of Judge Bedjaoui, ICJ Reports (1992) 33–49.

66 Above, n 43.

67 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports (1992) 3, Separate Opinion of Judge Shahabuddeen, at 31.Google Scholar

68 Above, n 26.

69 See generally Charney, J, ‘Is international law threatened by multiple international tribunals?’, 271 Recueil des corns (1998) 356–63.Google Scholar

70 ICJ Reports (1949) 4, at 21.

71 For example, in the Review of the Indictment of Karadzic and Mladic, Judge Riad found that, prima facie the facts presented in the indictment disclose ‘above all, the commission of genocide’. ICTY, Trial Chamber, Review of the Indictment, The Prosecutor v Radovan Karadzic & Ratko Mladic, Case No. IT-95–18-I, 16 Nov 1995.

72 Schenk v Switzerland, series A No 140 (1988) 13 EHRR 242. See also Harris, DJ, O'Boyle, M, and Warbrick, C, The Law of the European Convention on Human Rights (London: Butterworths, 1995), 680.Google Scholar

73 McCann v UK, series A No 324 (1996) 21 EHRR 97, para 165.

74 Above n 24 and n 26.

75 SC Res. 748 (1992), calling on Libya to comply with the request of the United States and the United Kingdom to extradite the suspects might be said to be based on the assumption that an impartial trial by the national courts of Libya was unlikely.

76 For determining individual responsibility in the ICC, the standard is proof ‘beyond a reasonable doubt’; see Art 66(3) ICC Statute. For proof required for establishing state responsibility, no uniform standard exists, but in principle the standard will be lower than in cases on individual responsibility. See Sandifer, D, Evidence before International Tribunals, rev edn (Charlottesville: University Press of Virginia, 1975) 127Google Scholar. For the ICJ, see Rosenne, S, The Law and Practice of the International Court, 1920–1966, 3rd edn (The Hague: Nijhoff, 1997) 1089–90Google Scholar. For the IACHR: Buergenthal, T, ‘Judicial Fact-Finding: Inter-American Human Rights Court’, in Fact-Finding Before International Tribunals (New York: Ardsley-on-Hudson, 1992) 270–271Google Scholar and Shelton, DL, ‘Judicial Review of State Action by International Courts’, 12 Fordham International Law Journal (1989) 384–7Google Scholar; for the Human Rights Committee: McGoldrick, D, The Human Rights Committee: its Role in the Development of the International Covenant of Civil and Political Rights (Oxford: Clarendon Press, 1994), 150Google Scholar (standard of proof: ‘balance of probabilities’ rather than ‘beyond reasonable doubt’).

77 Judge Shahabuddeen stated that ‘the standard of proof varies with the character of the particular issue of fact’; and that ‘a higher than ordinary standard may … be required in the case of a charge of “exceptional gravity against a State”.’ Qatar v Bahrain (Jurisdiction and Admissibility), ICJ Reports (1995) 63, Diss op Judge Shahabuddeen, referring to Corfu Channel, Merits, Judgment, ICJ Reports (1949), 17.

78 See Velazques-Rodriquez case, para 129 (noting that the Court cannot ignore the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory and that ‘This requires the Court to apply a standard of proof which considers the seriousness of the charge’). See further IACHR, Raquel Marti de Mejia v Peru, Case 10.970, Report No. 5/96, Inter-Am CHR, OEA/Ser.L/V/II.91 Doc 7, at 157 (1996) (noting that while the ICJ must seek to preserve the interests of the parties in dispute, within the sphere of the American Convention, Art 42 of its Regulations (pertaining to the weight to be attached to submission to which governments have not responded, ‘must be interpreted in light of the basic purpose of the Convention, ie protection of human rights’).

79 Generally: Seiderman, I., Hierarchy in International Law. The Human Rights Dimension (Antwerpen: Intersentia, 2001).Google Scholar

80 Pellet, A, ‘Can a State Commit a Crime? Definitively, Yes!’, 10 EJIL (1999) 432CrossRefGoogle Scholar; id, The New Draft Articles, op cit, 77.

81 Art 4(1) ILC Articles.

82 See section IIIB.

83 Triffterer, op cit, 342–3, distinguishes between cases where at high level decisions are taken that lead the state to violate international law, on the one hand, and cases where individual state organs with limited power to act on behalf of the state commit such crimes, for instance by not applying certain regulations, on the other. In the ILC it was noted: ‘to use the legal fiction of attribution to make a state liable to compensate for damage caused by its officials is one thing, while casting the shadow of a crime over the population was another’, Yb ILC (1995), Vol I, Part Two, 48–9.Google Scholar

84 Art 28 ICC Statute.

85 The issue is raised by Fox, op cit, 161–2.

86 K Zemanek, ‘Schuld- und Erfolgshaftung im Entwurf der Völkerrechtskommission über Staatsverantwortlichkeit’, in: Festschift für R. Bindschedler (1980) 322; Pisillo-Mazzeschi, R, ‘The due diligence rule and the nature of the international responsibility of states’, in 35 German Yearbook of International Law (1992), 9.Google Scholar

87 Pellet, ‘Can a State Commit a Crime?,’ op cit, 434; Crawford, The International Law Commission's Articles on State Responsibility, op cit, commentary to Art 40, para 8.

88 See for a discussion of the concept of individual and state intent in the context of the Genocide Convention: Koskeniemmi, M, ‘Evil Intentions of Vicious Acts? What is prima facie evidence of genocide?’, in Matti, Tupamäki (ed), Liber Amicorum Bengt Broms, Celebrating His 70th Birthday 16 October 1999 (Helsinki: Finnish Branch of International Law Association, 1999), 180.Google Scholar

89 Watts, A, ‘The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers’, 247 Recueil des Corns (1994) 9, at 31–2.Google Scholar

90 Pellet, , remarks in ILC, 2993rd Meeting, Yb ILC (1995), Vol I, p. 97Google Scholar. See for a critique on the treatment of fault in the work of the ILC on state responsibility also Gattine, A, ‘La notion de faute à la lumière du projet de convention de la Commission du Droit International sur la responabilité internationale’, 3 EJIL (1992) 253CrossRefGoogle Scholar; and id, ‘Smoking/No Smoking: Some Remarks on the Current Place of Fault in the ILC Draft Articles on State Responsibility’, 10 EJIL (1999) 397Google Scholar. Dupuy, op cit, 1096 notes that intention does remain individual and is only in a sense communicated to the state because the origin of the state is men.

91 Jiménez de, Aréchaga, International Responsibility, in Max, Sorensen, et al (eds), Manual of Public International Law (London: Macmillan, 1968), 535.Google Scholar

92 Arangio-Ruiz, State fault, op cit, 29.

93 Basdevant, J, ‘Regies Générates du Droit de la Paix’, 58 Recueil des Corns (1936) 672.Google Scholar

94 See Arangio-Ruiz, State Fault, op cit, 36.

95 Art 32 ICC Statute.

96 Art 33 ICC Statute.

97 Art 31(l)(a) ICC Statute.

98 Art 24(1) ILC Articles.

99 Art 31(d) ICC Statute.

100 Art 31 (d). In contrast, the Trial Chamber of the ICTY in the Erdemovic case held that duress could not afford a ‘complete defense to a soldier charged with crimes against humanity or war crimes in international law involving the taking of innocent lives’. ICTY, Prosecutor v Erdemovic, Case No: IT-96–22-A, Judgment, (Oct 7, 1997), 37 ILM 1182 (1998), Joint Separate Opinion of Judges McDonald and Vohrah, para 88.

101 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1984/72, reprinted in 23 ILM 1027 (1984), Art 4–7. This obligation also is based on human rights law, see eg Godinez Cruz Case, Judgment of 20 Jan 1989, Inter-Am Ct HR (Ser C) No 5 (1989), stating that the obligation to punish was part of the ‘legal duty to take reasonable steps to prevent human rights violations’ (paras 184–5).

102 Art 146 Geneva Convention [IV].

103 Art 4–6 Genocide Convention.

104 Art 29 ILC Articles.

105 This Article has not been included in the Articles as adopted in 2001, but the exclusion appears unrelated to the principle discussed here.

106 This is not included in the final Articles of the ILC, but is understood to be covered by the words ‘or another appropriate modality’ in Art 37(2). See Statement of the Chairman of the Drafting Committee, Mr Peter Tomka at the 53rd session of the ILC, available at <http://www.un.org/law/ilc/sessions/53/english/dc_respl.pdf> and Crawford, J, The International Law Commission's Articles on State Responsibility (Cambridge: Cambridge University Press, 2002), 233.Google Scholar

107 Following the shooting down of an Israeli plain by Bulgarian agents, Israel asked the Court to take note ‘of the failure of the Government of Bulgaria to implement its undertaking to identify and punish the culpable persons’. Case concerning the Aerial Incident of July 27th, 1955 (Israel v Bulgaria), Preliminary Objections, Judgment of 26 May, ICJ Reports (1959), 127.

108 The UN Secretary General ordered the detention of the two responsible French Service agents as part of the reparation due to New Zealand; Rainbow Warrior case (New Zealand v France), 74ILR 241, at 271–2. Action against the guilty individuals was requested in the case of the killing in 1948, in Palestine, of Count Bernadotte while he was acting in the service of the United Nations (Whiteman, Digest, vol 8, 742–3) and in the case of the killing of two United States officers in Tehran (RGDIP, vol 80, 257).

109 Eg Clemente Teherán et al, Order of the Court of 19 June 1998, Inter-Am Ct HR (Ser E) No 2 (1998), calling on Columbia to ‘investigate the acts denounced which gave rise to these measures, for the purpose of obtaining effective results that would lead to the discovery and punishment of those responsible’; Godinez Cruz, Compensatory Damages (Art 63(1) American Convention on Human Rights), Judgment of 21 July 1989, Inter-Am Ct HR (Ser C) No 8 (1989), para 31. In some cases the distinction between a remedy and a continued obligation is not drawn sharply. In the Godmez Cruz case, Judgment of 20 Jan 1989, Inter-Am Ct HR (Ser C) No 5 (1989), the Court stated that the obligation to punish was part of the ‘legal duty to take reasonable steps to prevent human rights violations’ (para 184–5). See also the Giraldo Cardona case, Order of the Court of 30 Sept 1999, Inter-Am Ct HR (Ser E) No 2 (1999) and the Blake case, Reparations (Art 63(1) American Conventions on Human Rights), Judgment of 22 Jan 1999, Inter-Am Ct HR (Ser C) No. 48 (1999), para 63–5.

110 Rosenne, State Responsibility and International Crimes, loc cit. Austria commented on the first draft of the ILC Articles by stating that Art 45(2)(d) should better reflect the growing number of international obligations to prosecute or extradite individuals, see UN Doc A/CN.4/488, 111.

111 As to the ICJ, it would appear to be within its powers to order in appropriate cases prosecution of individual authors of acts or, alternatively, cooperation with international criminal tribunals. Cf. the Iranian Hostages case: ICJ Reports (1980), 1. See Gray, loc cit, 59–68. In the second order in the Application of the Genocide Convention case, ICJ Reports (1993) 348, para 56, the Court noted the decision to establish to ICTY to prosecute individuals, but did not draw direct conclusions from it; see also Rosenne, ‘War Crimes and State Responsibility’, loc cit, 100. Also the Inter-American Court on Human Rights has assumed the power to order punishment. The European Court on Human Rights on the other hand has not interpreted its own competence as extending to orders for prosecution or punishment. See Harris, O'Boyle, Warbrick, op cit, 684.

112 Yb ILC (1993) Vol. II (Part Two), 76–81. In the commentary to the draft Articles, it was noted that this provision ‘covered a domestic concern regarding disciplinary action against officials which should not be covered in the draft articles’, see A/CN.4/504, 120, para 72.

113 Dupuy, loc cit, 1091. Also Triffterer, loc cit, 346 (noting that since the crimes within the jurisdiction of the ad hoc tribunals are ‘typically committed at least partly by persons who act as government representations on behalf of the state or with the silent toleration or even active support of the state’ and that a judgment of individual criminal responsibility in many cases ‘implies an obiter dictum’ about the engagement of the state itself in these crimes).

114 Rosenne, ‘State Responsibility and International Crimes’, op cit, 165.