Duality of Responsibility in International Law: The Individual, the State, and International Crimes 9004505369, 9789004505360

Table of contents :
Half Title
Series Information
Title Page
Copyright Page
Contents
Foreword
Preface
Abbreviations
About the Author
Table of Cases
Introduction
Part 1 Parameters of Responsibility
Chapter 1 Subjects of Responsibility under International Law
a The State as a Subject of International Law
b The Individual as a Subject of International Law
c Duality of Responsibility in International Law
Chapter 2 Primary and Secondary Rules
a Primary Rules
i Individual-Directed Rules
ii State-Directed Rules
b Secondary Rules
i Distinguishing Secondary Rules of Individual and State Responsibility
ii Secondary Rules of Individual Responsibility
iii Secondary Rules of State Responsibility
iv Associated Secondary Rules
1 Consequences
2 Defenses
3 Jurisdiction
4 Immunity
Part 2 Breach
Chapter 3 Crimes under International Law
a Elements of Individual Criminal Responsibility
i The Objective Element
ii The Subjective Element
b An Element Approach to Crimes
Chapter 4 Internationally Wrongful Acts
a Elements of State Responsibility
b Two Categories of Primary Rules
c Concurrent State Responsibility
i Peremptory Norms and Their Correlates
ii Acta Jure Imperii
iii Crimes of States
iv Aggravated State Responsibility
d Complementary State Responsibility
i Obligations Erga Omnes
ii Implications of Distinct Primary Rules
1 International Crime as a Prerequisite
2 Attribution of International Crime not a Prerequisite
3 No Mitigation of Concurrent Responsibility for an International Crime
Chapter 5 Breach and the Interaction of Primary and Secondary Rules
a Relationship between Elements of Individual and State Responsibility
b Sources of Law
c Standards of Proof
Part 3 Attribution
Chapter 6 Rules of Attribution in International Criminal Law
a Modes of Attribution
i Commission
1 Direct Perpetration
2 Indirect Perpetration
3 Joint Criminal Enterprise
ii Encouragement
1 Planning
2 Ordering
3 Instigating
iii Assistance
1 Aiding and Abetting
2 Assisting in Commission of a Crime by a Group
iv Superior Responsibility
v Inchoate Offences
1 Attempt
2 Conspiracy
3 Incitement
b Conclusions
i Relevance to Attribution in the Law of State Responsibility
ii Identifying the Parameters of Modes of Attribution
iii Methodology and Sources of Law
Chapter 7 Rules of Attribution in the Law of State Responsibility
a Modes of Attribution
i State Organs
ii De Facto State Organs
iii Ultra Vires Conduct
iv Other Circumstances in which Conduct may be Attributable to the State
1 Instruction of the State or under Its Direction or Control
2 Exercise of Governmental Authority in the Absence of Official Authority
3 Insurrection
4 Conduct Acknowledged and Adopted by the State
b Conclusions
i Secondary Rules of General Applicability
ii Actions and Omissions
Chapter 8 Convergence and Divergence in Attribution
a Principles of Attribution: Culpability and Objectivity Distinguished
b Double Attribution
c International Crimes, Official Capacity, and Attribution to the State
d Crimes under International Law Performed in a Private Capacity
e Attribution to the State and Individual Immunity Ratione Materiae
Part 4 Responsibility
Chapter 9 Consequences
a Consequences of Individual Criminal Responsibility
i Purposes
ii Penalties
b Consequences of an Internationally Wrongful Act
i Consequences for the Responsible State
1 Cessation
2 Reparation
ii Consequences beyond the Responsible State
1 Serious Breaches
2 Third-State Consequences
A Non-recognition and Non-maintenance
B Cooperation
iii Standing
1 Common Legal Interest in Performance
2 Beneficiaries of Invocation of Responsibility
c Differentiation in Forms of Responsibility and Their Consequences
Chapter 10 Defenses
a Exclusion of Responsibility for Crimes under International Law
i Failure of Proof
ii Justification and Excuse
b Circumstances Precluding Wrongfulness for Internationally Wrongful Acts
c Points of Contact in Avoidance of Responsibility
Chapter 11 Jurisdiction
a Jurisdiction over Individuals under International Law
b Jurisdiction over States under International Law
c Divergence in Rules of Jurisdiction
Chapter 12 Immunity
a Immunity of Individuals under International Law
i Immunity Ratione Personae
1 International Courts and Tribunals
2 Domestic Courts
ii Immunity Ratione Materiae
1 International Courts and Tribunals
2 Domestic Courts
iii Inviolability
b State Immunity under International Law
c Corresponding Divergence in Rules of Immunity
Part 5 Duality of Responsibility in International Law
Chapter 13 The Legal Framework of Duality of Responsibility
a Individual Responsibility
b State Responsibility
c The Relationship between Individual and State Responsibility
i Breach
ii Attribution
iii Responsibility
Chapter 14 Conclusions
Index

Citation preview

Duality of Responsibility in International Law

Theory and Practice of Public International Law Series Editor Vincent Chetail

volume 5

The titles published in this series are listed at brill.com/​tppi

Duality of Responsibility in International Law The Individual, the State, and International Crimes By

Thomas Weatherall

LEIDEN | BOSTON

The Library of Congress Cataloging-​in-​Publication Data is available online at https://​catalog.loc.gov lc record available at https://​lccn.loc.gov/2021062734

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 2405-​6 847 isbn 978-​9 0-​0 4-​5 0536-​0 (hardback) isbn 978-​9 0-​0 4-​5 0537-​7 (e-​book) Copyright 2022 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau and V&R unipress. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

For Charlie

∵

Contents  Foreword xi  Preface xiv  Abbreviations xix  About the Author xx  Table of Cases xxi  Introduction 1

part 1 Parameters of Responsibility 1  Subjects of Responsibility under International Law 11 a  The State as a Subject of International Law 11 b  The Individual as a Subject of International Law 17 c  Duality of Responsibility in International Law 30 Primary and Secondary Rules 36 2  a  Primary Rules 38 i  Individual-​Directed Rules 38 ii  State-​Directed Rules 46 b  Secondary Rules 53 i  Distinguishing Secondary Rules of Individual and State Responsibility 53 ii  Secondary Rules of Individual Responsibility 58 iii  Secondary Rules of State Responsibility 58 iv  Associated Secondary Rules 59

part 2 Breach 3  Crimes under International Law 65 a  Elements of Individual Criminal Responsibility 65 i  The Objective Element 66 ii  The Subjective Element 68 b  An Element Approach to Crimes 74

viii Contents 4  Internationally Wrongful Acts 76 a  Elements of State Responsibility 76 b  Two Categories of Primary Rules 77 c  Concurrent State Responsibility 81 i  Peremptory Norms and Their Correlates 81 ii  Acta Jure Imperii 86 iii  Crimes of States 87 iv  Aggravated State Responsibility 90 d  Complementary State Responsibility 94 i  Obligations Erga Omnes 94 ii  Implications of Distinct Primary Rules 96 Breach and the Interaction of Primary and Secondary Rules 105 5  a  Relationship between Elements of Individual and State Responsibility 105 b  Sources of Law 113 c  Standards of Proof 117

part 3 Attribution 6  Rules of Attribution in International Criminal Law 133 a  Modes of Attribution 133 i  Commission 135 ii  Encouragement 142 iii  Assistance 149 iv  Superior Responsibility 155 v  Inchoate Offences 162 b  Conclusions 168 i  Relevance to Attribution in the Law of State Responsibility 169 ii  Identifying the Parameters of Modes of Attribution 171 iii  Methodology and Sources of Law 173 Rules of Attribution in the Law of State Responsibility 178 7  a  Modes of Attribution 179 i  State Organs 179 ii De Facto State Organs 182 iii Ultra Vires Conduct 185

Contents



iv  Other Circumstances in which Conduct may be Attributable to the State 188 b  Conclusions 194 i  Secondary Rules of General Applicability 195 ii  Actions and Omissions 197

Convergence and Divergence in Attribution 202 8  a  Principles of Attribution: Culpability and Objectivity Distinguished 202 b  Double Attribution 207 c  International Crimes, Official Capacity, and Attribution to the State 215 d  Crimes under International Law Performed in a Private Capacity 221 e  Attribution to the State and Individual Immunity Ratione Materiae 224

part 4 Responsibility 9  Consequences 231 a  Consequences of Individual Criminal Responsibility 231 i  Purposes 231 ii  Penalties 235 b  Consequences of an Internationally Wrongful Act 237 i  Consequences for the Responsible State 237 ii  Consequences beyond the Responsible State 245 iii  Standing 249 c  Differentiation in Forms of Responsibility and their Consequences 254 Defenses 261 10  a  Exclusion of Responsibility for Crimes under International Law 261 i  Failure of Proof 262 ii  Justification and Excuse 265 b  Circumstances Precluding Wrongfulness for Internationally Wrongful Acts 269 c  Points of Contact in Avoidance of Responsibility 272

ix

x Contents 11  Jurisdiction 279 a  Jurisdiction over Individuals under International Law 279 b  Jurisdiction over States under International Law 284 c  Divergence in Rules of Jurisdiction 286 Immunity 290 12  a  Immunity of Individuals under International Law 290 i  Immunity Ratione Personae 290 ii  Immunity Ratione Materiae 295 iii  Inviolability 304 b  State Immunity under International Law 307 c  Corresponding Divergence in Rules of Immunity 310

part 5 Duality of Responsibility in International Law 13  The Legal Framework of Duality of Responsibility 317 a  Individual Responsibility 318 b  State Responsibility 324 c  The Relationship between Individual and State Responsibility 335 i  Breach 336 ii  Attribution 338 iii  Responsibility 341 Conclusions 345 14   Index 353

Foreword Who bears responsibility when international law is violated? Until quite recently, all too often, the tragic answer was “nobody.” Before World War ii, the conventional wisdom among traditional public international lawyers was that, generally speaking, individuals were not subject to responsibility for even the most egregious violations of international law. Under certain circumstances, States could be held responsible, but they generally pleaded ignorance of their nationals’ most heinous acts. And corollary responsibility of States for war crimes was virtually unknown. Before the landmark war crimes trials at Nuremberg, a genocidal actor could claim he was “just following orders,” even while the head of State was claiming both ignorance and immunity. As a result, we were all members of an ironically named “international community” that was incapable of either preventing, or pursuing accountability, for the worst atrocities human beings can inflict upon one another. The post-​World War ii war crimes trials dramatically shifted the valence from impunity to responsibility. By holding both governmental leaders and direct perpetrators responsible for genocide and crimes against humanity, and rejecting the “just following orders” defense, the Nuremberg and Tokyo Tribunals dissolved the legal shields of the world that came before. Instead, these tribunals substituted the modern principle of duality of responsibility—​ that both States and individuals may incur responsibility for the most serious violations of international law. Today, duality of responsibility has been accepted as a given and a major advance for modern international law, in terms of both legal substance and legal process. Substantive contemporary international law now recognizes the shared interests of the international community as a whole in protecting the human person from such acts as genocide and torture, which are prohibited in all places at all times. These are recognized as crimes erga omnes, against all, and those who commit them are treated as hostes humani generis, enemies of all mankind. As a matter of legal process, duality of responsibility multiplies the potential avenues for relief, so that individuals may be held criminally responsible under international law for violating these rules, while States simultaneously face responsibility before various fora for promoting such violations. The trend toward duality of responsibility in international law thus reflects an innovative substantive and procedural convergence among branches of international law that had previously been considered distinct: international human rights law, international criminal law, and the law of State responsibility.

xii Foreword That all may sound fine as an academic matter, but how, exactly, does the law enforce this duality of responsibility? I have long argued that it is myopic to ask only how states enforce international law rules horizontally against one another in international arenas. A broader perspective, rooted in what I call “transnational legal process,” asks instead the vertical question: how do myriad public and private transnational actors trigger interactions that lead to legal interpretations that can then be internalized or domesticated into domestic legal systems and “obeyed” by individuals and governments out of the resulting sense of domestic legal obligation?1 Such enforcement through transnational legal process has become a familiar feature of modern international human rights law, but it enjoys deep historical roots. Long before Nuremberg, pirates and slave traders who could escape capture in any particular jurisdiction, as well as their State sponsors, were similarly pursued by lawyers who triggered interactions, that won judicial interpretations that piracy was both an international and domestic crime, that eventually made them pariahs and criminals in national jurisdictions around the world. While many have commented on the broad theoretical relationship between individual and State responsibility in international law, until now, surprisingly little has been written about the “technical” relationship between individual and State responsibility in relation to crimes under international law: how the rules of international law relevant to both individual and State responsibility overlap, intersect, and thread together to develop a tapestry of rules that operate effectively to redress these international crimes. In this impressive volume, Dr. Thomas Weatherall fills that void with a richly detailed and comprehensive historical and jurisprudential analysis. Dr. Weatherall’s study builds on the transnational legal process framework to explain how national systems have come to respect international norms of great importance to the international community. He identifies two key features of the legal rules subject to duality of responsibility: first, their recognition by the international community as a whole as jus cogens norms from which no derogation is permitted; and second, the realization of these rules through their common internalization by members of the international community. In an earlier, thoughtful book, Dr. Weatherall likened such rules to a

1 See, e.g., Harold Hongju Koh, How is International Human Rights Law Enforced?, 74 Indiana Law Journal 1397 (1999); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal 2599 (1997); Harold Hongju Koh, Transnational Legal Process, 75 Nebraska Law Review 181 (1996).

Foreword

xiii

kind of international social contract—​reflecting common interests and expectations of States as members of an international community.2 Yet Dr. Weatherall’s current study focuses less on this utopian vision and more intently on its legal failure. He turns a sharp lens on the rules and mechanisms that operate when the process of dual responsibility breaks down—​ where crimes under international law are nevertheless perpetrated, as is often the case, in connection with the abuse of State power. The book canvasses the important and complex legal issues that must be faced by those who seek to achieve accountability for international crimes, and offers an invaluable practical resource for international human rights lawyers, international criminal lawyers, and public international lawyers both inside and outside of governments. Dr. Weatherall’s book will provide an important tool in our collective fight against impunity for those responsible for international crimes. His words enjoy the credibility of a well-​read British-​trained international law theorist and scholar of global governance and diplomacy, who is currently a skilled practicing human rights lawyer for the United States Department of State. As someone who has worked closely with Dr. Weatherall in his governmental capacity, I was both delighted and inspired to understand more fully the deep intellectual and scholarly roots of his legal acumen. His academic yet practical, lawyerly yet humanistic book will be welcomed by both scholars and practitioners who seek to challenge the worst of the worst. By doing so, the worlds of theory and practice collaborate to advance responsibility for combatting violations of norms that strike at the very core of who we are as an international community. Harold Hongju Koh3 New Haven and Oxford November 2021 2 Thomas Weatherall, Jus Cogens: International Law and Social Contract (Cambridge: cup 2015). 3 Sterling Professor of International Law and former Dean (2004–​09), Yale Law School; U.S. Assistant Secretary for Democracy, Human Rights and Labor (1998–​2001); Legal Adviser (2009–​13), Senior Advisor (2021–​), Office of the Legal Adviser, U.S. Department of State; George Eastman Visiting Professor, Oxford University (2021–​22).

Preface That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. International Military Tribunal (Nuremberg), Judgment and Sentences (Oct. 1, 1946), reprinted in 41(1) ajil 172, 220 (1947)

… The Court observes that that duality of responsibility continues to be a constant feature of international law. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, p. 43, para. 173

∵ It is appropriate to introduce this monograph with passages from the International Court of Justice, a court assessing the international responsibility of a State, and the International Military Tribunal at Nuremberg, a tribunal adjudging individual criminal responsibility under international law, each invoking the principle of duality of responsibility. Within a system of law that “governs relations between independent States,”1 which generally excludes the individual as a subject of responsibility, it is not unremarkable that international law arrived at this juncture. Today, it is unsurprising that courts and tribunals assessing responsibility in relation to international crimes have concerned themselves with its multidimensional character. This attention is founded in considerations of both principle and practice. As a factual matter, crimes under international law are performed in many, if not most, instances through abuse of State authority. Crawford, for example, observes that “[i]‌t is characteristic of the worst crimes of the period since 1930 that they have been committed within and with the assistance of State structures.”2 Accordingly, accountability in relation to crimes under international law often implicates the responsibility of both individuals and States.

1 The Case of the S.S. “Lotus,” pcij, Series A, No. 10, Judgment No. 9, 18 (Sept. 7, 1927). 2 First Report on State Responsibility (James Crawford, Special Rapporteur), at 22, para. 89. See also Gerhard Werle and Florian Jessberger, Principles of International Criminal

Preface

xv

The evolution of international criminal law may itself be viewed as the product of progressive efforts to hold State actors responsible for the most serious violations of international law. From the international criminal tribunals following the Second World War, through the subsequent ad hoc international criminal tribunals, and arguably to the establishment of a permanent ­international criminal court, the development of mechanisms to prosecute international crimes—​and those prosecuted by them—​have in many instances been a reaction to abuse of State authority. Conversely, the responsibility of the State in relation to crimes under international law is referential to individual criminal conduct. Establishing State responsibility for a crime under international law calls for an assessment of the elements of that crime such that those elements, which establish a violation of international law by an individual, are necessary and sufficient to establish a breach of that same rule for purposes of State responsibility. While this relationship is explicit in the attribution of international crimes to the State, it also operates implicitly in the context of associated obligations of the State related to the prevention and punishment of international crimes: breach of such obligations is dependent, inter alia, upon the State’s failure to prevent and punish criminal conduct in performance of those obligations. These linkages between individual and State responsibility with respect to crimes under international law are central to duality of responsibility. Duality of responsibility continues to be a major focus of international law. Proceedings instituted by The Gambia in 2019 against Myanmar before the icj and the investigation by the Office of the Prosecutor of the International Criminal Court of international crimes in Myanmar are illustrative not only of the principle of duality but also of its complex character.3 Notably, invocation Law 44 (Oxford: 3d ed. oup 2014) (“Crimes under international law typically, though not necessarily, presume state participation.”); Elies van Sliedregt, Individual Criminal Responsibility in International Law 5 (Oxford: oup 2012) (“The organized and collective nature of crimes often suggests state involvement.”); Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13(3) ejil 561, 589 (2002) (“The criminality which has been regarded as the most serious in the history of international criminal law, and which the icty, the ictr and the icc are primarily meant to target, is normally committed in connection with the exercise of state power.”). 3 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, i.c.j. Reports 2020, p. 3 (hereinafter, “Application of the Genocide Convention (2020)”); Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar, icc-​01/​19-​27, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Nov. 14, 2019).

xvi Preface of Myanmar’s responsibility by The Gambia before the icj is based on a range of alleged breaches of the Genocide Convention, while the investigation by the icc Office of the Prosecutor is focused on possible crimes against humanity of deportation and persecution. Therefore, ongoing proceedings concerning individual and State responsibility in relation to abuses of Rohingya do not overlap. Moreover, unlike the genocide cases before the icj concerning the Balkan conflict, the Myanmar case before the icj has no prior prosecutions of individuals for international crimes to which to look as a point of reference, and the prospect at present of any such prosecutions for genocide appears, at least by the icc, unlikely. In effect, a decision by the icj in the Myanmar case may be the only one that renders findings and assigns responsibility specific to genocide in Myanmar. This potential for piecemeal realization of dual responsibility illustrates a broader structural reality, which is that the institutions and legal frameworks that operationalize duality of responsibility remain diffuse and uncoordinated. Courts and tribunals of all strata and composition—​international, regional, domestic, and hybrid—​adjudicate breaches of rules subject to duality of responsibility and, in so doing, interpret and apply the same or interrelated sets of rules. Compounding this disorganization, the subsets of courts and tribunals competent respectively to adjudge State responsibility and individual criminal responsibility are generally mutually exclusive. With regard to State responsibility, it bears emphasizing that contentious cases before the icj, the principal judicial organ of the United Nations, are dependent upon the invocation of the responsibility of a breaching State by another State. For an aggrieved State, as for example in the cases concerning the Balkan conflict, such invocation of responsibility may resemble a form self-​ help. What appears to be more common, however, is that such proceedings are initiated by States without any “special interest” in performance of the obligations at issue. For example, in Questions Relating to the Obligation to Prosecute or Extradite, Belgium was not required to establish any special interest in Senegal’s performance of its obligations under the Torture Convention with respect to the prosecution of Hissène Habré in order to proceed with its case against Senegal.4 The common legal interest of States parties to the Torture Convention was sufficient to entitle Belgium to invoke Senegal’s responsibility for breach of its obligations erga omnes. In its 2020 Application of the Genocide Convention provisional measures order, the icj went further in this

4 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012, p. 422, paras. 69–​70.

Preface

xvii

regard to state explicitly that no special interest was necessary for The Gambia to invoke Myanmar’s responsibility for breach of obligations erga omnes under the Genocide Convention.5 In this same vein, invocation by Canada and The Netherlands of the responsibility of Syria for breaches of the Torture Convention may be a precursor to invocation of the jurisdiction of the icj under Article 30 of the Torture Convention.6 This tendency for invocation of State responsibility to be detached from any form of damage or special interest by the invoking State may be a reflection of the nature of the obligations at issue: the proximately aggrieved entity may, more often than not, be the people of the State whose responsibility is at issue. The upshot of this state of affairs is a kind of laissez-​faire approach to the promotion of State responsibility in the context of duality.7 Turning to individual responsibility for crimes under international law, we see a similar picture. With the notable exception of the work of the icc and hybrid and ad hoc international courts and tribunals—​which are themselves both exceptional and limited (and increasingly so)—​disorganization also persists in relation to individual criminal responsibility, particularly with respect to domestic legal systems. Prosecution of individuals allegedly responsible for international crimes is increasingly the purview of domestic rather than international courts.8 This relation is explicit in the Rome Statute, which contemplates that the icc is complementary to national criminal jurisdictions.9 The same proposition is a feature of obligations to prosecute or extradite, found for example in relevant multilateral instruments, which direct States to take such action in relation to alleged perpetrators of international crimes, regardless of whether a traditional basis upon which to exercise jurisdiction pertains. In this regard, universality is also generally accepted as a principle of

5 Application of the Genocide Convention (2020), para. 41. 6 See Joint statement of Canada and the Kingdom of the Netherlands regarding their cooperation in holding Syria to account (Mar. 12, 2021), available at https://​www.gov​ernm​ent. nl/​docume​nts/​dip​loma​tic-​sta​teme​nts/​2021/​03/​12/​joint-​statem​ent-​of-​can​ada-​and-​the-​king​ dom-​of-​the-​neth​erla​nds-​regard​ing-​their-​coop​erat​ion-​in-​hold​ing-​syria-​to-​acco​unt. 7 To be sure, other treaty bodies may be relevant to adjudication of State responsibility in relation to crimes under international law, for example, as regards performance of associated obligations under multilateral instruments. 8 See Anne-​Marie Slaughter & William Burke-​White, The Future of International Law is Domestic (or, The European Way of Law), 47(2) Harvard International Law Journal 327, 339–​340 (2006). 9 Rome Statute of the International Criminal Court, Article 1, U.N. Doc. a/​c onf.183/​9 (1998), 2187 u.n.t.s. 90 (July 17, 1998, entered into force July 1, 2002), reprinted in 37(5) ilm 999 et seq. (1998).

xviii Preface jurisdiction under customary international law with respect to international crimes. While paradigmatic examples of the exercise of universal jurisdiction are well known—​the prosecution of Adolf Eichmann by Israel and proceedings involving Augusto Pinochet initiated by Spain are but two—​practice indicates a diverse and expanding application of the principle of universality by domestic legal systems.10 The current system encourages domestic authorities to prosecute individuals for crimes under international law, underscoring the decentralized character of accountability for such crimes which, in some cases, might resemble a form of vigilantism. While these observations might be interpreted as a critique, their intent is to identify certain prevailing features of duality of responsibility in contemporary practice. States play a central, and in many ways unilateral, role in promoting accountability for both individuals and States with respect to crimes under international law. It also remains, however, that a diverse range of actors have a potential part to play in effectuating responsibility for individuals and States in relation to international crimes. And, in this context, the decisions of courts prosecuting individuals for international crimes may have direct bearing on those adjudging State responsibility, and possibly vice versa. Countervailing forces of disaggregation and interdependence are unifying themes across these aspects of dual responsibility. Given this, a comprehensive understanding of the rules associated with individual and State responsibility—​and in particular the ways in which their operation is unique and interrelated in the context of duality of responsibility—​is essential to the coherence of international law as it is applied across this shared legal space. This monograph offers a roadmap to help navigate the landscape of duality of responsibility in international law. Finally, and importantly, a number of acknowledgements are in order. My scholarship continues to be influenced deeply by those from whom I have had the privilege to learn, recognized in other works but no less important to this one. The editors of the Theory and Practice of Public International Law series provided helpful suggestions for which I am grateful. I am indebted to Matt Olmsted and Miles Jackson for their insightful comments on an earlier draft of this monograph. And I am thankful for the unwavering support and patience of my family, especially Emily. Thomas Weatherall Washington, D.C. November 2021 10

Cf. Máximo Langer and Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30(3) ejil 779, 784–​790 (2019).

Abbreviations c acj e ac e ccc ECtHR e ecc IACtHR i cc i cj i ctr i cty i lc i mt m ict p cij s csl s tl UN u nga u nsc a jil c up e jil i clq i lm i lr j icj l rtwc o up r iaa YbILC

Central American Court of Justice Extraordinary African Chambers Extraordinary Chambers in the Courts of Cambodia European Court of Human Rights Eritrea-​Ethiopia Claims Commission Inter-​American Court of Human Rights International Criminal Court International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission International Military Tribunal International Residual Mechanism for Criminal Tribunals Permanent Court of International Justice Special Court for Sierra Leone Special Tribunal for Lebanon United Nations United Nations General Assembly United Nations Security Council American Journal of International Law Cambridge University Press European Journal of International Law International and Comparative Law Quarterly International Legal Materials International Law Reports Journal of International Criminal Justice Law Reports of Trials of War Criminals Oxford University Press Reports of International Arbitral Awards Yearbook of the International Law Commission

About the Author Dr. Weatherall is an Attorney-​Adviser in the Office of the Legal Adviser for Human Rights and Refugees of the U.S. Department of State. He has served as an Alternate Representative in the U.S. Mission to the Organization of American States and in that capacity represented the United States before the Inter-​American Court of Human Rights and the Inter-​American Commission on Human Rights. He has also served as Adviser and Expert Negotiator in the U.S. Mission to the United Nations, where he represented the United States in delegations to the U.N. General Assembly Third Committee. Dr. Weatherall is a member of the Editorial Advisory Committee of International Legal Materials, published by the American Society of International Law. He holds a J.D. from Georgetown University, a Ph.D. in International Law from Cambridge University, an M.Sc. in Global Governance and Diplomacy from the University of Oxford, and a B.A. in International Studies from the Johns Hopkins University. The views expressed herein are the author’s own and not necessarily those of the Department of State or the U.S. Government.

Table of Cases

Permanent Court of International Justice

Case Concerning Certain German Interests in Polish Upper Silesia (Merits), Series A, Judgement No. 7 (May 25, 1926). The Case of the S.S. “Lotus,” Series A, No. 10, Judgment No. 9 (Sept. 7, 1927). Factory at Chorzów (Jurisdiction), Series A, No. 9, Judgment No. 8 (July 26, 1927). Factory at Chorzów (Merits), Series A, No. 17, Judgment No. 13 (Sept. 13, 1928). The Mavrommatis Palestine Concessions, Series A, Judgment No. 2 (Aug. 30, 1924). Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Series A/​B, No. 44, Advisory Opinion (Feb. 4, 1932). Questions relating to Settlers of German Origin in Poland, Series B, Advisory Opinion No. 6 (Sept. 10, 1923).

International Court of Justice

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010, p. 403. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Counter-​claims, Order of 17 December 1997, i.c.j. Reports 1997, p. 243. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, p. 43. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment, i.c.j. Reports 1996, p. 595. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, i.c.j. Reports 1993, p. 3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, i.c.j. Reports 1993, p. 325. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, i.c.j. Reports 2015, p. 3.

xxii 

Table of Cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, i.c.j. Reports 2020, p. 3. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 168. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 2006, p. 6. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 1 July 2015, i.c.j. Reports 2015, p. 580. Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, i.c.j. Reports 2004, p. 12. Barcelona Traction, Light and Power Company, Limited, Judgment, i.c.j. Reports 1970, p. 3. Case of the monetary gold removed from Rome in 1943 (Preliminary Question), Judgment of June 15th, 1954, i.c.j. Reports 1954, p. 19. Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure Order of 17 June 2003, i.c.j. Reports 2003, p. 102. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, p. 177. Corfu Channel Case (United Kingdom v. Albania), Judgment, i.c.j. Reports 1949, p. 4. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, i.c.j. Reports 1999, p. 62. East Timor (Portugal v. Australia), Judgment, i.c.j. Reports 1995, p. 90. Elettronica Sicula S.p.A. (elsi), Judgment, i.c.j. Reports 1989, p. 15. Gabčíkovo-​Nagymaros Project (Hungary /​Slovakia), Judgment, i.c.j. Reports 1997, p. 7. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, i.c.j. Reports 2012, p. 99. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, i.c.j. Reports 1971, p. 16. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 136. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, i.c.j. Reports 2019, p. 95. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996, p. 226.

Table of Cases

xxiii

LeGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, i.c.j. Reports 1999, p. 9. LeGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 466, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1984, p. 392. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, p. 14. Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), Judgment of April 6th, 1955, i.c.j. Rep. 1955, p. 4. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, i.c.j. Reports 2003, p. 161. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010, p. 14. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, i.c.j. Reports 1962, p. 319. South West Africa, Second Phase, Judgment, i.c.j. Reports 1966, p. 6. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012, p. 422. United States Diplomatic and Consular Staff in Tehran, Judgment, i.c.j. Reports 1980, p. 3.

Arbitral Awards

Case concerning the differences between New Zealand and France arising from the Rainbow Warrior affair, Ruling of 6 July 1986 by the Secretary-​General of the United Nations. Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, Decision of 30 April 1990. Dadras International, et al. v. Islamic Republic of Iran, et al., Iran-​U.S. Claims Tribunal, Award No. 567-​213/​215-​2 (Nov. 7, 1995). Eritrea-​Ethiopia Claims Commission—​Partial Award: Prisoners of War—​ Eritrea’s Claim 17, Decision of 1 July 2003. Eritrea-​Ethiopia Claims Commission—​Partial Award: Prisoners of War—​ Ethiopia’s Claim 4, Decision of 1 July 2003.

xxiv 

Table of Cases

Kenneth P. Yeager v. The Islamic Republic of Iran, Iran-​U.S. Claims Tribunal, Partial Award No. 324-​10199-​1 (Nov. 2, 1987). Oil Fields of Texas v. Government of the Islamic Republic of Iran, Iran-​U.S. Claims Tribunal, Award No. 258-​43-​i (Oct. 8, 1986).

European Court of Human Rights

Al-​ Adsani v. United Kingdom, ECtHR (Grand Chamber), No. 35763/​ 97, Judgment (Nov. 21, 2001). Guiso-​Gallisay v. Italy, ECtHR (Grand Chamber), No. 58858/​00, Judgment (Just satisfaction) (Dec. 22, 2009). Husayn (Abu Zubaydah) v. Poland, ECtHR (Fourth Section), No. 7511/​13, Judgment (July 24, 2014). Ireland v. United Kingdom, ECtHR (Plenary), No. 5310/​71, Judgment (Jan. 18, 1978). Jones v. United Kingdom, ECtHR (Fourth Section), Nos. 34356/​06 & 40528/​06, Judgment (Jan. 14, 2014). Kalogeropoulou v. Greece and Germany, ECtHR (First Section), No. 59021/​00, Decision (Dec. 12, 2002). Ould Dah v. France, ECtHR (Fifth Section), No. 13113/​ 03, Judgment (Admissibility) (Mar. 30, 2009).

Inter-​American Court of Human Rights

Case of Cruz Sánchez et al. v. Perú, Judgment of April 17, 2015, (Ser. C) No. 292 (Preliminary Objections, Merits, Reparations and Costs). Case of Myrna Mack Chang v. Guatemala, Judgment of November 25, 2003, (Ser. C) No. 101 (Merits, Reparations, and Costs). Case of Plan de Sánchez Massacre v. Guatemala, Judgment of April 29, 2004, (Ser. C) No. 105 (Merits). Case of Gómez-​Paquiyauri Brothers v. Perú, Judgment of July 8, 2004, (Ser. C) No. 110 (Merits, Reparations and Costs). Velasquez Rodriguez Case, Judgment of July 21, 1989, (Ser. C) No. 7 (Compensatory Damages (Art. 63(1) American Convention on Human Rights)). Velasquez Rodriguez Case, Judgment of July 29, 1988, (Ser. C) No. 4.

Table of Cases



xxv

Extraordinary Chambers in the Courts of Cambodia

Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement (July 26, 2010). Ieng et al., 002/​19-​09-​2007-​e ccc/​o cij (ptc 38), Decision on the Appeals Against the Co-​Investigative Judges Order on Joint Criminal Enterprise (jce) (May 20, 2010). Ieng et al., 002/​19-​09-​2007-​e ccc/​o cij (ptc 145 & 146), Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order (Feb. 15, 2011). Nuon and Khieu, 002/​19-​09-​2007/​e ccc/​t c, Case 002/​01 Judgement (Aug. 7, 2014). Perreira, 34/​2003, Judgement (Apr. 27, 2005).

International Criminal Court

Al Bashir, icc-​02/​05-​01/​09, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011). Al Bashir, icc-​02/​05-​01/​09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (Apr. 9, 2014). Al Bashir, icc-​02/​05-​01/​09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (Mar. 4, 2009). Al Bashir, icc-​02/​05-​01/​09, Decision Pursuant to Article 87(7) of the Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011). Al Bashir, icc-​02/​05-​01/​09, Judgement in the Jordan Referral re Al-​Bashir Appeal (May 6, 2019). Al Bashir, icc-​02/​05-​01/​09, Second Warrant of Arrest for Oman Hassan Ahmad Al Bashir (July 12, 2010). Al Bashir, icc-​02/​05-​01/​09, Warrant of Arrest for Oman Hassan Ahmad Al Bashir (Mar. 4, 2009). Banda and Jerbo, icc-​02/​05-​03/​09, Corrigendum of the “Decision on the Confirmation of Charges” (Mar. 7, 2011). Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo (June 15, 2009).

xxvi 

Table of Cases

Bemba, icc-​01/​05-​01/​08, Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber iii’s “Judgment pursuant to Article 74 of the Statute” (June 8, 2018). Bemba, icc-​01/​05-​01/​08, Judgement pursuant to Article 74 of the Statute (Mar. 21, 2016). Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute (Oct. 19, 2016). Bemba et al., icc-​01/​05-​01/​13 A6 A7 A8 A9, Judgement on the appeals of the Prosecutor, Mr Jean-​Pierre Bemba Gombo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber vii entitled “Decision on Sentence pursuant to Article 76 of the Statute” (Mar. 8, 2018). Chui, icc-​01/​04-​02/​12 A, Judgement on the Prosecutor’s appeal against the decision of Trial Chamber ii entitled “Judgement pursuant to article 74 of the Statute” (Apr. 7, 2015). Gaddafi et al., icc-​ 01/​ 11-​ 01/​ 11, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-​Islam Gaddafi and Abdullah Al Senussi” (June 27, 2011). Gbagbo, icc-​02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo (June 12, 2014). Gbagbo, icc-​02/​11-​01/​11, Warrant of Arrest for Laurent Koudou Gbagbo (Nov. 23, 2011). Katanga, icc-​01/​04-​01/​07, Judgment pursuant to article 74 of the Statute (Mar. 7, 2014). Katanga and Chui, icc-​01/​04-​01/​07, Decision on the confirmation of charges (Sept. 30, 2008). Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges (Jan. 29, 2007). Lubanga, icc-​01/​04-​01/​06, Judgement pursuant to Article 74 of the Statute (Mar. 14, 2012). Lubanga, icc-​01/​04-​01/​06 A 5, Judgement on the appeal of Mr Thomas Lubanga Dyilo against his conviction (Dec. 1, 2014). Mbarushimana, icc-​01/​41-​01/​10, Decision on the confirmation of charges (Dec. 16, 2011). Mudacumura, icc-​01/​04-​01/​12, Decision on the Prosecutor’s Application under Article 58 (Jul. 13, 2012). Muthaura et al., icc-​01/​09-​02/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012). Ongwen, icc-​02/​04-​01/​15, Decision on the confirmation of charges against Dominic Ongwen (Mar. 23, 2016).

Table of Cases

xxvii

Ongwen, icc-​02/​04-​01/​15, Decision on Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute (Apr. 5, 2019). Ntaganda, icc-​01/​04-​02/​06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda (June 9, 2014). Ruto et al., icc-​01/​09-​01/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012). Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar, icc-​01/​19-​27, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Nov. 14, 2019).

International Criminal Tribunal for Rwanda

Akayesu, ictr-​96-​4-​a , Judgement (June 1, 2001). Akayesu, ictr-​96-​4-​t, Judgement (Sept. 2, 1998). Bagilishema, ictr-​95-​1a-​a , Judgement (July 3, 2002). Bagilishema, ictr-​95-​1a-​t, Judgement (June 7, 2001). Bagosora and Nsengiyumva, ictr-​98-​41-​a (Dec. 14, 2011). Bizimungu et al., ictr-​99-​50-​t, Judgement and Sentence (Sept. 30, 2011). Gacumbtsi, ictr-​2001-​64-​a , Judgement (July 7, 2006). Gacumbtsi, ictr-​2001-​64-​t, Judgement (June 17, 2004). Gatete, ictr-​00-​61-​a , Judgement (Oct. 9, 2012). Kalimanzira, ictr-​05-​88-​a , Judgement (Oct. 20, 2010). Kamuhanda, ictr-​99-​54a-​a , Judgement (Sept. 19, 2005). Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence (Jan. 22, 2003). Kanyarukiga, ictr-​2002-​78-​t, Judgement and Sentence (Nov. 1, 2010). Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence (Feb. 2, 2012). Karera, ictr-​01-​74-​t, Judgement and Sentence (Dec. 7, 2007). Kayishema and Ruzindana, ictr-​95-​1-​a , Judgement (June 1, 2001). Kayishema and Rusindana, ictr-​95-​1-​t, Judgement (May 21, 1999). Munyakazi, ictr-​97-​36a-​a , Judgement (Sept. 28, 2011). Musema, ictr-​96-​13-​t, Judgement and Sentence (Jan. 27, 2000). Muvunyi, ictr-​00-​55a-​t, Judgement and Sentence (Sept. 12, 2006). Nahimana et al., ictr-​99-​52-​a , Judgement (Nov. 28, 2007). Nahimana et al., ictr-​99-​52-​t, Judgement and Sentence (Dec. 3, 2003).

xxviii 

Table of Cases

Ndahimana, ictr-​01-​68-​a , Judgement (Dec. 16, 2013). Ndindabahizi, ictr-​01-​71-​a , Judgement (Jan. 16, 2007). Ngirabatware, ictr-​99-​54-​t, Judgement and Sentence (Dec. 20, 2012). Ntagerura et al., ictr-​99-​46-​a , Judgement (July 7, 2006). Ntagerura et al., ictr-​99-​46-​t, Judgement and Sentence (Feb. 25, 2004). Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement (Dec. 13, 2004). Ntakirutimana and Ntakirutimana, ictr-​96-​10-​t and ictr-​96-​17-​t, Judgement (Feb. 21, 2003). Ntawukulilyayo, ictr-​05-​82-​a , Judgement (Dec. 14, 2011). Nyiramasuhuko et al., ictr-​98-​42-​a , Judgement (Dec. 14, 2015). Nzabonimana, ictr-​98-​44d-​a , Judgement (Sept. 29, 2014). Renzaho, ictr-​97-​31-​t, Judgement and Sentence (July 14, 2009). Rutaganda, ictr-​96-​3-​a , Judgement (May 26, 2003). Rutaganira, ictr-​95-​1c-​t, Judgement and Sentence (Mar. 14, 2005). Rwamakuba, ictr-​98-​44-​a r72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide (Oct. 22, 2004). Semanza, ictr-​97-​20-​a , Judgement (May 30, 2005). Semanza, ictr-​97-​20-​t, Judgement and Sentence (May 15, 2003). Seromba, ictr-​2001-​66-​a , Judgement (Mar. 12, 2008). Serushago, ictr-​98-​39-​s , Sentence (Feb. 5, 1999). Setako, ictr-​04-​81-​a , Judgement (Sept. 28, 2011).

International Criminal Tribunal for the former Yugoslavia

Aleksovski, it-​95-​14/​1-​a , Judgement (Mar. 24, 2000). Aleksovski, it-​95-​14/​1-​t, Judgement (June 25, 1999). Blagojević and Jokić, it-​02-​60-​a , Judgement (May 9, 2007). Blagojević and Jokić, it-​02-​60-​t, Judgement (Jan. 17, 2005). Blaškić, it-​95-​14-​a , Judgement (July 29, 2004). Blaškić, it-​95-​14-​a , Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997 (Oct. 29, 1997). Blaškić, it-​95-​14-​t, Judgement (Mar. 3, 2000). Brđanin, it-​99-​36-​a , Appeal Judgement (Apr. 3, 2007). Brđanin, it-​99-​36-​t, Judgement (Sept. 1, 2004). D. Milošević, it-​98-​29/​1-​a , Judgement (Nov. 12, 2009). Delalić et al., it-​96-​21-​a , Judgement (Feb. 20, 2001). Delalić et al., it-​96-​21-​t, Judgement (Nov. 16, 1998).

Table of Cases

xxix

Erdemović, it-​96-​22-​a , Judgement (Oct. 7, 1997). Erdemović, it-​96-​22-​t, Sentencing Judgement (Nov. 29, 1996). Furundžija, it-​95-​17/​1-​a , Judgement (July 21, 2000). Furundžija, it-​95-​17/​1-​t, Judgement (Dec. 10, 1998). Galić, it-​98-​29-​a , Judgement (Nov. 30, 2006). Galić, it-​98-​29-​t, Judgement and Opinion (Dec. 5, 2003). Hadžihasanović and Kubura, it-​01-​47-​a , Judgement (Apr. 22, 2008). Halilović, it-​01-​48-​a , Judgement (Oct. 16, 2007). Halilović, it-​01-​48-​t, Judgement (Nov. 16, 2005). Haradinaj et al., it-​04-​84bis-​t, Judgement (Nov. 29, 2012). Karadžić, it-​95-​5/​18-​t, Public Redacted Version of Judgement Issued on 24 March 2016 (Mar. 24, 2016). Kordić and Čerkez, it-​95-​14/​2-​a , Judgement (Dec. 17, 2004). Kordić and Čerkez, it-​95-​14/​2-​t, Judgement (Feb. 26, 2001). Krajišnik, it-​00-​39-​a , Appeal Judgement (Mar. 17, 2009). Kristić, it-​98-​33-​a , Decision on Application for Subpoenas (July 1, 2003). Kristić, it-​98-​33-​a , Judgement (Apr. 19, 2004). Kristić, it-​98-​33-​t, Judgement (Aug. 2, 2001). Krnojelac, it-​97-​25-​a , Judgement (Sept. 17, 2003). Krnojelac, it-​97-​25-​t, Judgement (Mar. 15, 2002). Kupreškić et al., it-​95-​16-​t, Judgement (Jan. 14, 2000). Kunarac et al., it-​96-​23-​t & it-​96-​23/​1-​t, Judgement (Feb. 22, 2001). Kvočka et al., it-​98-​30/​1, Decision on Interlocutory Appeal by the Accused Zoran Zigic against the Decision of Trial Chamber i dated 5 December 2000 (May 25, 2001). Kvočka et al., it-​98-​30/​1-​a , Judgement (Feb. 28, 2005). Kvočka et al., it-​98-​30/​1-​t, Judgement (Nov. 2, 2001). Martić, it-​95-​11-​a , Judgement (Oct. 8, 2008). Milošević et al., it-​99-​37, Decision on Review of Indictment and Application for Consequential Orders (May 24, 1999). Milošević et al., it-​99-​37, Indictment (May 22, 1999). Milutinović et al., it-​05-​87-​t, Judgement, Vol. 1 (Feb. 26, 2009). Milutinović et al., it-​99-​37-​a r72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—​Joint Criminal Enterprise (May 21, 2003). Milutinović et al., it-​99-​37-​p t, Decision on Motion Challenging Jurisdiction (May 6, 2003). Mrða, it-​02-​59-​s , Amended Indictment (Aug. 4, 2003). Mrkšić and Šljivančanin, it-​95-​13/​1-​a , Judgement (May 5, 2009). Naletilić & Martinović, it-​98-​34-​t, Judgement (Mar. 31, 2003). Nikolić, it-​02-​60/​1-​s , Sentencing Judgement (Dec. 2, 2003).

xxx 

Table of Cases

Orić, it-​03-​68-​t, Judgement (June 30, 2006). Orić, it-​03-​68-​t, Oral Decision Rendered Pursuant to Rule 98bis in the Orić Case (June 8, 2005). Perišić, it-​04-​81-​a , Judgement (Feb. 28, 2013). Perišić, it-​04-​81-​t, Judgement (Sept. 6, 2011). Popović et al., it-​05-​88-​a , Appeal Judgement (Jan. 30, 2015). Prlić et al., it-​04-​74-​a , Decision on Application by the Republic of Croatia for Leave to Appear as Amicus Curiae and to Submit Amicus Curiae Brief (July 18, 2016). Šianović et al., it-​05-​87-​a , Judgement (Jan. 23, 2014). Simić, it-​95-​9-​a , Judgement (Nov. 28, 2006). Simić et al., it-​95-​9-​t, Judgement (Oct. 17, 2003). Stakić, it-​97-​24-​a , Judgement (Mar. 22, 2006). Stakić, it-​97-​24-​t, Judgement (July 31, 2003). Stanišić and Simatović, it-​03-​69-​a , Judgement (Dec. 9, 2015). Stanišić and Župljanin, it-​08-​91-​a , Judgement (June 30, 2016). Stanišić and Župljanin, it-​08-​91-​t, Judgement (Mar. 27, 2013). Tadić, it-​94-​1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995). Tadić, it-​94-​1-​a , Judgement (July 15, 1999). Tadić, it-​94-​1-​a and it-​94-​1-​a bis, Judgement in Sentencing Appeals (Jan. 26, 2000). Tadić, it-​94-​1-​t, Opinion and Judgement (May 7, 1997). Tolimir, it-​05-​88/​2-​t, Judgement (Dec. 12, 2012). Vasiljević, it-​98-​32-​a , Judgement (Feb. 25, 2004). Vasiljević, it-​98-​32-​t, Judgment (Nov. 29, 2002).

International Residual Mechanism for Criminal Tribunals

Šešelj, mict-​16-​99-​a , Judgement (Apr. 11, 2018).

Special Court for Sierra Leone

Brima et al., scsl-​04-​16-​a , Judgment (Mar. 3, 2008). Brima et al., scsl-​04-​16-​t, Judgment (June 20, 2007). Fofana and Kondewa, scsl-​04-​14-​a , Judgment (May 28, 2008). Fofana and Kondewa, scsl-​04-​14-​t, Judgment (Aug. 2, 2007). Taylor, scsl-​03-​01-​a , Judgment (Sept. 26, 2013).

Table of Cases

xxxi

Taylor, scsl-​03-​01-​i , Decision on Immunity from Jurisdiction (May 31, 2004). Taylor, scsl-​03-​01-​t, Judgement (May 18, 2012).

Special Tribunal for Lebanon

stl-​11-​01/​i , Interlocutory Decision on the Applicable Law (Feb. 16, 2011).

wwii War Crimes Trials

International Military Tribunal (Nuremberg), Judgment and Sentences (Oct. 1, 1946). Trial of Wilhelm Gerbsch, The Special Court in Amsterdam, First Chamber (Apr. 28, 1948). Trial of Wilhelm List and Others (“The Hostages Trial”), United States Military Tribunal, Nuremberg (July 8, 1947—​Feb. 19, 1948).

Domestic Cases

Australia R. v. Tang, High Court, [2008] hca 39 (Aug. 28, 2008). Belgium Re Sharon and Yaron, H.S.A. v. S.A. (Ariel Sharon) and Y.A. (Amos Yaron), Court of Cassation, No. P.02.1139.F/​2 (Feb. 12, 2003). Canada Bouzari v. Islamic Republic of Iran, Court of Appeal for Ontario, 243 d.l.r. 4th 406 (June 30, 2004). R. v. Sault Ste. Marie, [1978] 2 scr 1299 (May 1, 1978). France Bucheron v. Germany, Cour de cassation, No. 02-​45961 (Dec. 16, 2003). Ely Ould Dah, Cour d’assises (Nîmes), No. 70/​05 (Arrêt de condamnation) (July 1, 2005). Ely Ould Dah, Cour d’assises (Nîmes), No. 71/​05 (Arrêt statuant due les intérêts civils) (July 1, 2005). Gaddafi, Chambre d’accusation (Paris) (Oct. 20, 2000).

xxxii 

Table of Cases

Gaddafi, Cour de cassation, No. 00-​87215 (Mar. 13, 2001). Réunion Aérienne v. Socialist People’s Libyan Arab Jamahiriya, Cour de cassation, No. 09-​14743 (Mar. 9, 2011). Germany Judgment in Case of Lieutenants Dithmar and Boldt (Hospital Ship “Llandovery Castle”), Imperial High Court (July 16, 1921). Greece Margellos v. Federal Republic of Germany, Anotato Eidiko Dikastirio [Special Supreme Court], No. 6/​2002 (Sept. 17, 2002). Prefecture of Voiotia v. Federal Republic of Germany, Areios Pagos [Supreme Court], No. 11/​2000 (May 4, 2000). Israel Attorney-​General v. Eichmann, District Court of Jerusalem, Crim. Case No. 40/​ 61 (Dec. 12, 1961). Attorney-​General v. Eichmann, Supreme Court, Crim. Appeal No. 336/​61 (May 29, 1962). Italy Federal Republic of Germany v. Prefecture of Voiotia, Corte di cassazione, No. 11163/​2011 (Jan. 12, 2011). Ferrini v. Germany, Corte di cassazione, No. 5044/​2004 (Mar. 11, 2004). Frascà v. Germany and Giachini (guardian of Priebke) and Italy (joining), Corte di cassazione, No. 4284/​2013 (Feb. 21, 2013). Germany v. Mantelli and ors, Corte di cassazione, No. 14201/​2008 (May 29, 2008). Germany v. Milde, Corte di cassazione, No. 1072/​2009 (Jan. 13, 2009). Military Prosecutor v. Albers and ors and Germany (joining), Corte di cassazione, No. 32139/​2012 (Aug. 9, 2012). Kenya Attorney General & 2 others v. Kenya Section of International Commission of Jurists, Court of Appeal (Nairobi), Criminal Appeal No. 274 of 2011, Judgment, [2018] eKLR (Feb. 16, 2018). The Netherlands Bouterse Case, Amsterdam Court of Appeal, Petition Nos. R 97/​163/​12 Sv & R 97/​176/​12 Sv (Nov. 20, 2000).

Table of Cases

xxxiii

Poland Natoniewski v. Germany, Supreme Court, No. iv csk 465/​09 (Oct. 29, 2010). Senegal Hissène Habré Request, Court of Appeal of Dakar, Judgment of 25 November 2005. Slovenia A.A. v. Germany, Ustavno sodišče [Constitutional Court], Up-​13/​99-​24 (Mar. 8, 2001). South Africa The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Supreme Court of Appeal, No. 867/​15, [2016] zasca 17 (Mar. 15, 2016). Spain Guatemala Genocide Case, Constitutional Court, Judgment No. 237/​2005 (Sep. 26, 2005). Switzerland A v. Office of the Attorney General of Switzerland, Federal Criminal Court, No. bb.2011.140, A, Bundesstrafgericht [BStR] (July 25, 2012). United Kingdom Jones v. Ministry of the Interior of Saudi Arabia and Lieutenant Colonel Abdul Aziz, House of Lords, [2006] ukhl 26, [2007] 1 All er 113 (June 14, 2006). Miller v. Minister of Pensions, [1947] 2 All er 372, [1947] ljr 203 (July 27, 1947). R. v. Dudley and Stephens (Mignonette Case), 14 qbd 273 (Dec. 9, 1884). R. v. Bartle and the Commission of Police for the Metropolis and Others, Ex Parte Pinochet, [1998] ukhl 41, [2000] 1 ac 61 (Nov. 25, 1998). R. v. Bartle and the Commission of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] ukhl 17, [2000] 1 ac 147 (Mar. 24, 1999). United States Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990). Colorado v. New Mexico, 467 U.S. 310 (1984). Ewing v. California, 538 U.S. 11 (2003). Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Hilton v. Guyot, 159 U.S. 113 (1895).

xxxiv 

Table of Cases

In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1992). In re Winship, 397 U.S. 358 (1970). Morissette v. United States, 342 U.S. 246 (1952). Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994). Sampson v. Federal Republic of Germany, 250 F.3d 1145 (7th Cir. 2001). Schooner Exchange v. McFaddon, 11 U.S. 116 (1812). Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992). Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996). The Trials of Major Stede Bonnet, and Thirty-​three others, at the Court of Vice-​ Admiralty, at Charles-​Town, in South-​Carolina, for Piracy, 5 George i (1718). Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) cert. denied, 134 S. Ct. 897 (2014).

Introduction The responsibility of individuals and that of States under international law are generally regarded as independent systems.1 Each is a distinct form of responsibility, governed by a different set of secondary rules.2 Taking note of fundamental differences between these two fields of responsibility, the icj observed—​

1 See, e.g., Katja Creutz, State Responsibility in the International Legal Order: A Critical Appraisal 34–​37 (Cambridge: cup 2020) (describing that the evolution of individual and State responsibility “into two different systems is marked by ample acceptance of the separate and independent existence of the two regimes.”); Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 221 (Leiden: Martinus Nijhoff 2009) (observing that “state responsibility and international criminal law are in principle regarded as separate regimes under international law. … Undoubtedly, international practice shows a certain tendency to keep state responsibility separate from individual liability.”); Andrea Bianchi, State Responsibility and Criminal Liability of Individuals, in Antonio Cassese [Ed.], The Oxford Companion to International Criminal Justice 16 (Oxford: oup 2009) (“A quick look at recent practice is sufficient to realize that state responsibility and individual criminal responsibility are considered as distinct in international law.”); Vladimir-​Djuro Degan, Responsibility of States and Individuals for Genocide and other International Crimes, in Isabelle Buffard et al. [Eds.], International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner 511 (Leiden: Martinus Nijhoff 2008) (describing, in view of the Rome Statute of the icc and the ilc Articles on State Responsibility, “a tendency to rigidly separate the issues of State responsibility and of criminal responsibility of individuals into two autonomous sets of rules of international law.”); Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 631, 641 (2007) (noting “there are reasons to believe that the two forms of responsibility are fully independent of each other from the start” (emphasis in original)); Antônio Augusto Cançado-​Trindade, Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited, in Maurizio Ragazzi [Ed.], International Responsibility Today: Essays in Memory of Oscar Schachter 268 (Leiden: Martinus Nijhoff 2005) (describing “the persistent compartmentalized approach to the international responsibility of the State and the international criminal responsibility of individuals.”); Daniel Bodansky and John R. Crook, Symposium: The ILC’s State Responsibility Articles: Introduction and Overview, 96(4) ajil 773, 788 (2002) (describing savings clauses of the Articles on State Responsibility, including Article 58, as “dividing walls between the different systems”). 2 The distinction between primary and secondary rules is attributed to Hart, who defines law as “a system of primary rules that direct and appraise conduct together with secondary rules about how to identify, enforce, and change the primary rules.” See H.L.A. Hart, The Concept of Law xv (Oxford: 3d ed. oup 2012). See also id. at 81. See discussion infra, Chapter 2 (Primary and Secondary Rules).

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2 Introduction State responsibility and individual criminal responsibility are governed by different legal régimes and pursue different aims. The former concerns the consequences of the breach by a State of the obligations imposed upon it by international law, whereas the latter is concerned with the responsibility of an individual as established under the rules of international and domestic criminal law, and the resultant sanctions to be imposed upon that person.3 The separability of these two forms of responsibility does not, however, dictate that they and their concomitant secondary rules necessarily operate in isolation from one another. To the contrary, it has been observed that it “would be misleading to assert that these two regimes never intersect or overlap.”4 In this sense, the context in which the icj was compelled to draw a clear delineation between these two forms of responsibility is equally important: the court was assessing consequences for the State arising from crimes under international law committed by individuals. The consequences that may arise in the field of State responsibility in relation to those arising for the individual under international law represent a point of contact between individual and State responsibility that broadly defines what may be referred to as duality of responsibility in international law.5 Duality of responsibility is a function of a phenomenon perhaps first articulated—​or at least first authoritatively asserted—​by the imt in its major war criminals judgment: “international law imposes duties and liabilities upon individuals as well as upon States.”6 The applicability of primary rules to both the individual and the State enables a departure from the generally binary character of responsibility under international law that results from attribution of unlawful conduct to either the State or the individual from the standpoint of

3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, i.c.j. Reports 2015, p. 3, para. 129 (hereinafter, “Application of the Genocide Convention (2015)”). 4 Jérôme de Hemptinne et al., Cross-​Cutting Issues, in Jérôme de Hemptinne et al. [Eds.], Modes of Liability in International Criminal Law 2 (Cambridge: cup 2019); Andrea Bianchi, State Responsibility and Criminal Liability of Individuals, in Antonio Cassese [Ed.], The Oxford Companion to International Criminal Justice 16 (Oxford: oup 2009). 5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, p. 43, para. 173 (hereinafter, “Application of the Genocide Convention (2007)”). 6 International Military Tribunal (Nuremberg), Judgment and Sentences (Oct. 1, 1946), reprinted in 41(1) ajil 172, 220 (1947) (hereinafter, “imt Judgment and Sentences (1946)”).

Introduction

3

international law.7 A necessary consequence of this departure is that secondary rules governing individual and State responsibility come into contact as they operationalize duality of responsibility, which in many instances may be observed to impact their application in ways that are unique to the primary rules that give rise to such duality. This duality, limited to a narrow category of primary rules with application to both individuals and States, was recognized by the icj some sixty years after the imt judgment to be “a constant feature of international law.”8 The responsibility of individuals under international law is unique to a particular category of primary rules, the violation of which is defined to constitute a crime under international law. That such primary rules give rise to ­individual criminal responsibility may be viewed as a product of the seriousness with which the international community regards their breach. The imt, for example, defined an international crime as “such an act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances.”9 These features of international crimes continue to inform the substantive content of international criminal law. Another critical aspect of crimes under international law is their frequently close linkage to the exercise of State authority. As Crawford notes, “[i]‌t is a characteristic of the worst crimes of the period since 1930 that they have been committed within and with the assistance of

7 See, e.g., Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 43 (Oxford: 3d ed. oup 2014) (“The addressee of international criminal law is the individual, not the state. Thus, international criminal law deviates from the traditional model of international law, according to which, under the rules of so-​called ‘state responsibility’, the consequences of conduct that violates international law can affect only the state, but not an individual.” (internal citations omitted)); Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, [1994 iii] 247 Recueil Des Cours 82 (Leiden: Martinus Nijhoff 1994) (“States are artificial legal persons: they can only act through the institutions and agencies of the State, which means, ultimately, through its officials and other individuals acting on behalf of the State. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal State and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice. The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law.”). 8 Application of the Genocide Convention (2007), para. 173. 9 Trial of Wilhelm List and Others (“The Hostages Trial”), United States Military Tribunal, Nuremberg (July 8, 1947—​Feb. 19, 1948), 8 lrtwc 34, 54 (London: His Majesty’s Stationery Office 1949) (hereinafter, “Hostages Trial (1948)”).

4 Introduction State structures.”10 Therefore, the responsibility of the State arising in relation to that of the individual for international crimes is a matter of significant import. A number of the most important decisions by the icj over the past two decades have addressed aspects of State responsibility arising in relation to individual criminal responsibility,11 and such duality continues to be a major subject of focus in international law.12 It has been observed that an understanding of this duality of responsibility is underdeveloped, particularly with regard to the responsibility of States, in contrast to the extensive treatment of international criminal law.13 This may reflect a practical reality that international criminal law is the primary focus of responsibility for crimes under international law; it may also be due, at least in part, to the fairly well-​delineated character of the secondary rules governing State responsibility,14 as compared to secondary rules in the field of international criminal law. However, neither the subsidiary character of State responsibility to that of individuals for crimes under international law, nor the general acceptance of the secondary rules of State responsibility, obviates the need to examine the interaction and interdependence of the rules governing individual and State responsibility as they operate in parallel, and at times in reference to one another. To the contrary, these aspects of State responsibility,

10

11

12

13 14

First Report on State Responsibility (James Crawford, Special Rapporteur), para. 89, U.N. Doc. a/​c n.4/​490 and Add.1-​7, [1998] ii(2) YbILC 1 et seq., at 22, U.N. Doc. a.cn.4/​s er.a/​ 1998/​Add.1 (Part 1) (hereinafter, “First Report on State Responsibility (James Crawford, Special Rapporteur)”). See also Werle and Jessberger 2014, op. cit. 44 (“Crimes under international law typically, though not necessarily, presume state participation.”). See, e.g., Application of the Genocide Convention (2015); Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012, p. 422 (hereinafter, “Questions relating to the Obligation to Prosecute or Extradite (2012)”); Application of the Genocide Convention (2007). See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, i.c.j. Reports 2020, p. 3 (hereinafter, “Application of the Genocide Convention (2020)”); Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar, icc-​ 01/​19-​27, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Nov. 14, 2019). See, e.g., André Nollkaemper, Systemic Effects of International Responsibility for International Crimes, 8(1) Santa Clara Journal of International Law 313, 315–​316 (2010); Bonafè, op. cit. 6. See ilc Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/​56/​10, Report of the International Law Commission on the Work of its Fifty-​Third Session, [2001] ii(2) YbILC 26 et seq., U.N. Doc. a/​c n.4/​s er.a/​2001/​Add.1 (Part 2) (hereinafter, “ilc Articles on State Responsibility”).

Introduction

5

and the operation of its secondary rules in relation to individual criminal responsibility, necessitate such analysis. As one scholar has noted, “[t]‌he relationship of the state vis-​à-​vis the individual and of state responsibility vis-​à-​vis individual responsibility is anything but simple.”15 Treating the fields of individual and State responsibility as “compartmentalized,” “rigidly separate,” and subject to “dividing walls” forecloses an understanding of their interrelation with respect to primary rules of international law that give rise to duality of responsibility.16 Developing an understanding of interrelation between the secondary rules governing individual and State responsibility is particularly important where courts and tribunals of all strata and composition—​international, regional, domestic, and hybrid—​adjudicate breaches of primary rules subject to duality of responsibility and, in so doing, interpret and apply the same or inter­ related sets of primary and secondary rules. Courts and tribunals operating in this shared legal space have nevertheless rigorously defended their autonomy, even where duality of responsibility is implicated.17 These conditions are ripe for fragmentation, a risk often found lurking in international law as a result of increasing institutional and substantive diversification.18 However, as this

15 16 17

18

Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13(3) ejil 561, 588 (2002). See supra, n. 1. See, e.g., Kvočka et al., it-​98-​30/​1, Decision on Interlocutory Appeal by the Accused Zoran Zigic against the Decision of Trial Chamber i dated 5 December 2000, paras. 17–​18 (May 25, 2001) (“No legal basis exists for suggesting that the International Tribunal must defer to the International Court of Justice such that the former would be legally bound by decisions of the latter. … [T]‌he International Tribunal has its own competence. … As a result the International Tribunal may arrive at different conclusions, and differences in holdings may occur.”); accord. Delalić et al., it-​96-​21-​a , Judgement, para. 24 (Feb. 20, 2001) (“this Tribunal is an autonomous international judicial body, and although the icj is the ‘principal judicial organ’ within the United Nations system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion.”). See also Application of the Genocide Convention (2007), para. 403 (“The Court has given careful consideration to the Appeals Chamber’s reasoning … but finds itself unable to subscribe to the Chamber’s view. … [T]he Court attaches the utmost importance to the factual and legal findings made by the icty in ruling on the criminal liability of the accused before it. … The situation is not the same for positions adopted by the icty on issues of general international law which do not lie within the specific purview of its jurisdiction[.]”). Cf. Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (Finalized by Martti Koskenniemi), U.N. Doc. a/​c n.4/​l .682 (Apr. 13, 2006).

6 Introduction monograph demonstrates, the potential for fragmentation arising in the area of dual responsibility is at least equally matched by the opportunity for convergence in relevant primary and secondary rules.19 To that end, this monograph consolidates the secondary rules in the fields of both individual and State responsibility in a single resource. Such consolidation enables a critical analysis of cross-​cutting issues underlying the complexity of duality of responsibility in international law. By defining the secondary rules governing individual and State responsibility relevant to dual responsibility, and assessing points of contact in their operation, this monograph seeks to contribute to convergence in the international law of dual responsibility. Part 1 of this monograph introduces legal concepts that delineate the parameters of duality of responsibility in international law. Chapter 1 begins by identifying the State and the individual as subjects of responsibility under international law and, with this background, defines the concept of duality of responsibility as it arises in international law. Chapter 2 identifies the primary rules that give rise to individual responsibility as well as those that give rise to State responsibility in relation to that of the individual. This chapter also introduces the secondary rules that operationalize dual responsibility, to include the rules respectively governing individual and State responsibility, as well as categories of secondary rules closely associated with the operation of the rules of responsibility in this context, which are broadly defined to refer to consequences, defenses, jurisdiction, and immunity. Part 2 examines the concept of breach and, in particular, the application of this concept to primary rules that give rise to dual responsibility in international law. Chapter 3 examines crimes under international law and sets out the element approach to international crimes (i.e., the objective and subjective elements). Chapter 4 examines the concept of internationally wrongful acts. This chapter distinguishes the secondary rules of State responsibility from those of individual criminal responsibility and identifies the elements of State responsibility (i.e., breach and attribution). This chapter then examines the two ways in which State responsibility may arise for breaches of international obligations arising from primary rules directed at the State in the context of dual responsibility, i.e., (i) State responsibility ensuing from attribution of 19

See, e.g., Mads Andenas and Eirik Bjorge, Introduction: from fragmentation to convergence in international law, in Mads Andenas and Eirik Bjorge [Eds.] A Farewell to Fragmentation: Reassertion and Convergence in International Law 1–​3 (Cambridge: cup 2015). See also Andreas L. Paulus, Jus Cogens in a Time of Hegemony and Fragmentation: An Attempt at a Re-​appraisal, 74 Nordic Journal of International Law 297, 332 (2005).

Introduction

7

conduct constituting an international crime, such that State responsibility is concurrent with individual responsibility for that same conduct, and (ii) State responsibility ensuing for breaches of obligations in relation to primary rules from which individual criminal responsibility may arise, which responsibility is complementary to individual responsibility for underlying criminal conduct. Chapter 5 addresses issues arising from the interaction of secondary rules of individual and State responsibility in the area of breach. These issues include the impact of the application of different sources of law upon the question of breach for purposes of each form of responsibility, the relationship between the elements of breach in individual and State responsibility, and questions arising from applicable standards of proof where individual and State responsibility are assessed for the same underlying conduct. Part 3 examines the concept of attribution for purposes of individual and State responsibility with a view toward assessing double attribution, i.e., the operation of secondary rules to attribute conduct to both the individual and the State for purposes of responsibility under international law. Chapter 6 identifies the modes of attributing individual responsibility under international criminal law. These modalities are organized principally into categories of commission, encouragement, assistance, and superior responsibility. Chapter 7 presents the rules of attribution in the law of State responsibility. These rules are organized as those applicable to State organs, de facto State organs, ultra vires conduct, and other circumstances in which conduct may be attributable to the State. This chapter considers in particular practice applying these secondary rules of attribution for purposes of State responsibility in relation to criminal conduct attributed to the individual through the operation of the rules identified in the previous chapter. Chapter 8 examines convergence and divergence in the secondary rules of attribution for purposes of individual and State responsibility. This chapter begins by assessing fundamental differences in principles of culpability and objectivity that respectively animate the secondary rules of attribution in the fields of individual and State responsibility. This chapter then probes the concept of double attribution, a departure from the generally binary character of responsibility under international law that makes possible duality of responsibility. Also considered are the implications of the characterization of individual criminal conduct for purposes of its attributability to the State and, corollarily, how attributability of individual criminal conduct to the State impacts the operation of secondary rules of immunity in the context of dual responsibility. Part 4 examines secondary rules closely related to aspects of responsibility and which inform the operation of those examined in the previous parts. Chapter 9 identifies the consequences of responsibility and distinguishes

8 Introduction between the those arising from individual criminal responsibility and those arising from an internationally wrongful act for breach of a primary rule giving rise to dual responsibility under international law. Chapter 10 considers the issue of defenses and evaluates similarities and differences in the operation of secondary rules governing exclusion of responsibility for crimes under international law and circumstances precluding wrongfulness for internationally wrongful acts. Chapter 11 compares the secondary rules of jurisdiction over individuals and States under international law and, in particular, how the operation of these secondary rules applies and diverges in the context of adjudication of breaches of primary rules that may give rise to duality of responsibility. Chapter 12 assesses the secondary rules governing the immunity of individuals and States under international law in relation to the primary rules giving rise to dual responsibility and reconciles divergence in the operation of these secondary rules in this context. Part 5 consolidates the analysis developed in the previous parts to present the legal framework of duality of responsibility in international law. Chapter 13 articulates how primary and secondary rules operate in relation to the responsibility of the individual and that of the State in this context and defines the relationship between individual and State responsibility. Chapter 14 provides concluding observations on duality of responsibility in international law.

pa rt 1 Parameters of Responsibility

∵

­c hapter 1

Subjects of Responsibility under International Law a

The State as a Subject of International Law

The international law of State responsibility is best contextualized as a product of the Peace of Westphalia and the structure of international relations to which it gave rise. The organization of the international community into equal, sovereign States with law running between them is a hallmark of the contemporary international legal order based on the Westphalian system.1 Within this system, the State was long understood to exist as the exclusive subject of international law.2 International law as a system so comprised of States as legal subjects is defined by legal positivism.3 From the late nineteenth century through the middle of the twentieth century, the composition of international law was strictly informed by positivism.4 Positivism presupposes a formal source of law—​i.e., a sovereign—​from which law derives its validity and authority.5 International law, it follows, consists of rules and obligations created by sovereign States.6 The pcij famously described this state of affairs in S.S. Lotus: 1

Clyde Eagleton, The Responsibility of States in International Law 6 (New York: New York University Press 1928) (“Gradually, the state appeared, as a personality distinct from its members. Upon this entity, whose appearance is usually dated from the Peace of Westphalia, international law conferred rights and duties, with corresponding responsibility.”); Leo Gross, The Peace of Westphalia, 1648–​1948, 42(1) ajil 20, 29 (1948) (“This new system rests on international law and the balance of power, a law operating between rather than above states and a power operating between rather than above states.”). 2 See, e.g., Lassa Oppenheim, I International Law, A Treatise § 289 (London: Longmans, Green and Co. 2d ed. 1912) (“Since the Law of Nations is a law between States only and exclusively, States only and exclusively are subjects of the Law of Nations.” (internal citation omitted)). 3 John Austin, Lectures on Jurisprudence, or, The Philosophy of Positive Law (London: John Murray, Robert Campbell [Ed.], 3d ed. 1869); Hans Kelsen, General Theory of Law and State (Cambridge (MA): Harvard University Press 1949); H.L.A. Hart, The Concept of Law (Oxford: 3d ed. oup 2012). See Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34(2) ajil 260 (1940). 4 Morgenthau, op. cit. 263 (“Ever since the turn of the century, internationalists have started with positivist assumptions, have followed the positivist method, and have professed adherence to the principles of positivism.”). 5 Austin, op. cit. 81, 87–​88. 6 George Manner, The Object Theory of the Individual in International Law, 46(3) ajil 428, 428 n. 1 (1952) (“Subjective positivism, because these jurists allege that a subjective factor,

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12 

Chapter 1

International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-​existing independent communities or with a view to the achievement of common aims.7 Even if contemporary international law now admits subjects of rights and duties in addition to the State—​notably, for present purposes, the individual—​it remains that international law is broadly defined by the parameters of legal positivism and recognition of the State as the principal subject of international law.8 For instance, the State, as the principal subject of international law, is also the main author of international law.9 This is reflected in Article 38 of the icj Statute, which identifies the formal sources of international law.10 Treaties governed by international law are defined as those establishing rules by consenting States.11 Customary international law is the product of opinio juris evidenced

7

8 9 10

11

will or consent of, or recognition by states, provides the immediate or juridical foundation for the obligation of positive international law.”). The Case of the S.S. “Lotus,” pcij, Series A, No. 10, Judgment No. 9, 18 (Sept. 7, 1927) (hereinafter, “S.S. “Lotus” (1927)”). Accord, e.g., Eagleton, op. cit. 5 (“Recognizing no common superior, states have mutual consent as the basis for their rules of conduct; and no new rule may be enforced upon a state without its own individual agreement to that rule. Membership in the community of nations, however, presupposes the acceptance of the existent rules of that community; and it is upon this agreement to observe the rules of the community that international responsibility is founded.”). See discussion infra, Chapter 1.b (The Individual as a Subject of International Law). Accord., e.g., S.S. “Lotus” (1927), 18. See, e.g., James Crawford [Ed.], Brownlie’s Principles of Public International Law 6–​7, 19–​21 (Oxford: 9th ed. oup 2019); Malcolm Shaw, International Law 52 (Cambridge: 8th ed. cup 2017) (attributing this as a consequence of membership in the United Nations of all States which, by virtue of Article 93 of the Charter, are therefore all parties to the icj Statute). Statute of the International Court of Justice, 33 u.n.t.s. 993, Article 38(1)(a) (June 26, 1945, entered into force Oct. 24, 1945) (hereinafter, “icj Statute”) (“international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”); Vienna Convention on the Law of Treaties, 1155 u.n.t.s. 331, Article 2(a) (May 23, 1969, entered into force Jan. 27, 1980) (defining “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”) (hereinafter, “Vienna Convention on the Law of Treaties”). States are not, however, presumed to be the exclusive authors of international agreements: see, e.g., Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, U.N. Doc. a/​c onf.129/​15 (Mar. 21, 1986).

Subjects of Responsibility under International Law

13

by the practice of States.12 And general principles of law are those recognized, inter alia, by States.13 While further examination of the formal sources of international law is beyond the scope of this monograph, such examination is not, in any event, necessary to demonstrate that the formal sources of international law are inextricably linked to the principal subject of international law. From the standpoint of the State as the author of international law, it follows that the principal subject of obligations arising from the formal sources of international law is also the State.14 Although the primacy of the State has remained constant throughout the development of international law, the way in which obligations under international law have been enforced—​and, in particular, the consequences for breach of such obligations—​has evolved dramatically. Until the early twentieth century, the enforcement of international law obligations was viewed as a “system of sanctions based upon self-​help.”15 International law lacked an organized structure of dispute settlement or mechanism for redressing violations of international obligations.16 According to Oppenheim at the time, “[t]‌he only legal consequences of an international delinquency that are possible under existing international law are such as create reparation of the moral and material wrong done.”17 And, it followed, that “[t]he only rule which is unanimously

12

icj Statute, Article 38(1)(b) (“international custom, as evidence of a general practice accepted as law”); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, p. 14, paras. 183–​186 (“The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice.”) (hereinafter, “Military and Paramilitary Activities in and against Nicaragua (1986)”); North Sea Continental Shelf (Federal Republic of Germany /​ Denmark; Federal Republic of Germany /​Netherlands), Judgment, i.c.j. Reports 1969, p. 3, para. 77 (hereinafter, “North Sea Continental Shelf (1969)”). 13 icj Statute, Article 38(1)(c) (“the general principles of law recognized by civilized nations”). Cf. ilc First Report on General Principles of Law (Marcelo Vázquez-​Bermúdez, Special Rapporteur), U.N. Doc. a/​c n.4/​732, esp. Draft Article 2 (Apr. 5, 2019) (“For a general principle of law to exist, it must be generally recognized by States.”). 14 Accord., e.g., S.S. “Lotus” (1927), p. 18. 15 Eagleton, op. cit. 224; Amos J. Peaslee, The Sanction of International Law, 10(2) ajil 328, 335–​336 (1916). 16 Id. See also Elihu Root, The Outlook for International Law, 10(1) ajil 1, 5 (1916) (lamenting this state of affairs following World War i: “Laws to be obeyed must have sanctions behind them; that is to say, violations of them must be followed by punishment. That punishment must be caused by power superior to the law breaker; it can not consist merely in the possibility of being defeated in a conflict with an enemy; otherwise there would be no law as between the strong and the weak.”). 17 Lassa Oppenheim, I International Law § 156 (London: Longmans, Green and Co. 3d ed. 1920).

14 

Chapter 1

recognised by theory and practice is that out of an international delinquency arises a right for the wronged State to request from the delinquent State the performance of such expiatory acts as are necessary for a reparation of the wrong done.”18 There were various peaceful methods recognized to be available to States to settle such disputes between themselves.19 Failing such peaceable means of resolution, the aggrieved State was entitled to resort to reprisals or war.20 This primitive method of enforcing responsibility under international law was aptly summarized during the period in the following terms: As there is no superior authority to which a state can appeal for redress when any of its sovereign rights have been trespassed upon, denied, or impeded in their exercise, it is compelled, as a last resort, to redress its own injury, or wrong. This it does by a suspension of all friendly relations with the offending state, and by a resort to such acts of hostility as are authorized by the laws of war.21 This anarchic method of dispute settlement may be viewed as a foreseeable product of a system of law defined in terms of the sovereignty of States. The development of an international law of State responsibility can be viewed as a reaction to this mode of dispute settlement characterized by 18 19

Id. George B. Davis, The Elements of International Law 250 (New York: Harper & Brothers 4th ed. 1916) (identifying adjustment, mediation, and arbitration). 20 See, e.g., Oppenheim (1920), op. cit. § 156 (“When the delinquent State refuses reparation for the wrong done, the wronged State can exercise such means as are necessary to enforce an adequate reparation. In cases of international delinquencies committed in time of peace, such means are reprisals (including embargo and pacific blockade) and war, as the case may require. On the other hand, in case of international delinquencies committed in time of war through illegitimate acts of warfare on the part of a belligerent, such means are reprisals and the taking of hostages.” (internal citations omitted)). See similarly Davis, op. cit. 262 (“Between the peaceable methods of adjusting international disputes … and an actual resort to force, lie certain measures of redress of a more serious character. These methods presume the existence of a cause of difference between two states justifying a departure from the normal relations existing between the nations in time of peace, and the measures adopted at times involve the use of violence or force; but, even when exercised to an extreme degree, they fall short of open or public war. They are only resorted to when redress has been asked for and denied, and are justifiable only when the offending nation acts with full knowledge, and persists in doing injustice even after its attention has been repeatedly drawn to its wrongful acts. The measures of redress involving the use of forcible or hostile methods are susceptible of classification under one of two heads—​retorsion and reprisals.”). 21 Davis, op. cit. 271.

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15

“irresponsible sovereignty.”22 This more contemporary form of dispute resolution began to take shape following establishment of the League of Nations,23 with its constituent Permanent Court of International Justice,24 and the renunciation of war as a policy instrument by the Kellogg-​Briand Pact.25 The recognition of a law of State responsibility can itself also be rationalized in terms of the sovereignty of co-​equal States. Eagleton accounted for a system in which States are bound by rules of responsibility as a product of the expansion and consolidation of territorial sovereignty: The exclusive territorial control enjoyed by a state under international law is attended by a corresponding responsibility. … This exclusive territorial control, which is a legal possession of the state, logically results in the acceptance by that state of responsibility for illegal acts occurring within the range of its control. If one nation allows to another a monopoly of jurisdiction within the boundaries of the latter, and thereby excludes itself from the possibility of protecting its own rights therein, this can only be upon the assumption that the latter state makes itself responsible for all internationally illegal acts committed within its control against the former state. … The exclusive territorial jurisdiction of the state, which is a concomitant of its independence, is the chief source of its responsibility.26 Therefore, just as international dispute settlement prior to the League of Nations based in “self-​help” may be explained in terms of State sovereignty, so too can a system based in State responsibility. The development of the law of State responsibility can be understood to follow from the expansion and consolidation of the sovereign power of the State.

22 Eagleton, op. cit. 206. Cf. James Crawford, State Responsibility: The General Part 25–​26 (Cambridge: cup 2013). 23 Covenant of the League of Nations (June 28, 1919, entered into force Jan. 10, 1920). 24 Id., Article 14 (“The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.”). 25 Convention Providing for the Renunciation of War as an Instrument of National Policy (Kellogg-​Briand Pact) (Aug. 27, 1928, entered into force July 24, 1929). 26 Eagleton, op. cit. 6–​7 (internal citations omitted). Accord. Hall, op. cit. 45 (“The exclusive force possessed by the will of an independent community within the territory occupied by it is necessarily attended with corresponding responsibility.”).

16 

Chapter 1

Following Second World War, the UN General Assembly tasked the ilc with codification of the rules of State responsibility, on the basis that “it is desirable for the maintenance and development of peaceful relations between States that the principles of international law governing State responsibility be codified.”27 The content of this new law of State responsibility was developed largely by arbitral tribunals of the period and is generally regarded as the province of customary international law.28 Preparatory work began shortly thereafter and the ilc project was concluded by finalization of its Draft Articles on State Responsibility in 2001,29 of which the UN General Assembly took note the following year.30 Today, then, the accepted modalities of enforcement of international responsibility have evolved and the peaceful settlement of disputes is a cornerstone of the contemporary international legal system.31 A broad array of international organs now exist to adjudge State responsibility for breaches of international law and the consequences thereof, from treaty bodies with specific ratione materiae competence, to the icj, the principal judicial organ of the United Nations.32 The jurisdiction of the icj is defined, for example, to include matters submitted to it by States concerning “the existence of any fact which, if established, would constitute a breach of an international obligation” and, in turn, “the nature or extent of the reparation to be made for the breach of an international obligation.”33 The law of State responsibility consists in secondary rules defining the conditions under which international law imposes consequences for breaches of

27 28

29 30 31 32 33

unga Resolution 799 (viii) (Request for the codification of the principles of international law governing State responsibility), U.N. Doc. A/​Res/​799(viii) (Dec. 7, 1953). This is reflected, for example, in the commentary of the ilc Articles on State Responsibility, which relies extensively upon such arbitral practice as a source of the generally accepted secondary rules of State responsibility. Many of the provisions of the ilc Articles on State Responsibility have been recognized as reflecting customary international law. See, e.g., Application of the Genocide Convention (2015), para. 128 (“Article 3 of the ilc Articles on State Responsibility, which reflects a rule of customary law, states that ‘[t]‌he characterization of an act of a State as internationally wrongful is governed by international law’.”); Application of the Genocide Convention (2007), para. 401 (“This is the state of customary international law, as reflected in the ilc Articles on State Responsibility.”). ilc Articles on State Responsibility. unga Resolution 56/​83 (Responsibility of States for internationally wrongful acts), U.N. Doc. A/​Res/​56/​83 (Jan. 28, 2002). Charter of the United Nations, 1 u.n.t.s. xvi, Article 1(1) (June 26, 1945, entered into force Oct. 24, 1945) (hereinafter, “UN Charter”). icj Statute, Article 1. icj Statute, Article 36(2).

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the obligations of States. State responsibility in international law is defined in terms of internationally wrongful acts. According to the Draft Articles on State Responsibility, there is an internationally wrongful act of a State when conduct, constituting an act or omission, “is attributable to the State under international law” and “constitutes a breach of an international obligation of the State.”34 An internationally wrongful act is therefore the result of a breach of a primary rule of international law that is attributable to the State, which thereby engages the international responsibility of the State. Because the State is the subject of obligations under international law, and where the State is the sole subject of such an obligation, only the State can incur responsibility for its breach.35 Generally, therefore, the responsibility of the State for a breach of international obligation excludes the responsibility of an individual acting on its behalf and whose conduct results in a breach of an international obligation of the State.36 b

The Individual as a Subject of International Law

The capacity of the individual to bear responsibility under international law is contingent upon the legal personality of the individual in international law. Even when the State was admitted as the sole subject of international law,37 as a factual matter, the individual could never be entirely removed from international law because, as the pcij noted in German Settlers in Poland in

34 ilc Articles on State Responsibility, Article 2. 35 Blaškić, it-​95-​14-​a , Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997, para. 38 (Oct. 29, 1997) (hereinafter, “Blaškić (1997)”) (“State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act. … This is a well-​ established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since.” (internal citation omitted)). Cf. Hazel Fox and Philippa Webb, The Law of State Immunity 364 (Oxford: 3d ed. oup 2013) (“The doctrine of imputability of the acts of the individual to the State … in classical law … imputes the act solely to the State, who alone is responsible for its consequence.”). 36 See, e.g., Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31(5) California Law Review 530, 556 (1943) (“The fact that an act is an act of State constitutes a problem of general international law which, as a rule, excludes individual responsibility for an act of State.” (internal citation omitted)). For discussion of the underlying principle, cf. R. Y. Jennings, The Caroline and McLeod Cases, 32(1) ajil 82, 92–​99 (1938) (McLeod’s Case). 37 See discussion supra, Chapter 1.a (The State as a Subject of International Law).

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Chapter 1

1923, “States can act only by and through their agents and representatives.”38 However the individual in this sense is regarded as an object of international law through which its proper subject, the State, operates.39 One feature of this relation between the State and the individual is that the individual does not incur responsibility for acts performed in the name of the State.40 While this remains the general rule in international law, departure from the rule is required for the individual to bear responsibility independent to, and not derivative from, that of the State.41 Recognition of the individual as a subject of international law is an inflection point within a system structured around the State as its principal legal subject.42 As observed by the ictr Trial Chamber, “[t]‌he principle of individual responsibility for serious violations of international criminal law is one of the key indicators of a paradigm shift from a view of international law as law exclusively made for and by States, to a body of rules with potential application to individuals.”43 The emergence of individual legal personality can be traced to the recognition of individual rights under international law and the capacity of the individual to effectuate those rights. The point of departure for this development is the system of diplomatic protection, by which the State is empowered to

38

Questions relating to Settlers of German Origin in Poland, pcij, Series B, Advisory Opinion No. 6, 22 (Sept. 10, 1923) (hereinafter, “German Settlers in Poland (1923)”). 39 George Manner, The Object Theory of the Individual in International Law, 46(3) ajil 428–​ 49 (1952). 40 See supra, n. 55. 41 Watts, op. cit. 82 (“While generally international law applies in that way, and does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute nor [sic] merely international wrongs (in the broad sense of a civil wrong) but rather international crimes which offend against the public order of the international community. States are artificial legal persons: they can only act through the institutions and agencies of the State, which means, ultimately, through its officials and other individuals acting on behalf of the State. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal State and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice.”). 42 See, e.g., Marek St. Korowicz, The Problem of the International Personality of Individuals, 50(3) ajil 533–​562 (1956); Manner, op. cit. 428–​449; Philip C. Jessup, The Subjects of a Modern Law of Nations, 45(4) Michigan Law Review 383–​408 (1947); Phillip Marshall Brown, The Individual and International Law, 18(3) ajil 532–​36 (1924). 43 Muvunyi, ictr-​00-​55a-​t, Judgement and Sentence, para. 459 (Sept. 12, 2006) (The Trial Chamber continued that this “principle of individual responsibility for serious violations of international law … is reflective of customary international law. Indeed … only by punishing such individuals for their criminal conduct, can the fundamental values of international law have meaning and efficacy.”).

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undertake measures on behalf of its nationals under the guise of the rights of that State.44 In a system in which the individual is an object in relation to the State, individual protections could be asserted only by that individual’s State of nationality on his or her behalf through claims invoking the rights the State itself.45 The exercise of diplomatic protection by a State on behalf of its national is a privilege, rather than an obligation, and has the practical effect of transforming the national’s claim into one of the State under international law. The pcij judgment on jurisdiction in the Mavrommatis Palestine Concessions case exemplifies such espousal of an individual’s claims—​in that case, the claims of a Greek citizen were raised by Greece against the United Kingdom.46 Prior to the Second World War, diplomatic protection was the principal mechanism by which the rights of individuals found expression in international law. Even so, indications of the capacity of the individual to bear rights under international law, independent of his or her State, began to emerge at the turn of the twentieth century. One early example of the recognition of the rights of individuals under international law is the League of Nations minorities protection system.47 At the center of this system was a series of Minority Treaties concluded between the League and newly-​established States, as well 44

45

46

47

Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), Judgment of April 6th, 1955, i.c.j. Rep. 1955, p. 4, 24 (“Diplomatic protection and protection by means of ­international judicial proceedings constitute measures of the defence of the rights of the State.”). See ilc Draft Articles on Diplomatic Protection, Article 1, U.N. Doc. A/​61/​ 10, Report of the International Law Commission on the Work of its Fifty-​Eighth Session, [2006] ii(2) YbILC 23 et seq., U.N. Doc. a/​c n.4/​s er.a/​2006/​Add.1 (Part 2) (“For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.”). See, e.g., Annemarieke Vermeer-​Künzli, Diplomatic Protection as a Source of Human Rights Law, in Dinah Shelton [Ed.], The Oxford Handbook of International Human Rights Law 250 (Oxford: oup 2013); John Dugard, Diplomatic Protection and Human Rights: The Draft Articles of the International Law Commission, 24 Australian Year Book of International Law 75 (2005). The Mavrommatis Palestine Concessions, pcij, Series A, Judgment No. 2, p. 12 (Aug. 30, 1924) (“By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—​its right to ensure, in the person of its subjects, respect for the rules of international law. … Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.”). Helmer Rosting, Protection of Minorities by the League of Nations, 17(4) ajil 641 (1923); Péter Kovács, The Protection of Minorities under the Auspices of the League of Nations, in Shelton, op. cit. 325.

20 

Chapter 1

as State defeated during the First World War, with a view toward protecting the rights of members of minority groups to equality before the law, use native languages, establish institutions, and provide education in native languages.48 The Minority Treaties empowered the Council of the League of Nations in relation to issues raised by member States arising from the application of international obligations for the protection of minorities.49 Another early example is the establishment of the cacj between El Salvador, Costa Rica, Guatemala, Nicaragua, and Honduras, which constituted the first such international court.50 The jurisdiction of the cacj extended to cases involving not only contracting States but also included “other cases of an international character [submitted by an individual] no matter whether their own Government supports said claim or not,” the latter clause distinguishing such proceedings from diplomatic protection.51 Another example of the capacity of the individual to appear before an international forum is the International Prize Court, conceived by the 1907 Hague Convention xii to hear appeals to decisions of national prize courts brought both by neutral States as well as private individuals, though the convention was never brought into force.52 Yet another example of this capacity of the individual is the Mixed Arbitral Tribunals established following the First World War, which had jurisdiction over claims by nationals of the Allied and Associated power.53 The Tribunals expressly recognized the 48

49 50

51

52 53

See, e.g., Treaty Between the Principal Allied and Associated Powers and Poland (June 28, 1919, entered into force Jan. 10, 1920), in Joseph V. Fuller [Ed.], xiii Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference, 1919 (Washington: U.S. Government Printing Office 1947). See, e.g., id., Article 12. Convention for the Establishment of a Central American Court of Justice (Dec. 20, 1907), reprinted in 2(S1-​S2) ajil 231 (1908). See Editorial Comment, The First Case Before the Central American Court of Justice, 2(4) ajil 835, 836 (1908) (“Thus, for the first time in the world’s history, we see a court sitting in judgment of nations, parties litigant before it. … It is the first constituted judicial body of a permanent organization to sit in judgment of nations as our municipal tribunals do of individuals.”). See Convention, supra n. 50, Article ii. Cf. James Brown Scott, The Central American Peace Conference of 1907, 2(1) ajil 121, 141 (1908) (“The court therefore is not merely a court of arbitration as it would be were sovereign states the only suitors; but it is a court of justice because individuals may apply to it for a judicial remedy to be administered or found by judges acting under a sense of judicial responsibility.”). Convention (xii) Relative to the Creation of an International Prize Court (Oct. 18, 1907), reprinted in 2(S1-​S2) ajil 174 (1908) (never entered into force). The Treaty of Peace Between the Allied and Associated Powers and Germany, Article 297 (June 28, 1919), in Fuller, op. cit., Annex i (hereinafter, “Treaty of Versailles”) (permitting “nationals of Allied or Associated Powers” to appear before the Tribunals to bring claims against Germany).

Subjects of Responsibility under International Law

21

capacity of the individual to bring claims against States without espousal of those claims by the individual’s State of nationality.54 These indicia of the legal personality of the individual under international law—​as a subject to whom international law could apply directly, with the capacity to appear before international courts and tribunals—​mark a departure from the individual’s exclusive status as an object of international law. While early expressions of international legal personality are seen in the context of effectuating individual rights, implicit in the capacity of the individual to bear rights and vindicate those rights in international fora is the corollary that the individual has the capacity to bear duties under international law enforceable in international fora.55 Crimes under international law are predicated upon the legal personality of the individual,56 as a subject of primary rules under international law bearing individual responsibility for the violation of such rules. The capacity of the individual to bear responsibility for crimes under international law predates the positivization of international law. The international crime of piracy, or piracy jure gentium (piracy under the law of nations), has been recognized at least since the eighteenth century.57 The pirate was regarded by the early community of States as an enemy of all mankind (hostis 54

55 56 57

See, e.g., Exors. of F. Lederer (deceased) v. German Government (Claim 439), Interlocutory Decision, Great Britain-​Germany Mixed Arbitral Tribunal (May 14, 1923) in iii Recueil des Décisions des Tribunaux Arbitraux Mixtes Institués Par Les Traités de Paix 762, 765 (Paris: Librairie de la Société du Recueil Sirey 1923) (“Now the protection and benefit conferred by Article 297 (e) is expressly limited to Nationals of the Allied and Associated Powers, and though the Tribunal recognise the capacity of the executor to claim under this provision, they do not consider themselves as empowered by the Treaty to go in their award further than is necessary to ensure the compensation due to the British beneficiaries.”). See, e.g., Yoram Dinstein, International Criminal Law, 20(2–​3) Israel Law Review 206, 207 (1985) (“Those who are interested in international human rights must also pay heed to the other side of the coin, namely, to international human duties.”). Kate Parlett, The Individual in the International Legal System 229 et seq. (Cambridge: cup 2011); Roland Portmann, Legal Personality in International Law 154 et seq. (Cambridge: cup 2010). See, e.g., United States v. Hasan, 747 F. Supp. 2d 599, 605 (E.D. Va. 2010) aff’d sub nom. United States v. Dire, 680 F.3d 446 (4th Cir. 2012) (“[B]‌y the Eighteenth Century, the international crime of piracy was well established as the only universal jurisdiction crime.”). Cf. Roger O’Keefe, International Criminal Law para. 1.56 (Oxford: oup 2015) (“Customary international law has long acknowledged that states may lawfully assert universal prescriptive jurisdiction over the crime of piracy jure gentium—​that is, piracy as defined by customary international law.”). For an early example, see The Trials of Major Stede Bonnet, and Thirty-​three others, at the Court of Vice-​Admiralty, at Charles-​ Town, in South-​Carolina, for Piracy, 5 George i (1718), in T. B. Howell [Ed.], 15 A Complete Collection of State Trials and Proceedings for High Treason and Other

22 

Chapter 1

humani generis).58 It followed that any State was empowered to exercise jurisdiction over a pirate on the basis of the principle of universality,59 a view that persists in contemporary international law.60 While the international crime of piracy was in these respects regarded as exceptional,61 and sui generis,62 the crime may be viewed as an early antecedent to the development of contemporary international criminal law.63 Contemporary examples of the capacity of the individual to bear responsibility for crimes under international law, enforceable before international courts and tribunals, appear at the end of the First World War.64 The Treaty of Versailles, concluded at the end of the war, provided for the authority of military tribunals to prosecute individuals for violations of the laws and customs of war.65 German Emperor Wilhelm ii was “arraigned” under Article 227

58

59 60

61 62 63 64 65

Crimes and Misdemeanors from the Earliest Period to the Year 1783 1231 et seq. (London: T. C. Hansard 1816). Cf. David Luban, The Enemy of All Humanity, in Kevin Jon Heller et al. [Eds.], The Oxford Handbook of International Criminal Law 560–​565 (Oxford: oup 2020). Accord., e.g., Filártiga v. Peña-​Irala, 630 F.2d 876, 890 (2d Cir. 1980) (“The torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind.”). See discussion infra, Chapter 11.a (Jurisdiction over Individuals under International Law). See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, i.c.j. Reports 2002, p. 3, Sep. Op. Guillaume, paras. 4, 16; Sep. Op. Koroma, para. 9; Joint Sep. Op. Higgins, Kooijmans & Buergenthal, para. 61 (hereinafter, “Arrest Warrant (2002)”). See also S.S. “Lotus” (1927), 51 (Diss. Op. Finlay); 70–​71 (Diss. Op. Moore); 95 (Diss. Op. Altamira). S.S. “Lotus” (1927), 51 (Diss. Op. Finlay). Id. at 70 (Diss. Op. Moore). In this regard, it is noteworthy that the prohibition of piracy, particularly during the drafting of the law of treaties, is cited as an early exemplar of jus cogens. See discussion infra, Chapter 2.a.i (Individual-​Directed Rules). See generally Historical Survey of the Question of International Criminal Jurisdiction (Memorandum submitted by the Secretary-​General), U.N. Doc. a/​c n.4/​7/​Rev.1, U.N. Sales No. 1949. v. 8 (1949). Treaty of Versailles, Articles 227–​230. See Article 228 (“The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.”). See similarly Joint Declaration of France, Great Britain and Russia, File No. 867.4016/​67 (May 29, 1915), in Joseph V. Fuller [Ed.], Papers Relating to the Foreign Relations of the United States, 1915, Supplement, The World War, doc. 1398 (Washington: U.S. Government Printing Office 1948) (“In view of those new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime-​Porte that they will hold personally responsible

Subjects of Responsibility under International Law

23

of the treaty “for a supreme offence against international morality and the sanctity of treaties,” for which the former Emperor was to be prosecuted by a special tribunal.66 However, the German government rejected Article 227 and the former Emperor, taking refuge in the Netherlands, was never prosecuted by the special tribunal envisioned by the treaty.67 The prosecution of State organs for violation of the laws and customs of war pursuant to Article 228 of the treaty—​the so-​called Leipzig Trials—​was extremely limited and generally regarded as a failure.68 Even if the immediate impact of individual prosecutions contemplated by the Treaty of Versailles was marginal, it remains that the measures implemented under the treaty were the first of their kind in international law.69 The fact of individual prosecutions for crimes under international law, however limited, is itself a significant development reflecting important aspects of individual legal personality. The Advisory Committee of Jurists adopted a series of resolutions in 1920, submitted to the Council and Assembly of the League of Nations, one of which recommended the establishment of a High Court of International Justice.70 The Second Resolution adopted by the Advisory Committee contemplated that such a court would have jurisdiction “to try crimes constituting a breach of International public order or against the universal law of nations.”71 The Third

66 67 68

69

70 71

[for] these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres”). Treaty of Versailles, Article 227. Fuller (1947), op. cit., 371–​376; M. Cherif Bassiouni, World War I: The War to End All Wars and the Birth of a Handicapped International Criminal Justice System, 30(3) Denver Journal of International Law and Policy 244, 279–​281 (2002). Fuller (1947), op. cit., 377–​379 (citing United Kingdom, German War Trials; Report of Proceedings before the Supreme Court in Leipzig (Cmd. 1450)); Bassiouni, op. cit. 285. Cf. Theodor Meron, Reflections on the Prosecution of War Crimes by International Tribunals, 100(3) ajil 551, 554–​559 (2006). Bassiouni and Meron quote the Allied Commission of Jurists, which concluded that the Reichsgericht had failed to carry out its mandate: “some of the accused who were acquitted should have been condemned and … in the case of those condemned the sentences were not adequate.” See United Nations War Crimes Commission, History of the United Nations War Crimes Commission and Development of the Laws of War 48 (London: His Majesty’s Stationery Office 1948) (quoting the Advisory Commission of Jurists). Cf. Kelsen, op. cit. 530 et seq. See also Meron, op. cit. 559; Bassiouni, op. cit. 290 (“Thus, apart from helping to lay the legal foundations for international criminal justice in the future, the Allies’ experiment in retributive justice following the First World War was a dismal failure.”). Procès-​V erbaux of the Proceedings of the Committee, June 16th—​ July 24th 1920, with Annexes 748 et seq. (The Hague: Van Langenhuysen Brothers 1920) (Second Resolution). Id., Article 3.

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Chapter 1

Committee of the Assembly of the League of Nations declined to retain the recommendation in the Second Resolution “to set up an International Court of Criminal Justice … to punish international criminals.”72 The Third Committee took the view that, if “international penal law” contemplated by the Advisory Committee further developed in the future, that a criminal department within the pcij might instead be established.73 At that stage however, the Third Committee considered the matter to be “premature.”74 While crimes under international law may not have been sufficiently defined in 1920 to warrant further consideration of establishing an international criminal court, the competence of an international court to exercise criminal jurisdiction over individuals does not seem to have been seriously questioned by the Third Committee. The Convention for the Prevention and Punishment of Terrorism, adopted by the League of Nations in 1937,75 contained an annex providing for establishment of an international criminal court with jurisdiction over the crimes covered by the Convention.76 The Convention defined criminal acts constituting terrorism and contemplated international cooperation toward the ­punishment of such acts.77 The annex contemplated a court that, while international, would apply the substantive law of a relevant national jurisdiction.78 The Convention only received a single ratification and neither it, nor its annex providing for establishment of an international criminal court, entered into force.79

72

73 74 75 76

77 78

79

The Report of Committee No. iii on the Recommendations Presented by the Committee of Jurists at the Hague, in League of Nations, The Records of the First Assembly, Plenary Meetings (Meetings held from the 15th of November to the 18th of December, 1920) 744 et seq. (Geneva 1920). Id. at 744–​45. Id. at 745. Convention for the Prevention and Punishment of Terrorism, League of Nations Doc. C.546(I).M.383(I).1937.v (Nov. 16, 1937), 19 League of Nations O.J. 23 (1938) (hereinafter, “Terrorism Convention (1937)”). Convention for the Creation of an International Criminal Court (Nov. 16, 1937), Article 1, reprinted in Historical Survey of the Question of International Criminal Jurisdiction (Memorandum submitted by the Secretary-​General), 88 et seq., U.N. Doc. a/​c n.4/​7/​Rev.1, U.N. Sales No. 1949. v. 8 (1949) (hereinafter, “Terrorism Convention Annex (1937)”). Terrorism Convention (1937), Articles 1–​3. Terrorism Convention Annex (1937), Article 21 (“The substantive criminal law to be applied by the Court shall be that which is the least severe. In determining what that law is, the Court shall take into consideration the law of the territory on which the offence was committed and the law of the country which committed the accused to it for trial.”). See Thomas M. Franck and Bert B. Lockwood, Jr., Preliminary Thoughts Towards an International Convention on Terrorism, 68(1) ajil 69, 69–​70 (1974).

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25

These initial attempts at international criminal prosecution, however halting, provided early support for the capacity of the individual to bear responsibility for violations of primary rules under international law. The responsibility to be borne by the individual was regarded to be criminal in character and does not appear to have been contemplated as linked to, or otherwise derivative of, State responsibility for breach of its obligations under international law.80 Significant practical barriers prevented the full realization of early efforts toward international criminal prosecution—​ranging from weak political will of States to the perceived inadequacy of international law of the period to furnish crimes punishable at the international level. Nevertheless, by the end of the interwar period, the prospect of individual criminal prosecution under international law was clear. The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (1945) set out parameters for the prosecution of individuals for international crimes following the Second World War.81 The Agreement included the Charter for the imt at Nuremberg, an international body with the competence to prosecute individuals.82 The Charter defined crimes falling within the jurisdiction of the imt at Nuremburg—​crimes against peace, war crimes, and crimes against humanity—​and expressly provided for individual responsibility for such acts.83 The Charter of the imt for the Far East contained similar provisions.84 When the imt at Nuremberg rendered its 1946 judgment, its position on the applicability of international law to the individual could be seen as a continuation of expressions of individual legal personality in the preceding decades. It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it 80 81

82 83 84

For discussion of theories to the contrary, see Bonafè, op. cit. 52–​63. Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 u.n.t.s. 280 (Aug. 8, 1945), reprinted in 39(S4) ajil 257 (1945) (hereinafter, “London Agreement”). Charter of the International Military Tribunal, 82 u.n.t.s. 284 (Aug. 8, 1945), reprinted in 39(S4) ajil 258 (1945) (hereinafter, “imt Charter (1945)”). Id., Article 6. Charter of the International Military Tribunal for the Far East, t.i.a.s. 1589, 3, 4 Bevans 20 (Jan. 19, 1946) (hereinafter, “Tokyo Charter (1946)”).

26 

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out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. … [I]‌ndividuals can be punished for violations of 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.85 This position articulated by the imt clearly indicates the existence of primary rules in international law that apply to the individual as well as the State, and that the sanction for violations of such rules by the individual is criminal responsibility. The imt went further to explain the attributability of criminal conduct to the individual on the basis that “individuals have international duties which transcend the national obligations of obedience imposed by the individual State.”86 Primary rules under international law applicable to the individual, and for which the individual can bear responsibility under international law as distinct from the State, is a prerequisite to concurrent individual and State responsibility under international law. The UN General Assembly endorsed individual responsibility for breaches of primary rules under international law the same year by affirming the principles recognized by the Charter for the imt at Nuremberg and the 1946 judgment of the tribunal.87 UN General Assembly Resolution 95(i) called for the codification of an “International Criminal Code” based on the principles established by the Charter and judgment of the imt, and Resolution 177(ii) directed the newly-​established ilc to advance this end.88 In response to this directive, the ilc prepared two products. The first was the Principles of International Law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950),89 which reflects the principle of 85 86 87 88 89

imt Judgment and Sentences (1946), 220–​221. Id. at 221. See also Furundžija, it-​95-​17/​1-​t, Judgement, para. 155 (Dec. 10, 1998). unga Resolution 95 (i), Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, U.N. Doc. A/​Res/​95(i) (Dec. 11, 1946). Id. See also unga Resolution 177 (ii), Formulation of the Principles Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, U.N. Doc. A/​Res/​ 177(ii) (Nov. 21, 1947). Text of the Nürnberg Principles Adopted by the International Law Commission, U.N. Doc. a/​c n.4/​l .2 (1950), reprinted in Documents of the Second Session including the Report of the Commission to the General Assembly, [1950] ii YbILC 374 et seq., U.N. Doc. a/​c n.4/​ ser.a/​1950/​Add.1 (1957) (hereinafter, “Nürnberg Principles (1950)”).

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individual responsibility.90 The second was the Draft Code of Offences against the Peace and Security of Mankind (1954),91 which similarly focuses on individual responsibility for crimes under international law.92 The Draft Code was ultimately finalized in 1996 as the Draft Code of Crimes against the Peace and Security of Mankind (1996).93 The instrument retained its focus on individual criminal responsibility, providing that “[a]‌crime against the peace and security of mankind entails individual responsibility.”94 The establishment of ad hoc, hybrid, and permanent international courts and tribunals is similarly predicated on individual criminal responsibility for breaches of primary rules under international law. The icty,95 and ictr,96 ad hoc international tribunals established under the Chapter vii authority of the UN Security Council, are premised on individual criminal responsibility under international law.97 The Rome Statute of the icc (1998) established the first permanent international court with jurisdiction over international crimes committed by individuals.98 The jurisdiction of the court is “limited 90 91

92 93

94 95

96 97

98

Id., Principle i (“Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”). Draft Code of Offences against the Peace and Security of Mankind, U.N. Doc. a/​c n.4/​ 85 (1954), reprinted in Documents of the Sixth Session including the Report of the Commission to the General Assembly, [1954] ii YbILC 112 et seq., U.N. Doc. a/​c n.4/​s er.a/​ 1954/​Add.1 (1960) (hereinafter, “Draft Code of Offences (1954)”). Id., Article 1. Draft Code of Crimes against the Peace and Security of Mankind, Report of the Commission to the General Assembly on the Work of its Forty-​Eighth Session, [1996] ii(2) YbILC 15 et seq., U.N. Doc. a/​51/​10, a/​c n.4/​s er.a/​1996/​Add.1 (Part 2) (hereinafter, “Draft Code of Crimes (1996)”). Id., Article 2(1). Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/​25704 (May 3, 1993) (annex), reprinted in 32(5) ilm 1159 et seq. (1993) (hereinafter, “icty Statute (1993)”). See also unsc Resolution 827, U.N. Doc. S/​Res/​827 (May 15, 1993). Statute of the International Criminal Tribunal for Rwanda, unsc Resolution 955, U.N. Doc. S/​Res/​955 (Nov. 8, 1994) (annex), reprinted in 33(6) ilm 1598 et seq. (1994) (hereinafter, “ictr Statute (1994)”). Cf. Christopher Greenwood, The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia, 2(1) Max Planck Yearbook of United Nations Law 97 et seq. (1998); Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90(3) ajil 501 et seq. (1996). Rome Statute of the International Criminal Court, U.N. Doc. a/​c onf.183/​9 (1998), 2187 u.n.t.s. 90 (July 17, 1998, entered into force July 1, 2002), reprinted in 37(5) ilm 999 et seq. (1998) (hereinafter, “Rome Statute (1998)”).

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to the most serious crimes of concern to the international community as a whole”—​genocide, crimes against humanity, war crimes, and aggression.99 Elements of Crimes (2000),100 promulgated pursuant to Article 9 of the Rome Statute, defines the content of core crimes within the jurisdiction of the icc.101 Subsequent hybrid courts, such as the scsl,102 eccc,103 stl,104 and eac,105 were each established with limited jurisdiction over the prosecution of individuals for crimes including international crimes.106 The UN mict, which has 99 Id., Article 5. 100 Elements of Crimes, U.N. Doc. pcnicc/​2000/​1/​Add.2 (Nov. 2, 2000), in Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–​10 September 2002, Official Records, icc-​a sp/​1 /​3 (Part ii-​B) (as adopted Sept. 9, 2002) (hereinafter, “Elements of Crimes”). 101 See Resolution rc/​Res.6 of the Review Conference of the Rome Statute, Amendments on the Crime of Aggression to the Rome Statute of the International Criminal Court (June 11, 2010), reprinted in 49(5) ilm 1334 et seq. (2010). 102 unsc Resolution 1315, On the Situation in Sierra Leone, U.N. Doc. s/​r es/​1315 (Aug. 14, 2000); see Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2178 u.n.t.s. 138 (Jan. 16, 2002, entered into force Apr. 12, 2002) (hereinafter, “scsl Statute (2002)”). 103 unga Resolution 57/​ 228B, Khmer Rouge Trials, U.N. Doc. a/​r es/​57/​228/​b (May 22, 2003) (with annex draft Agreement Between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea); see Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, 2329 u.n.t.s. 117 (June 6, 2003, entered into force Apr. 29, 2005) (hereinafter, “eccc Statute (2005)”). 104 unsc Resolution 1757, On the Establishment of a Special Tribunal for Lebanon, U.N. Doc. S/​Res/​1757 (May 30, 2007) (with annex Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon); see Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, 2461 u.n.t.s. 280 (Jan. 22, 2007 and Feb. 6, 2007, entered into force June 10, 2007) (with Statute) (hereinafter, “stl Statute (2007)”). 105 Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990 (Jan. 30, 2013), reprinted in 52(4) ilm 1028 et seq. (2013) (hereinafter, “eac Statute (2013)”); see Agreement on the Establishment of the Extraordinary African Chambers within the Senegalese Judicial System between the Government of the Republic of Senegal and the African Union (Aug. 12, 2012), reprinted in 52(4) ilm 1024 et seq. (2013). 106 See stl Statute (2007), Article 2 (identifying the Lebanese Criminal Code and certain other provisions of Lebanese law as the applicable criminal law); eccc Statute (2005), Articles 1–​2 (establishing subject-​matter jurisdiction of the court through special legislative grant including international law and Cambodian law); scsl Statute (2002), Article 1 (establishing competence of the court to prosecute serious violations of international humanitarian law and Sierra Leonean law).

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subsumed both the icty and ictr, was established by UN Security Council Resolution 1966, with limited jurisdiction over individuals for international crimes.107 By the end of the twentieth century, then, international law clearly admitted that the individual is subject to certain primary rules under international law with respect to which they may bear individual criminal responsibility.108 International courts and tribunals, in addition to domestic courts, may exercise jurisdiction over individuals with competence to prosecute such violations of international law.109 The practice described above indicates that individual criminal responsibility arising from such violations is separate and distinct from State responsibility for internationally wrongful acts.110 Such practice does not support the proposition that individual responsibility for international crimes is a derivative form of State responsibility or otherwise dependent upon the responsibility of the State.111 Instead, individual criminal responsibility constitutes a modality of responsibility under international law distinguishable from State responsibility. The development of individual criminal responsibility under international law may be viewed in this sense as additive to State responsibility. In practice, as discussed in greater detail below, the operation of State responsibility in relation to international crimes is effectively successive to individual criminal responsibility under international law.

107 unsc Resolution 1966 (2010), On establishment of the International Residual Mechanism for Criminal Tribunals with two branches and the adoption of the Statute of the Mechanism, U.N. Doc. S/​Res/​1966 (Dec. 22, 2010). 108 See, e.g., Watts, op. cit. 82 (“The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law.”); Kai Ambos, Article 25 Individual Criminal Responsibility, in Otto Triffterer [Ed.], Commentary on the Rome Statute of the International Criminal Court 745 (München: 2d ed. C.H. Beck 2008) (observing that Article 25 of the Rome Statute “confirms the universal acceptance of the principle of individual criminal responsibility.”). 109 See discussion infra, Chapter 11 (Jurisdiction). 110 For additional examples of this separability, see discussion infra, Chapter 1.c (Duality of Responsibility in International Law). 111 ilc Articles on State Responsibility, Article 58, Commentary, para. 3 (“[T]‌he question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out. Nor may those officials hide behind the State in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them.” (internal citation omitted)). Accord., e.g., Bianchi, op. cit. 17 (“Early theories of absorption of individual responsibility into state responsibility should nowadays be disregarded as obsolete.”).

30  c

Chapter 1

Duality of Responsibility in International Law

State responsibility and individual criminal responsibility in international law are products of distinct philosophies and historical developments. As discussed above, the law of State responsibility is best contextualized as a product of the Westphalian system and the structure of international relations to which it gave rise.112 International law as a system so comprised of States is defined by legal positivism and, within this system, the State was long understood to be the exclusive subject of international law. The emergence of the nation-​State as the principal unit of international relations continues to define the parameters of the law of State responsibility. The development in international law of individual legal personality, and in particular individual criminal responsibility, has a different genesis.113 The capacity of the individual to bear criminal responsibility for violations of international law evolved in earnest following the Second World War. Part and parcel of this development is recognition in the post-​World War era that there exist primary rules in international law of such importance to the international community that they apply to individuals, who may be subject to responsibility for their breach personally. In this way, two distinct periods that fundamentally redefined international relations produced shifts that reverberated in the law shaping those relations. From this perspective, the law of State responsibility represents a retrenchment of the sovereignty of the State, while individual criminal responsibility in international law marks a piercing of the veil of sovereignty to impose responsibility directly upon individuals, who in many instances themselves act on behalf of States. These distinct trajectories, and the forms of responsibility to which they gave rise, illustrate why the responsibility of individuals and that of States are generally regarded as independent systems.114 It does not follow, however, that these two forms of responsibility and their concomitant secondary rules should operate in isolation from one another. Duality of responsibility in international law refers to State responsibility arising concurrently with, or complementary to, individual criminal responsibility. The premise of dual responsibility is well-​established in international law. The holding of the imt at Nuremberg—​“[c]‌rimes against international law are committed by men, not by abstract entities”—​was cited above as an expression of the proposition that individuals are subject to obligations under

1 12 See discussion supra, Chapter 1.a (The State as a Subject of International Law). 113 See discussion supra, Chapter 1.b (The Individual as a Subject of International Law). 114 See supra, Introduction, n. 1.

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international law.115 However, this statement was evidently not intended to suggest that responsibility for breach of such primary rules is limited to individual criminal responsibility; rather, the statement responded to the suggestion that “international law is concerned with the actions of sovereign States, and provides no punishment for individuals.”116 In rejecting this proposition, the imt explained, “[t]hat international law imposes duties and liabilities upon individuals as well as upon States has long been recognized.”117 Put differently, primary rules in international law may apply to both the individual and the State, giving rise to duality of responsibility. After recounting this conclusion by the imt, the icj, in its 2007 Application of the Genocide Convention judgment, “observe[d] that that duality of responsibility continues to be a constant feature of international law.”118 In its Preliminary Objections order in that case, the icj contemplated such duality arising in relation to the international crime of genocide.119 A range of international instruments contemplates duality of responsibility. Such expressions of duality indicate that the responsibility of individuals and States are regarded as distinct legal questions. Article 58 of the ilc Articles on State Responsibility provides that “[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.”120 In its Commentary to Article 58, the ilc emphasized the severability of individual and State responsibility: Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so,

1 15 116 117 118 119

imt Judgment and Sentences (1946), 221. Id. at 220. Id. (emphasis added). Application of the Genocide Convention (2007), para. 173. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 1996, p. 595, para. 32 (“the reference in Article ix [of the Genocide Convention (1948)] to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article iii’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article iv of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’.”) (hereinafter, “Application of the Genocide Convention (1996)”). 120 ilc Articles on State Responsibility, Article 58.

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the question of individual responsibility is in principle distinct from the question of State responsibility.121 Geneva Convention iv captures the same concept at Article 29: “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.”122 The corollary is expressed, for example, in Article 25(4) of the Rome Statute, which provides that “[n]‌o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”123 Similarly, Article 4 of the ilc Draft Code of Crimes against the Peace and Security of Mankind states: “The fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law.”124 Regarding the ratione personae scope of the Draft Code, the ilc took the position that—​ the criminal responsibility of individuals does not eliminate the international responsibility of States for the consequences of acts committed by persons acting as organs or agents of the State. But such responsibility is of a different nature and falls within the traditional concept of State responsibility. The criminal responsibility of the State cannot be governed by the same régime as the criminal responsibility of individuals[.]‌125 The icty Trial Chamber, for example, adopted this distinction in Tadić.126 One characteristic each of these expressions of dual responsibility shares is that 121 ilc Articles on State Responsibility, Article 58, Commentary, para. 3 (internal citation omitted). 122 Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War, 75 u.n.t.s. 287, Article 29 (Aug. 12, 1949, entered into force Oct. 21, 1950) (hereinafter, “Geneva Convention iv (1949)”). 123 Rome Statute (1998), Article 25(4). 124 Draft Code of Crimes (1996), Article 4 (“Responsibility of States”). 125 Report of the Commission to the General Assembly on the Work of its Thirty-​Sixth Session, para. 32, U.N. Doc. A/​39/​10, [1984] ii(2) YbILC 7 et seq., at 11, U.N. Doc. a/​c n.4/​ ser.a/​1984/​Add.1 (Part 2) (Draft Code of Offences Against the Peace and Security of Mankind). Note that the concept of crimes of States was ultimately omitted from the ilc Articles on State Responsibility, which were contemporaneously subject to review by the ilc. See discussion infra, Chapter 4.c.iii (Crimes of States). 126 Tadić, it-​94-​1-​t, Opinion and Judgement, para. 573 (May 7, 1997) (“the obligations of individuals under international humanitarian law are independent and apply without

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it appears to contemplate the responsibility of individuals and States under international law to be distinct legal questions, such that the secondary rules applicable to one subject of international law are expressly not viewed to impact the operation of secondary rules applicable to the other. Duality of responsibility in international law arises in relation to a narrow category of primary rules directed at individual and State conduct, and results from the operation of secondary rules governing responsibility.127 In particular, duality of responsibility refers to the way in which State responsibility under international law for internationally wrongful acts may arise in relation to individual responsibility for crimes under international law.128 This relationship between individual and State responsibility was illustrated, for example, by the icty Trial Chamber in Furundžija, in the context of the international crime of torture—​ 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.129 The disjunctive connector emphasized above separates two distinct aspects of State responsibility related to the underlying unlawful individual conduct.130 prejudice to any questions of the responsibility of States under international law.” (internal citation omitted)). 127 See discussion infra, Chapter 2.a (Primary Rules). Accord, e.g., André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52(3) iclq 615, 631 (2003); Bonafè, op. cit. 23–​24. The practical relevance of this duality of responsibility is difficult to overstate. See, e.g., ilc Articles on State Responsibility, Article 58, Commentary, para. 3 (quoted supra, n. 111); Tallgren, op. cit. 589 (“The criminality which has been regarded as the most serious in the history of international criminal law, and which the icty, the ictr and the icc are primarily meant to target, is normally committed in connection with the exercise of state power. The connection may be more or less close, just as the state power may be monolithic or fragmented, but some sort of connection can be presumed.”). 128 In this regard, the two forms of responsibility (i.e., individual and State responsibility) are distinct: see, e.g., Dinstein, op. cit., 207 (1985) (“Ordinarily, State responsibility is expressed in the genesis of a new obligation of reparation[.]‌… Conversely, individual responsibility means subjection to criminal sanctions. When an individual human being contravenes an international duty binding him directly, he commits an international offence and risks his life, liberty or property.”). 129 Furundžija, it-​95-​17/​1-​t, Judgement, para. 142 (Dec. 10, 1998) (emphasis added). 130 Cf. Hazel Fox, The International Court of Justice’s Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to the State, in Nisuke Ando et al. [Eds.], I Liber Amicorum Judge Shigeru Oda 147, 148–​149, 163 (The Hague: Kluwer Law

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As framed by the icj in its 2007 Application of the Genocide Convention judgment, with respect to the international crime of genocide and failure to perform associated obligations to prevent genocide and punish genocidaires, “these are two distinct internationally wrongful acts attributable to the State, and both can be asserted against it as bases for its international responsibility.”131 In this sense, duality of responsibility reflects two distinct ways in which State responsibility may arise in relation to a crime under international law. First, to the extent that State responsibility may ensue as a result of an international crime attributable to the State, such State responsibility is concurrent with individual responsibility that may arise for that same conduct. Dual responsibility in this sense refers broadly to the attribution to the State, for purposes of State responsibility, of conduct for which the individual may bear criminal responsibility under international law.132 Under this rubric of “double attribution,”133 individual and State responsibility operate in parallel for the same conduct.134 These concurrent forms of responsibility are alluded to, for example, in savings clauses of the Rome Statute and the ilc Articles on State International 2002) (Fox articulates this distinction in terms of “direct” and “indirect” State responsibility. However, Fox cautions that these labels suggest differentiation in the character of each aspect of State responsibility, which is not presently supported in international law, and as a result these terms “only add confusion” in this area of law). 131 Application of the Genocide Convention (2007), para. 383. 132 Nollkaemper, op. cit. 618–​619; Bonafè, op. cit. 43–​45; Werle and Jessberger, op. cit. 44; Fox (2002), op. cit. 157. 133 Elies van Sliedregt, Individual Criminal Responsibility in International Law 5–​7 (Oxford: oup 2012). See similarly Nollkaemper (2003), op. cit. 615, 619 (referring to “parallel attribution” and conduct “attributed twice”). But see Bonafè, op. cit. 23–​25 (conditioning dual responsibility as arising through “overlap between” objective and subjective elements of individual and State responsibility). See discussion infra, Chapter 8.b (Double Attribution). 134 See similarly Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part 83 n. 14 (Oxford: oup 2013) (“Individual criminal responsibility always operates parallel to classical state responsibility.”); Werle and Jessberger, op. cit. 44 (“Crimes under international law typically, though not necessarily, presume state participation. Therefore, responsibility on the part of the state does not follow automatically from the commission of a crime under international law by one of its citizens or agents. … Conversely, liability of a state under the law of state responsibility does not automatically lead to individual criminal responsibility of any of its agents involved under international law. But crimes under international law and wrongful acts by a state will often coincide.” (internal citation omitted)); van Sliedregt, op. cit. 5 (“The organized and collective nature of crimes often suggests state involvement.”); Bonafè, op. cit. 247 (“The main consequence of … unity at the level of primary norms is that the material conduct amounting to an international crime is the same under both regimes of international responsibility.”).

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Responsibility reproduced immediately above. Concurrent responsibility arising respectively for the individual and the State in relation to an international crime remain different in kind: the individual is subject to individual criminal responsibility while the State is subject to international responsibility.135 Second, to the extent that the State is subject to obligations in relation to primary rules from which individual criminal responsibility may arise, State responsibility may ensue for breaches of such obligations. Such obligations may include obligations erga omnes under customary international law, or obligations erga omnes partes under treaty law, concerning prevention and punishment of crimes under international law.136 Duality of responsibility in this sense refers to State responsibility that is complementary to individual responsibility for the underlying conduct, arising from a breach of obligations related to the limited category of primary rules that give rise to individual criminal responsibility (e.g., through failure to prevent or punish international crimes).137 Unlike concurrent responsibility, in which State and individual responsibility arise from the same primary rules, State responsibility that is complementary to individual responsibility arises from different, associated primary rules.138 This distinction has significant practical consequences discussed in Chapter 4.139 The chapters that follow examine the relationship between individual and State responsibility with a view toward duality of responsibility in international law. 135 See, e.g., van Sliedregt, op. cit. 5 (“The law of state responsibility, however, belongs to a separate branch of international law and does not depend nor imply the legal responsibility of individuals.”); Dinstein, op. cit., 207. See discussion infra, Chapter 9 (Consequences). 136 See discussion infra, Chapter 2.a.ii (State-​Directed Rules). 137 See, e.g., Hazel Fox, The International Court of Justice’s Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to the State, in Nisuke Ando et al. [Eds.], I Liber Amicorum Judge Shigeru Oda 147, 148–​149 (The Hague: Kluwer Law International 2002) (contemplating State responsibility in this sense as “indirect responsibility”). “Complementarity” in this sense refers to State responsibility arising from breach of different primary rules rather than concurrence of responsibility for international crimes, though complementarity is frequently invoked in this latter sense. See Joachim Wolf, Individual Responsibility and Collective State Responsibility for International Crimes: Separate or Complementary Concepts under International Law?, in Bartłomiej Krzan [Ed.], Prosecuting International Crimes: A Multidisciplinary Approach 4 (Leiden: Brill Nijhoff 2016) (discussing “complementary effects” of individual and State responsibility “in cases where such effects are not only cumulative but also mutually enforcing.”); Bonafè, op. cit. 44–​45 (referring to “complementarity” of individual and State responsibility for international crimes). 138 See discussion infra, Chapter 2.a. (Primary Rules). 139 See discussion infra, Chapter 4.d.ii (Implications of Distinct Primary Rules).

­c hapter 2

Primary and Secondary Rules This monograph is organized according to a division between primary and secondary rules. This typology is attributed to Hart, who defines law in terms of “a system of primary rules that direct and appraise conduct together with secondary rules about how to identify, enforce, and change the primary rules.”1 Primary rules, according to this rubric, may be regarded as substantive rules imposing obligations; secondary rules, by contrast, “are all concerned with the primary rules themselves,” and govern the operation and enforcement of primary rules.2 While primary and secondary rules do not account for a whole legal system, they are, according to Hart, found at the center of a system of law.3 The typology of primary and secondary rules is familiar to the international law of responsibility. This organizing framework was applied by special rapporteur Ago to the ilc project on State responsibility.4 In that context, the distinction was effectively employed to bypass difficulties arising from substantive obligations and instead focus the project on the rules concerned with the substantive obligations themselves.5 The provisions of the ilc Articles on State Responsibility are, therefore, intended to focus on the secondary rules of responsibility under international law, rather than the primary rules of 1 H.L.A. Hart, The Concept of Law xv (Oxford: 3d ed. oup 2012). See also id. at 81 (“Under rules of the one type, which may well be considered the basic or primary type, human beings are required to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. Rules of the first type impose duties; rules of the second type confer powers, public or private. Rules of the first type concern actions involving physical movement or changes; rules of the second type provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations.”). 2 Id. at 94. 3 Id. at 99. 4 ilc Second Report on State Responsibility (Roberto Ago, Special Rapporteur), U.N. Doc. a/​ cn.4/​233, [1970] ii(2) YbILC 177 et seq., at 178, U.N. Doc. a/​c n.4/​s er.a/​1970/​Add.1 (“[I]‌t is one thing to define a rule and the content of the obligation it imposes and another to determine whether that obligation has been violated and what should be the consequences of the violation. Only the second comes within the sphere of responsibility proper[.]”). See James Crawford, State Responsibility: The General Part 64–​66 (Cambridge: cup 2013). 5 David D. Caron, The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority, 96(4) ajil 857, 870–​871 (2002).

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obligations to which States may be subject.6 A practical shortcoming of segregating different kinds of rules within a system of law that may not in every instance be neatly categorized as such—​as illustrated by aspects of the Articles on State Responsibility ultimately finalized by the ilc—​is that the approach may be seen “to some degree … [a]‌s arbitrary.”7 This critique notwithstanding, and even if the distinction might add a measure of complexity and abstraction,8 the approach provides analytical advantages, most notably, the ability to study secondary rules of responsibility independent of the primary rules of obligation to which they apply.9 Studying duality of responsibility in international law from the standpoint of a distinction between primary and secondary rules benefits from this and other advantages. Most broadly, the approach allows for a clear delineation between the rules of obligation in relation to which individual and State responsibility may arise under international law and the secondary rules that operationalize this duality. Although the distinction may arguably add a layer of complexity, in practice, distinguishing between primary and secondary rules in this context rather enables some ordering in an otherwise complicated system. And, as with the ilc State responsibility project, this approach allows for the study of secondary rules that operationalize duality of responsibility independent from the primary rules of obligation to which these rules apply. This is particularly advantageous where the primary rules themselves remain subject to a degree of debate among practitioners and scholars. The parameters of dual responsibility in international law are defined by secondary rules of individual and State responsibility. These secondary rules are seen to function distinctly in relation to their subjects (i.e., the secondary rules of individual responsibility are different from those of State responsibility).10 Moreover, the operation of secondary rules in regard to duality of 6 Crawford, op. cit. 64–​66. 7 Daniel Bodansky and John R. Crook, Symposium: The ILC’s State Responsibility Articles: Introduction and Overview, 96(4) ajil 773, 780 (2002). See similarly Jure Vidmar, Some Observations on Wrongfulness, Responsibility and Defences in International Law, 63 Netherland International Law Review 335, 350 (2016) (“The distinction between primary and secondary rules is arbitrary and confusing.”). 8 Caron, op. cit. 870–​871. 9 Bodansky and Crook, op. cit. 780 (“Because the secondary rules of state responsibility are general in nature, they can be studied independently of the primary rules of obligation. They evince neutrality on many disputed or controversial substantive matters.”). 10 See, e.g., Katja Creutz, State Responsibility in the International Legal Order: A Critical Appraisal 34–​37 (Cambridge: cup 2020); Vladimir-​Djuro Degan, Responsibility of States and Individuals for Genocide and other International Crimes, in Isabelle Buffard et al. [Eds.], International Law Between Universalism

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responsibility is unique to the primary rules—​respectively applicable to the individual and to the State—​in question. Although primary and secondary rules will therefore be classed as directed at either the individual or the State, these rules nevertheless operate within a unitary system of international law. Accounting for interconnection in the operation of these secondary rules, as well as convergence and divergence, is essential to maintaining the integrity of the international law of responsibility in the context of duality. The sections that follow identify the primary rules that give rise to dual responsibility in international law, then introduce the secondary rules that operationalize dual responsibility; these secondary rules are the subject of study in the subsequent parts of this monograph. a

Primary Rules

Individual-​Directed Rules i The responsibility of the individual, as it relates to duality of responsibility in international law, refers to individual criminal responsibility for international crimes.11 International criminal responsibility may be seen to arise as the sanction for conduct in breach of a peremptory norm.12 In this regard, peremptory norms are closely related to international criminal law and international

11

12

and Fragmentation: Festschrift in Honour of Gerhard Hafner 511 (Leiden: Martinus Nijhoff 2008) (describing, in view of the Rome Statute of the icc and the ilc Articles on State Responsibility, “a tendency to rigidly separate the issues of State responsibility and of criminal responsibility of individuals into two autonomous sets of rules of international law.”); Antônio Augusto Cançado-​Trindade, Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited, in Maurizio Ragazzi [Ed.], International Responsibility Today: Essays in Memory of Oscar Schachter 268 (Leiden: Martinus Nijhoff 2005) (describing “the persistent compartmentalized approach to the international responsibility of the State and the international criminal responsibility of individuals.”); Daniel Bodansky and John R. Crook, Symposium: The ILC’s State Responsibility Articles: Introduction and Overview, 96(4) ajil 773, 788 (2002) (describing savings clauses of the Articles on State Responsibility, including Article 58, as “dividing walls between the different systems”). See, e.g., Elies van Sliedregt, Individual Criminal Responsibility in International Law 5–​7 (Oxford: oup 2012); Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 43–​45 (Leiden: Martinus Nijhoff 2009); Nollkaemper (2003), op. cit. 618 n. 14. See Thomas Weatherall, Jus Cogens 267–​276 (Cambridge: cup 2015).

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crimes correspond to violations of norms belonging to jus cogens.13 The relationship between primary rules belonging to jus cogens and individual criminal responsibility for breach of such rules is important to identify at the outset because the operation of secondary rules in the context of dual responsibility is informed by legal effects unique to the underlying primary rules at issue. Jus cogens constitutes a category of peremptory norms of international law “accepted and recognized by the international community of States as a whole … from which no derogation is permitted.”14 The concept of jus cogens was codified in Articles 53 and 64 of the Vienna Convention on the Law of Treaties (1969), which establishes the invalidity of treaties conflicting with a peremptory norm of general international law.15 The “Vienna Convention effects” of peremptory norms render a treaty null and void upon its conclusion that conflicts with a norm belonging to jus cogens and, should a peremptory norm emerge with which a treaty in force conflicts, that treaty “becomes void and terminates.”16 The premise of the Vienna Convention effects of jus cogens is 13

14 15

16

Jochen Frowein, Jus Cogens, in Rudolf Bernhardt [Ed.], 3 Encyclopedia of Public International Law 65, 68 (Amsterdam: North Holland 1997) (“A crime in this sense is seen as a violation of basic rules of jus cogens.”); Report of the International Law Commission on the Work of its Twenty-​Eighth Session, Draft Article 19, Commentary, para. 21, U.N. Doc. A/​31/​10, [1976] ii(2) YbILC 69 et seq., at 104, U.N. Doc. a/​c n.4/​s er.4/​ 1976/​Add.1 (Part 2) (“It is … no accident that the obligations … whose breach entails the personal punishment of the perpetrators, correspond largely to the obligations imposed by certain rules of jus cogens.”). Vienna Convention on the Law of Treaties, Article 53. Id. (“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”). See also id., Article 64 (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”). See Third Report on the Law of Treaties (Gerald Fitzmaurice, Special Rapporteur), Draft Article 16, U.N. Doc. a/​c n.4/​1 15, [1958] ii YbILC 20 et seq., at 26, U.N. Doc. a/​c n.4/​s er.a/​ 1958/​Add.12 (Article 16. Legality of the object (general)) (“It is essential to the validity of a treaty that it should be in conformity with or not contravene, or that its execution should not involve an infraction of those principles and rules of international law which are in the nature of jus cogens.”); Second Report on the Law of Treaties (Humphrey Waldock, Special Rapporteur), Draft Article 13, U.N. Doc. a/​c n.4/​156 and Add.1–​3, [1963] ii YbILC 36 et seq., at 52, U.N. Doc. a/​c n.4/​s er.a/​1 963.add.1 (Article 13—​Treaties void for illegality) (“A treaty is contrary to international law and void if its object or its execution involves the infringement of a general rule or principle of international law having the character of jus cogens.”).

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that there are boundaries beyond which the State may not conclude law.17 As much was articulated as early as 1953 by Lauterpacht in his capacity as the second of four ilc special rapporteurs on the law of treaties—​ It would thus appear that the test whether the object of the treaty is illegal and whether the treaty is void for that reason is not inconsistency with customary international law pure and simple, but inconsistency with such overriding principles of international law which may be regarded as constituting principles of international public policy (ordre international public). These principles need not necessarily have crystallized in a clearly accepted rule of law such as prohibition of piracy or of aggressive war. They may be expressive of rules of international morality so cogent that an international tribunal would consider them as forming part of those principles of law generally recognized by civilized nations[.]‌18 During the drafting of the law of treaties, jus cogens was understood to have broader structural implications in international law.19 This is consistent with subsequent practice, in which there are exceedingly few examples of the invocation of Articles 53 or 64 of the Vienna Convention to invalidate a treaty.20 Instead, peremptory norms—​which permit derogation by no subject of international law—​are violated as a practical matter by individual conduct rather than international agreements between States. It is this unilateral aspect of peremptory norms that has been of the greatest practical importance with respect to the primary rules belonging to jus cogens.21 For this reason, primary rules belonging to jus cogens are included in this section as individual-​directed rules, though such primary rules also give rise simultaneously to obligations for States.22 Jus cogens gives rise to, and interacts with, secondary rules in international law in various complex ways, as illustrated by jurisprudence of the icj.23 17 Alexander Orakhelashvili, Peremptory Norms in International Law 19 (Oxford: oup 2008). 18 First Report on the Law of Treaties (Hersch Lauterpacht, Special Rapporteur), Draft Article 15, Comment, para. 4, U.N. Doc. a/​c n.4/​63, [1953] ii YbILC 90 et seq., at 154, U.N. Doc. a /​c n.4/​s er.a/​1953/​Add.1 (Article 15. Consistency with International Law). 19 Thomas Weatherall, Jus Cogens 6–​8 (Cambridge: cup 2015). 20 Id. at 86–​89. 21 Id. at 7–​8. 22 See discussion infra, Chapter 2.a.ii (State-​Directed Rules). 23 See, e.g., Application of the Genocide Convention (2015), paras. 85–​88 (discussing procedural effects and limitations of the jus cogens status of prohibition of genocide vis-​à-​vis the Genocide Convention); Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​70, 99, 103–​104 (finding erga omnes obligations, arising from the jus

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The icj has contemplated the prohibitions of aggression,24 genocide,25 war crimes,26 crimes against humanity,27 torture,28 systematic racial discrimination,29 and slavery30 to belong to jus cogens, to which piracy31 and terrorism32 may be added.

24 25 26

27 28 29 30 31 32

cogens prohibition of torture, under the Torture Convention sufficient to grant third-​State standing before the court); Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, i.c.j. Reports 2012, p. 99, paras. 93–​97 (finding that, even if rules of international humanitarian law belong to jus cogens, that status has no bearing on the rules of State immunity under customary international law) (hereinafter, “Jurisdictional Immunities of the State (2012)”); Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010, p. 403, para. 81 (noting the illegality of declarations of independence connected with “the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).”); Application of the Genocide Convention (2007), para. 161 (finding international responsibility of Serbia for breach of erga omnes obligations in relation to the prohibition of genocide); Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 2006, p. 6, paras. 64, 78, 125 (hereinafter, “Armed Activities on Territory of the Congo (2006)”) (finding the jus cogens status of obligations at issue prohibiting genocide and racial discrimination does not constitute an exception to the principle that the jurisdiction of the court depends upon consent of parties to a dispute); Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, i.c.j. Reports 2002, p. 3, paras. 56–​60 (finding no exception to immunity ratione personae of foreign minister in relation to domestic process concerning war crimes and crimes against humanity) (hereinafter, “Arrest Warrant (2002)”); cf. Jurisdictional Immunities of the State (2012), para. 95 (noting that Arrest Warrant (2002) concerned “criminal violations of rules which undoubtedly possess the character of jus cogens”). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010, p. 403, para. 81. Application of the Genocide Convention (2015), paras. 87–​88; Application of the Genocide Convention (2007), para. 161; Armed Activities on Territory of the Congo (2006), paras. 64, 125. Jurisdictional Immunities of the State (2012), para. 95 (noting that Arrest Warrant (2002) concerned “criminal violations of rules which undoubtedly possess the character of jus cogens”); Arrest Warrant (2002), paras. 13, 58. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 136, para. 157 (hereinafter, “Construction of a Wall (2004)”). Jurisdictional Immunities of the State (2012), paras. 93, 95, 108 (noting that Arrest Warrant (2002) concerned “criminal violations of rules which undoubtedly possess the character of jus cogens”); Arrest Warrant (2002), paras. 13, 58. See, e.g., Questions relating to the Obligation to Prosecute or Extradite (2012), para. 99. Armed Activities on Territory of the Congo (2006), para. 78. Jurisdictional Immunities of the State (2012), para. 93 (in the particular context of armed conflict). See, e.g., R. v. Tang, High Court of Australia, [2008] hca 39, para. 111 (Aug. 28, 2008) (Kirby, J.). See, e.g., Réunion Aérienne v. Socialist People’s Libyan Arab Jamahiriya, Cour de cassation (France), No. 09-​14743, 150 ilr 630 (Mar. 9, 2011); Galić, it-​98-​29-​t, Judgement

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Crimes under international law are closely related to jus cogens.33 Historically, jus cogens can be viewed as a part of the same development of international law as the international criminal prosecutions that followed the Second World War.34 In its commentary to the Draft Articles on the Law of Treaties—​which would be adopted as the Vienna Convention—​the ilc included examples of treaties conflicting with primary rules belonging to jus cogens to include those contemplating an unlawful use of force (i.e., contrary to the principles of the UN Charter), the “performance of any other act criminal under international law,” or the commission of acts, such as trade in slaves, piracy, or genocide, “in the suppression of which every State is called upon to co-​operate.”35 Relatedly, early commentary to the ilc Articles on State Responsibility defined crimes under international law in relation to jus cogens,36 though the concept of crimes of State was ultimately omitted from

33 34

35

36

and Opinion, para. 98 (Dec. 5, 2003). Cf. Aniel Caro de Beer, Peremptory Norms of General International Law (Jus Cogens) and the Prohibition of Terrorism 61–​102 (Leiden: Brill Nijhoff 2019); Thomas Weatherall, The Status of the Prohibition of Terrorism in International Law: Recent Developments, 46(1) Georgetown Journal of International Law 589–​627 (2015). See supra, n. 13. Cf. Weatherall, op. cit. 267–​276. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (quoting Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 i.c.j. 3, at 32 (Feb. 5)) (“The universal and fundamental rights of human beings identified by Nuremberg—​ rights against genocide, enslavement, and other inhumane acts—​are the direct ancestors of the universal and fundamental norms recognized as jus cogens. In the words of the International Court of Justice, these norms, which include ‘principles and rules concerning the basic rights of the human person’, are the concern of all states; ‘they are obligations erga omnes’.”). Draft Articles on the Law of Treaties with Commentaries, Draft Article 50, Commentary, para. 3, Reports of the International Law Commission on the Second Part of its Seventeenth Session and on its Eighteenth Session, U.N. Doc. A/​6309/​Rev.1, [1966] ii YbILC 187 et seq., at 248, U.N. Doc. a/​c n.4/​s er.a/​1966/​Add.1 (the ilc also noted that other possible examples “were mentioned,” including violation of human rights and the principle of self-​determination, without indication that the ilc had accepted that view). Fifth Report on State Responsibility (Robert Ago, Special Rapporteur), paras. 99, 151, U.N. Doc. a/​c n.4/​2 91 Add.1 & 2 and Corr.1, [1976] ii(1) YbILC 3 et seq., at 32, 53, U.N. Doc. a/​ cn.4/​s er.a/​1976/​Add.1 (Part 1). The ilc subsequently opined that jus cogens constitutes a broader category of peremptory norms than only international crimes. See Report of the International Law Commission on the Work of its Twenty-​Eighth Session, Draft Article 19, Commentary, para. 62, U.N. Doc. A/​31/​10, [1976] ii(2) YbILC 69 et seq., at 120, U.N. Doc. a/​c n.4/​s er.4/​1976/​Add.1 (Part 2) (“It can be accepted that obligations whose breach is a crime will ‘normally’ be those deriving from rules of jus cogens, though this conclusion cannot be absolute. But above all, although it may be true that failure to fulfil an

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the Articles on State Responsibility.37 Functionally, international criminal responsibility may be seen as the individual sanction for conduct in breach of a primary rule belonging to jus cogens.38 This relationship between jus cogens and crimes under international law was articulated by the icty Trial Chamber in Furundžija: [A]‌t the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition … is that every State is entitled to investigate, prosecute and punish or extradite individuals accused[.]39 The international criminality attaching to violations of such primary rules can be understood to reflect the importance of those primary rules to the international community.40 From this standpoint, jus cogens may be viewed as circumscribing the primary rules of international law the violation of which give rise to international crimes. At its most basic reduction, a crime under international law, or an international crime, is a crime defined by international law.41 The imt at obligation established by a rule of jus cogens will often constitute an international crime, it cannot be denied that the category of international obligations admitting of no derogation is much broader than the category of obligations whose breach is necessarily an international crime.”). Practice in the intervening period has not, however, borne out the hypothesis that the content of primary rules belonging to jus cogens is “much broader” than those the breach of which constitutes an international crime. 37 See discussion infra, Chapter 4.c.iii (Crimes of States). The concept of international crimes of States was replaced in the ilc Articles on State Responsibility with “serious breaches of obligations under peremptory norms of general international law.” Cf. Eric Wyler, From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’, 13(5) ejil 1147, 1159 (2002) (Suggesting that this substitution, with respect to the primary rules in question, is merely a “cosmetic” change.). 38 Frowein, op. cit. 68; Weatherall, op. cit. 267–​276. 39 Furundžija, it-​95-​17/​1-​t, Judgement, para. 156 (Dec. 10, 1998). 40 For a definition of crimes under international law in such terms, see Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 45–​46 (Oxford: 3d ed. oup 2014) (“Crimes under international law directly affect fundamental values of the international community and establish criminal responsibility directly under international law. … [C]‌rimes under international law by definition evidence a relationship to the interests of the international community as a whole.”). 41 Roger O’Keefe, International Criminal Law, para. 2.20 (Oxford: oup 2015); Werle and Jessberger, op. cit. 45–​46.

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Nuremberg defined an international crime as “such an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances.”42 These features continue to inform the substantive content of international criminal law. Individual criminal responsibility for such violations of international law can be viewed as a means to achieve the primary purposes of deterrence and retribution that animate international criminal law.43 Alongside international crimes as they arise under customary international law, States have defined, through international agreements and other instruments, crimes engaging individual responsibility under international law and established obligations to suppress such conduct.44 This conduct includes piracy,45 slavery,46 crimes against humanity,47 war crimes,48 42 Hostages Trial (1948), 48. For another early definition, see Lassa Oppenheim, I International Law § 151 (London: Longmans, Green and Co. 3d ed. 1920). (“ ‘International Crimes’ … refer to crimes like piracy on the high seas or slave trade, which either every State can punish on seizure of the criminals, or whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent.”). 43 See discussion infra, Chapter 9.a.i (Purposes). 44 Cf. Werle and Jessberger, op. cit. 45–​46 (distinguishing such international agreements, which obligate States to criminalize certain offences, from the customary international law source of individual responsibility for crimes under international law). Such other instruments include those establishing international courts and tribunals with jurisdiction over specific international crimes, where international crimes are reflected in provisions defining the ratione materiae jurisdiction of those courts and tribunals. 45 UN Convention on the Law of the Sea, 1833 u.n.t.s. 397, Articles 100–​101, 105 (Dec. 10, 1982, entered into force Nov. 16, 1994) (hereinafter, “unclos (1994)”); see also Convention on the High Seas, 450 u.n.t.s. 11, Articles 14–​15, 19 (Apr. 29, 1958, entered into force Sept. 30, 1962) (hereinafter, “Convention on the High Seas (1962)”). 46 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 266 u.n.t.s. 3, Articles 3, 5–​7 (Sept. 7, 1956, entered into force Apr. 30, 1957) (hereinafter, “Supplemental Slavery Convention (1957)”); see also Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926, 60 l.n.t.s. 254, Articles 2, 6 (Sept. 25, 1926, entered into force Mar. 9, 1927) (hereinafter, “Slavery Convention (1927)”). 47 eac Statute (2013), Articles 4(b), 6; scsl Statute (2002), Article 2; Rome Statute (1998), Article 7; Draft Code of Crimes (1996), Article 18; ictr Statute (1994), Article 3; icty Statute (1993), Article 5; Draft Code of Offences (1954), Article 2, para. 11; Tokyo Charter (1946), Article 5(c); imt Charter (1945), Article 6(c). 48 eac Statute (2013), Articles 4(c), 7; scsl Statute (2002), Articles 3–​4; Rome Statute (1998), Article 8; Draft Code of Crimes (1996), Article 20; ictr Statute (1994), Article 4; icty Statute (1993), Articles 2–​3; Draft Code of Offences (1954), Article 2, para. 12; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 u.n.t.s. 31, Articles 49–​50 (Aug. 12, 1949, entered into

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aggression,49 genocide,50 torture,51 apartheid (systematic racial discrimination),52 and terrorism.53 Instruments defining crimes under international law force Oct. 21, 1950) (hereinafter, “Geneva Convention i (1949)”); Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 75 u.n.t.s. 85, Articles 50–​51 (Aug. 12, 1949, entered into force Oct. 21, 1950) (hereinafter, “Geneva Convention ii (1949)”); Geneva Convention (iii) Relative to the Treatment of Prisoners of War, 75 u.n.t.s. 135, Articles 129–​130 (Aug. 12, 1949, entered into force Oct. 21, 1950) (hereinafter, “Geneva Convention iii (1949)”); Geneva Convention iv (1949), Articles 146–​147; Tokyo Charter (1946), Article 5(b); imt Charter (1945), Article 6(b). 49 Resolution rc/​Res.6 of the Review Conference of the Rome Statute, Amendments on the Crime of Aggression to the Rome Statute of the International Criminal Court (June 11, 2010), reprinted in 49(5) ilm 1334 et seq. (2010); Rome Statute (1998), Article 8bis; Draft Code of Crimes (1996), Article 16; Draft Code of Offences (1954), Article 2, paras. 1–​3; Nürnberg Principles (1950), Principle vi(a); Tokyo Charter (1946), Article 5(a) (defining “crimes against peace” in relation to a “war of aggression” or a war “in violation of international law, treaties, agreements or assurances”); imt Charter (1945), Article 6(a) (defining “crimes against peace” in relation to “a war of aggression” or a war “in violation of international treaties, agreements, or assurances”); Convention for the Definition of Aggression, 147 l.n.t.s. 69, No. 3391 (July 3, 1933, entered into force Feb. 17, 1934). 50 eac Statute (2013), Articles 4(a), 5; Rome Statute (1998), Article 6; Draft Code of Crimes (1996), Article 17; ictr Statute (1994), Article 2; icty Statute (1993), Article 4; Convention on the Prevention and Punishment of the Crime of Genocide, 78 u.n.t.s. 277, Articles iv-​v i (Dec. 9, 1948, entered into force Jan. 12, 1951) (hereinafter, “Genocide Convention (1948)”). 51 eac Statute (2013), Articles 4(d), 8; scsl Statute (2002), Articles 2(f), 3(a) (as a constituent crime against humanity and war crime); Rome Statute (1998), Articles 7(1)(f), 8(2)(a)(ii) (same); Draft Code of Crimes (1996), Articles 18(c), 20(a)(ii) (same); ictr Statute (1994), Articles 3(f), 4(a) (same); icty Statute (1993), Articles 2(b), 5(f) (same); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 u.n.t.s. 85, Articles 1, 4 (Dec. 10, 1984, entered into force June 26, 1987) (hereinafter, “Torture Convention (1984)”). 52 Rome Statute (1998), Article 7(1)(j) (as a constituent crime against humanity); Draft Code of Crimes (1996), Article 18(f) (defining “institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population” as a constituent crime against humanity); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 1125 u.n.t.s. 3, Article 85(4)(c) (June 8, 1977, entered into force Dec. 7, 1978) (hereinafter, “Additional Protocol i (1977)”); International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 u.n.t.s. 243, Articles i, iii (Nov. 30, 1973, entered into force July 18, 1976) (hereinafter, “Apartheid Convention (1976)”); International Convention on the Elimination of All Forms of Racial Discrimination, 660 u.n.t.s. 195, Articles 2–​4 (Dec. 21, 1965, entered into force Jan. 4, 1969) (hereinafter, “cerd Convention (1966)”). 53 stl Statute (2007), Article 2(a); scsl Statute (2002), Article 3(d) (as a constituent war crime); ictr Statute (1994), Article 4(d) (same); Geneva Convention iv (1949), Article

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often establish associated primary rules concerning prevention and punishment of such conduct. As such, these instruments are a source of primary rules related to the underlying conduct at issue that consist of complementary obligations of the State. ii State-​Directed Rules Obligations erga omnes in international law refer to obligations owed by each State to the international community of States as a whole or, in the case of obligations erga omnes partes, to all parties to a multilateral international agreement.54 The icj first referred to the concept in Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (1970) and has since invoked the doctrine repeatedly.55 In Barcelona Traction, the icj referred to obligations erga omnes in contradistinction to obligations owed bilaterally by one State to another, and appeared to link such obligations to a limited category of primary rules. In particular, 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.

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33; Additional Protocol i, Article 51(2); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (Protocol ii), Article 13(2) (June 8, 1977, entered into force Dec. 7, 1978); Terrorism Convention (1937). See also Convention for the Suppression of Unlawful Seizure of Aircraft, 860 u.n.t.s. 105, Articles 1–​2, 4 (Dec. 16, 1970, entered into force Oct. 14, 1971) (hereinafter, “Hijacking Convention (1970)”); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 u.n.t.s. 177, Articles 1, 3, 5 (Sept. 23, 1971, entered into force Jan. 26, 1973) (hereinafter, “Montreal Convention (1971)”). Cf. Christian Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: cup 2005); Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Clarendon Press 1997); André de Hoogh, Obligations Erga Omnes and International Crimes (The Hague: Kluwer International Law 1996). See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, i.c.j. Reports 2019, p. 95, para. 180; Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69; Application of the Genocide Convention (1996), para. 31; Armed Activities on the Territory of the Congo (2006), paras. 64, 125; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 136, paras. 155–​57; East Timor (Portugal v. Australia), Judgment, i.c.j. Reports 1995, p. 90, para. 29 (hereinafter, “East Timor (1995)”); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, i.c.j. Reports 1971, p. 16, para. 126 (hereinafter, “South West Africa (1971)”); Barcelona Traction, Light and Power Company, Limited, Judgment, i.c.j. Reports 1970, p. 3, paras. 33–​34 (hereinafter, “Barcelona Traction (1970)”).

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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. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-​universal character.56 Put differently, the erga omnes status of an obligation derives from the importance of the maintenance of the primary rule from which such obligation derives.57 The primary legal consequence of the erga omnes status of an obligation is a general legal interest in the performance of that obligation. As explained by the ilc in its commentary to the Draft Articles on State Responsibility, in reference to Barcelona Traction, obligations erga omnes refer to “a number, albeit a small one, of international obligations which, by reason of the importance of their subject-​matter for the international community as a whole, are—​unlike the others—​obligations in whose fulfillment all States have a legal interest.”58 Each State bound by an obligation erga omnes has a legal interest in the performance of such obligation by every other bound State. It is this “indivisibility” of legal interest in the performance of an obligation erga omnes, rather than the importance of the underlying primary rule from which such obligation arises, that distinguishes obligations erga omnes from other obligations in international law.59 Elements of this “indivisibility” of obligations erga omnes 56 57

58 59

Barcelona Traction (1970), paras. 33–​34 (internal citation omitted). Fifth Report on State Responsibility (Robert Ago, Special Rapporteur), paras. 99, 151, U.N. Doc. a/​c n.4/​291 Add.1 & 2 and Corr.1, [1976] ii(1) YbILC 3 et seq., at 32, 53, U.N. Doc. a/​ cn.4/​s er.a/​1976/​Add.1 (Part 1) (“The specially important content of certain international obligations and the fact that respect for them in fact determines the conditions of the life of international society are factors which, at least in many cases, have precluded any possibility of derogation from the rules imposing such obligations by virtue of special agreements. These are also the factors which render a breach of these obligations more serious than failure to comply with other obligations.”). Report of the International Law Commission on the Work of its Twenty-​Eighth Session, [1976] ii(2) YbILC 69 et seq., a/​c n.4/​s er.4/​1976/​Add.1 (Part 2), U.N. Doc. A/​31/​10, Draft Article 19, Commentary, para. 10. Fourth Report on State Responsibility (Gaetano Arangio-​Ruiz, Special Rapporteur), para. 92, U.N. Doc. a/​c n.4/​444 and Add.1–​3, [1992] ii(1) YbILC 1 et seq., at 34, U.N. Doc. A/​47/​ 10 (“It is well known … that the concept of erga omnes obligation is not characterized

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were illustrated by the icty Trial Chamber in its Furundžija judgment, in the context of the prohibition of torture—​ Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfillment of the obligation or in any case to call for the breach to be discontinued.60 Obligations erga omnes are closely linked to jus cogens and it has been observed that obligations erga omnes are “virtually coextensive” with jus cogens.61 Functionally, as explained by special rapporteur Crawford in his Fourth Report on State Responsibility, obligations erga omnes are linked to primary rules contained in jus cogens.62 Moreover, as portended by the icj in Barcelona Traction, there is a causal relationship between jus cogens and obligations erga omnes by the importance of the interest protected by the norm (as is typical of jus cogens) but rather by the “legal indivisibility” of the content of the obligation, namely by the fact that the rule in question provides for obligations which bind simultaneously each and every State concerned with respect to all the others. This legal structure is typical not only of peremptory norms, but also of other norms of general international law and of a number of multilateral treaty rules (erga omnes partes obligations).”); see Fifth Report on State Responsibility (Robert Ago, Special Rapporteur), para. 89, U.N. Doc. a/​c n.4/​291 Add.1 & 2 and Corr.1, [1976] ii(1) YbILC 3 et seq., at 29–​30, U.N. Doc. a/​c n.4/​s er.a/​1976/​Add.1 (Part 1). 60 Furundžija, it-​9 5-​1 7/​1 -​t, Judgement, para. 151 (Dec. 10, 1998). 61 Third Report on State Responsibility (James Crawford, Special Rapporteur), U.N. Doc. a/​ cn.4/​507 and Add.1-​4, para. 106(a), [2000] ii(1) YbILC 3 et seq., at 34, U.N. Doc. a/​c n.4/​ ser.a/​2000/​Add.1 (Part 1) (hereinafter, “Third Report on State Responsibility (James Crawford, Special Rapporteur)”). See also Fourth Report on State Responsibility (James Crawford, Special Rapporteur), U.N. Doc. a/​c n.4/​517 and Add.1, para. 49, [2001] ii(1) YbILC 1 et seq., at 13, U.N. Doc. a/​c n.4/​s er.a/​2001/​Add.1 (Part 1) (“even if the two are not different aspects of the one underlying idea, the two substantially overlap.”) (hereinafter, “Fourth Report on State Responsibility (James Crawford, Special Rapporteur)”). But see supra, Chapter 2, n. 35 (discussing self-​determination). 62 Fourth Report on State Responsibility (James Crawford, Special Rapporteur), at 13, para. 49 (“In the context of peremptory norms the emphasis is on the primary rule itself and its non-​derogable or overriding status. … By contrast, the emphasis with obligations to the international community is on the universality of the obligation and the persons or entities to whom it is owed, specifically all States and other legal entities which are members of that community.”).

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such that the latter arise from the former.63 Primary rules belonging to jus cogens give rise under customary international law to obligations erga omnes owed to the international community as a whole. However, it should be noted that the inverse does not follow.64 Obligations erga omnes under customary international law are analogous to obligations erga omnes partes in the law of treaties.65 The erga omnes partes character of certain treaty-​based obligations performs the same function in relation to those treaty obligations as the erga omnes character of obligations under customary international law. The icj articulated this function in its 2012 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) judgment, one reflected in its earlier Barcelona Traction judgment: The States parties to the [Torture] Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. … All the other States parties have a common interest in compliance with [associated] obligations. … That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved. These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case.66

63

See, e.g., Summary Records of the Meetings of the Forty-​Eighth Session, 6 May-​26 July 1996, [1996] i YbILC 26, para. 26, U.N. Doc. a/​c n.4/​s er.a/​1996 (2436th Meeting, statement by Mr. Villagrán Kramer) (“It was clear that there were jus cogens rules which, though not themselves erga omnes, had erga omnes effects: a breach of them could result in an international crime, namely, a serious act prejudicial to an essential interest of the community of States.”). 64 Obligations erga omnes are not necessarily the exclusive domain of jus cogens and may also concern other “essential principles of contemporary international law,” such as the right of peoples to self-​determination. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, i.c.j. Reports 2019, p. 95, para. 180; Construction of a Wall (2004), paras. 88, 155–​57; East Timor (1995), para. 29; South West Africa (1971), para. 126. 65 See Fourth Report on State Responsibility (Gaetano Arangio-​Ruiz, Special Rapporteur), para. 92, U.N. Doc. a/​c n.4/​444 and Add.1-​3, [1992] ii(1) YbILC 1 et seq., at 34, U.N. Doc. A/​47/​10 (identifying a common “legal structure” of obligations erga omnes and obligations erga omnes partes) (hereinafter, “Fourth Report on State Responsibility (Gaetano Arangio-​Ruiz, Special Rapporteur)”). 66 Questions relating to the Obligation to Prosecute or Extradite (2012), para. 68 (citing Barcelona Traction (1970), para. 33).

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The common legal interest in the performance of obligations erga omnes partes “implies the entitlement of each State party to [a multilateral instrument] to make a claim concerning the cessation of an alleged breach by another State party.”67 The performance of obligations erga omnes related to crimes under international law is frequently articulated to constitute positive duties to prevent and punish international crimes. For example, in its Commentary to Article 58 of the Articles on State Responsibility, the ilc stated that, “[w]‌here crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them.”68 The icty Trial Chamber in Furundžija made the same observation in the context of torture: “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.”69 In these examples, State responsibility for failure to prevent international crimes or punish those responsible is contemplated to arise from breach of obligations erga omnes. In practice, obligations to prevent and punish international crimes most commonly arise as obligations erga omnes partes in multilateral instruments defining crimes under international law. Obligations concerning prevention and punishment of crimes under international law are found variously in provisions of multilateral instruments that define primary rules and contemplate individual criminal responsibility for their violation.70 In a number of 67 68

Id. para. 69. ilc Articles on State Responsibility, Article 58, Commentary, para. 3 (emphasis added). See similarly Committee on the Elimination of Racial Discrimination, Inter-​State communication submitted by the State of Palestine against Israel, cerd/​c /​100/​5, para. 3.22 (Dec. 12, 2019) (“The Committee notes that the concept of erga omnes obligations refers to specifically determined obligations that States owe to the international community as a whole, as stated by the International Court of Justice. The Committee also notes that the Court has indicated at least four norms that prohibit aggression, torture, genocide and racial discrimination have an erga omnes character. Obligations are invariably applicable erga omnes whenever the obligations relate to peremptory norms of international law or jus cogens.” (internal citation omitted)) (hereinafter, “cerd Inter-​State Communication (2019)”). 69 Furundžija, it-​9 5-​1 7/​1 -​t, Judgement, para. 142 (Dec. 10, 1998) (emphasis added). The icty Trial Chamber contemplated the potential for State responsibility as arising in the latter case from breach of obligations erga omnes in relation to jus cogens. 70 See, e.g., Geneva Convention i (1949), Article 49; Geneva Convention ii (1949), Article 50; Geneva Convention iii (1949), Article 129; Geneva Convention iv (1949), Article 146; Genocide Convention (1948), Articles iv-​v i; Rome Statute (1998), Part 9 (esp. Article 86); Torture Convention (1984), Articles 2, 4–​8; Convention on the High Seas (1962), Articles 14–​15, 19; unclos (1994), Articles 100–​101, 105; Slavery Convention (1927), Articles 2, 6;

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instances, such obligations to prevent and punish have been explicitly identified as obligations erga omnes partes. For example, the obligations undertaken by States under the Genocide Convention to prevent and punish genocide have been recognized by the icj as obligations erga omnes: [T]‌he obligations of prevention and punishment which are incumbent upon the States parties to the Convention remain identical. … It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.71 This characterization of obligations to prevent and punish the international crime of genocide as obligations erga omnes in the treaty context parallels the relationship described above as arising in customary international law. The icj articulated the same relationship between obligations undertaken by States under the Torture Convention to prevent and punish torture. In its Questions Relating to the Obligation to Prosecute or Extradite judgment, the icj recognized the prohibition of torture as jus cogens,72 and identified obligations to investigate and extradite or prosecute torture under the Torture Convention as erga omnes partes by reference to similar obligations arising under the Genocide Convention: These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case. In this respect, the relevant provisions of the Convention against Torture are similar to those of the Convention on the Prevention and Punishment of the Crime of Genocide[.]‌73 Similarly, the Committee on the Elimination of Racial Discrimination has identified obligations related to the prohibition of racial discrimination undertaken

71 72 73

Supplemental Slavery Convention (1957), Articles 3, 5–​7; Apartheid Convention (1976), Articles i, iv; Hijacking Convention (1970), Articles 1–​2, 4; Montreal Convention (1971), Articles 1, 3, 5. The common legal structure of obligations erga omnes and obligations erga omnes partes is identified by the ilc: see Fourth Report on State Responsibility (Gaetano Arangio-​Ruiz, Special Rapporteur), at 34, para. 92. Application of the Genocide Convention (1996), para. 31. Accord. Application of the Genocide Convention (2015), para. 87; Application of the Genocide Convention (2020), para. 41. Questions relating to the Obligation to Prosecute or Extradite (2012), para. 99. Id. paras. 68–​69.

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by States parties to the Convention on the Elimination of All Forms of Racial Discrimination as erga omnes obligations.74 It is presumably not the case that all obligations under such multilateral instruments constitute obligations erga omnes partes conferring standing to all States parties. In Questions Relating to the Obligation to Prosecute or Extradite,75 the icj implied a linkage between obligations erga omnes partes undertaken in multilateral instruments and parallel obligations erga omnes arising under customary international law by relying upon its previous judgments in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide and Barcelona Traction.76 A linkage between obligations erga omnes partes in treaty law and obligations erga omnes in customary international law, not only in function but also in substance, might offer some guidance in identifying which obligations in a multilateral instrument addressing an international crime are properly regarded as erga omnes partes.

∵

The foregoing discussion demonstrates that there is overlap between jus cogens, obligations erga omnes, and crimes defined under international law. For example, a crime defined under international law (e.g., the crime of genocide) reflects a primary rule belonging to jus cogens (i.e., the prohibition of genocide) which gives rise to associated obligations erga omnes (e.g., to prevent and punish genocide). For purposes of this study, it is sufficient to identify this overlap in primary rules.77 These primary rules have various and distinct, 74

75

76 77

cerd Inter-​State Communication (2019), para. 3.42 (“One of the obligations for all States parties is the prohibition of all forms of racial discrimination which, according to the International Court of Justice in Barcelona Traction, is an erga omnes obligation.” (internal citation omitted)). Questions relating to the Obligation to Prosecute or Extradite (2012). Cf. Mads Andenas and Thomas Weatherall, II. International Court of Justice: Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal), Judgment of 20 July 2012, 62(3) iclq 753–​769 (2013). Id. para. 68 (citing Barcelona Traction (1970), para. 33, and Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, i.c.j. Reports 1951, p. 15, 23 (hereinafter, “Reservations to the Genocide Convention (1951)”)). See similarly André Nollkaemper, Systemic Effects of International Responsibility for International Crimes, 8(1) Santa Clara Journal of International Law 313, 332 (2010) (“[S]‌tates can be directly responsible for acts that, at the individual, are qualified as international crimes. … It is to be taken into account here that the norms that prohibit certain acts by the state are not necessarily the same as those applying to individuals—​ but in substance they apply to and proscribe the same acts.”); Bonafè, op. cit. 246 (“the unity of primary norms can satisfactorily explain the relationship between state and individual responsibility.”).

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though interdependent, implications for individuals and States under international law, which are defined by the operation of secondary rules.78 The operation of secondary rules in relation to such primary rules, in turn, informs the parameters of dual responsibility in international law. The subsequent parts of this monograph address the operation of secondary rules relevant to duality of responsibility with a view toward elucidating the allocation of responsibility respectively to the individual and the State for conduct addressed by the primary rules discussed above.79 b

Secondary Rules

Distinguishing Secondary Rules of Individual and State Responsibility The responsibility of individuals and that of States under international law are generally regarded as independent systems.80 The separation of questions of i

78

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In this regard, a distinction is made in this monograph between the substance of a primary rule and related secondary rules that govern, for example, the consequences of its breach. This distinction is sometimes blurred: see, e.g., Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 631–​648 (2007) (arguing that “under international law the criminal liability of individuals and state responsibility for genocide are not triggered by the violation of the same primary rule.”) (citing P.-​M. Dupuy, International Criminal Responsibility of the Individual and International Responsibility of the State, in Antonio Cassese et al. [Eds.], The Rome Statute of the International Criminal Court: A Commentary 1095 (Oxford: oup 2002) (“One ought to note a radical difference in foundation between individual criminal responsibility, founded on fault and intention, and the State’s international responsibility, founded on the wrongful act.”)). The assessment of duality of responsibility in this monograph is concerned with primary rules of international law that belong to jus cogens, the violation of which are defined as crimes under international law. Arguably, these two categories are coextensive. However, even if these categories do not fully overlap, the assessment in this monograph addresses primary rules for which there is such overlap (i.e., the primary rule is a peremptory norm and conduct in violation of such rule is defined as a crime under international law). This monograph assumes, at minimum, that primary rules the breach of which are defined as crimes under international law also belong to jus cogens. At its narrowest formulation, this category would include the so-​called “core crimes” of genocide, crimes against humanity, war crimes, and aggression. The oldest crimes under international law, piracy and slavery, may in principle be added to this category. Crimes more recently defined under international law in the post-​World-​War era—​apartheid, torture, and terrorism, which themselves are constituent crimes of certain core crimes—​are also leading candidates for inclusion in this category. This monograph does not define the horizon of overlap between peremptory norms and crimes under international law, but rather, examines the operation of secondary rules relevant to primary rules where such overlap is present. See supra, Introduction, n. 1.

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individual and State responsibility reflects the applicability of distinct sets of secondary rules governing these respective forms of responsibility. In its 2015 Application of the Genocide Convention judgment, the icj was explicit in distinguishing between secondary rules applicable to individual and State responsibility, respectively: State responsibility and individual criminal responsibility are governed by different legal régimes and pursue different aims. The former concerns the consequences of the breach by a State of the obligations imposed upon it by international law, whereas the latter is concerned with the responsibility of an individual as established under the rules of international and domestic criminal law, and the resultant sanctions to be imposed upon that person.81 The ilc emphasized this same distinction in its commentary to the Articles on State Responsibility, in reference to the Rome Statute, and indicated that this divergence is a product of the distinct forms of responsibility in question: Article 58 … mak[es] it clear that the articles do not address the question of the individual responsibility under international law of any person acting on behalf of a State. The term “individual responsibility” has acquired an accepted meaning in the light of the Rome Statute and other instruments; it refers to the responsibility of individual persons, including State officials, under certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.82 The ilc articulated a similar distinction in its commentary to the Draft Code of Crimes against the Peace and Security of Mankind, where it explained that “[State] responsibility is of a different nature and falls within the traditional concept of State responsibility … [and] cannot be governed by the same régime as the criminal responsibility of individuals[.]‌”83 There appears to be 81

82 83

Application of the Genocide Convention (2015), para. 129. Cf. Werle and Jessberger, op. cit. 43–​45; Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31(5) California Law Review 530–​571 (1943). ilc Articles on State Responsibility, Article 58, Commentary, para. 4. Report of the Commission to the General Assembly on the Work of its Thirty-​Sixth Session, para. 32, U.N. Doc. A/​39/​10, [1984] ii(2) YbILC 7 et seq., at 11, U.N. Doc. a/​c n.4/​ ser.a/​1984/​Add.1 (Part 2) (Draft Code of Offences Against the Peace and Security of Mankind). Note that the concept of crimes of States was ultimately omitted from the ilc

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little question that the secondary rules governing State responsibility are distinct from the secondary rules governing individual criminal responsibility under international law. Notwithstanding this delineation between the secondary rules governing individual and State responsibility under international law, the application of the secondary rules of State responsibility may entail reference to application of secondary rules of individual responsibility. For instance, application of the secondary rules of State responsibility will depend on identification of individual conduct in breach of a relevant primary rule, which determination is the province of application of the secondary rules of individual responsibility. The icj explained its methodology in this regard in its 2015 Application of the Genocide Convention judgment: It is for the Court, in applying the Convention, to decide whether acts of genocide have been committed, but it is not for the Court to determine the individual criminal responsibility for such acts. That is a task for the criminal courts or tribunals empowered to do so, in accordance with appropriate procedures. The Court will nonetheless take account, where appropriate, of the decisions of international criminal courts or tribunals, in particular those of the icty, as it did in 2007, in examining the constituent elements of genocide in the present case. If it is established that genocide has been committed, the Court will then seek to determine the responsibility of the State, on the basis of the rules of general international law governing the responsibility of States for internationally wrongful acts.84 In other words, while individual and State responsibility are separate legal questions, adjudged by separate judicial organs,85 and distinct secondary rules

84 85

Articles on State Responsibility, which were contemporaneously subject to review by the ilc. See discussion infra, Chapter 4.c.iii (Crimes of States). Application of the Genocide Convention (2015), para. 129. For the corollary to the passage above, note, for example, the instruments establishing subsequent international criminal courts and tribunals—​e.g., the icty, ictr, icc, and mict—​as well as hybrid courts and tribunals—​e.g., the scsl, eccc, and stl—​provide for individual criminal responsibility but do not contemplate State criminal responsibility. See, e.g., Application of the Genocide Convention (2007), para. 403 (“the icty was not called upon … nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons only.”); Application of the Genocide Convention (2015), para. 490 (“It should be emphasized that the task of the [icty] Appeals Chamber was to rule on the individual criminal responsibility of two high-​ranking Croatian officials, and not on that of other [organs] … and—​obviously—​still

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govern individual and State responsibility under international law, the application of secondary rules of State responsibility in the context of primary rules which give rise to duality of responsibility is referential to the secondary rules of individual responsibility. It therefore does not follow from the differentiation between individual and State responsibility and associated secondary rules that the application of the secondary rules of State responsibility is siloed from the secondary rules of individual responsibility. Rather, the secondary rules of individual responsibility are highly relevant to the application of the secondary rules of State responsibility.86 While the practical relationship between the secondary rules of individual and State responsibility is examined in the subsequent parts of this monograph, it bears emphasizing at this stage that the secondary rules of State responsibility of general applicability apply when assessing State responsibility for individual conduct amounting to international crimes. For example, the icj, in its 2007 Application of the Genocide Convention judgment, explained that—​ [t]‌he rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. … This is the state of customary international law, as reflected in the ilc Articles on State Responsibility.87 In reference to this judgment, the icj reiterated this point in its 2015 Application of the Genocide Convention judgment, where it again contemplated the secondary rules applicable to attribution of breaches of the Genocide Convention to a State.88 There, the icj contemplated that breach of the obligation not to commit genocide “may consist of acts, attributable to the State, committed by a person or a group of persons whose individual criminal responsibility has already been established,” and that State responsibility may also arise in the absence of “an individual being convicted of the crime or an associated one.”89

86 87 88 89

less on the international responsibility of Croatia, which is the task incumbent upon this Court.”); Prlić et al., it-​04-​74-​a , Decision on Application by the Republic of Croatia for Leave to Appear as Amicus Curiae and to Submit Amicus Curiae Brief, para. 9 (July 18, 2016) (“The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to ‘natural persons’ and the Tribunal does not have the competency to make findings on state responsibility.”). See discussion infra, Chapter 8.b (Double Attribution). See discussion infra, Chapter 5 (Breach and the Interaction of Primary and Secondary Rules); Chapter 8 (Convergence and Divergence in Attribution). Application of the Genocide Convention (2007), para. 401. Application of the Genocide Convention (2015), para. 128. Id. (quoting Application of the Genocide Convention (2007), paras. 180, 182).

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Notwithstanding the nature of the conduct at issue—​crimes under international law—​the icj looked to the secondary rules of State responsibility of general applicability: In either of these situations, the Court applies the rules of general international law on the responsibility of States for internationally wrongful acts. Specifically, Article 3 of the ilc Articles on State Responsibility, which reflects a rule of customary law, states that ‘[t]‌he characterization of an act of a State as internationally wrongful is governed by international law’.90 The ilc expressed this same conclusion in its commentary to the Articles on State Responsibility, where it emphasized that neither the gravity of the breach of an international law obligation, nor the peremptory character of the primary rule at issue, impacts the applicable secondary rules of State responsibility.91 The operation of the secondary rules of State responsibility of general applicability in the context of dual responsibility warrants particular emphasis. Scholarship has reflected a tendency at times to propose special regimes of State responsibility in reference to attribution of individual conduct amounting to international crimes.92 While, under certain circumstances, breaches of primary rules (i.e., obligations arising from peremptory norms) may give rise to particular consequences under international law,93 such consequences 90 91

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Id. ilc Articles on State Responsibility, Article 12, Commentary, para. 6 (“[T]‌he regime of State responsibility for breach of an international obligation … is comprehensive in scope, general in character and flexible in its application … [,] thus able to cover the spectrum of possible situations without any need for further distinctions between categories of obligation concerned or the category of the breach.”). See also id. para. 7 (“[O]bligations imposed on States by peremptory norms necessarily affect the vital interests of the international community as a whole and may entail a stricter regime of responsibility than that applied to other internationally wrongful acts. But … there is a unitary regime of State responsibility which is general in character.”). See, e.g., Bonafè, op. cit. 17–​23 (proposing a regime of “aggravated State responsibility” where an internationally wrongful act reaches a threshold of seriousness); Gaeta, op. cit. 636 (arguing that State responsibility arises for genocide “only when individual criminality runs alongside a systemic pattern of criminality organized, tolerated, or acquiesced in by the state.”); Nollkaemper (2003), op. cit. 623 (describing a “special regime of State responsibility” for serious breaches of obligations arising under peremptory norms). Cf. Nina H. B. Jørgensen, The Responsibility of States for International Crimes (Oxford: oup 2000). See, e.g., ilc Articles on State Responsibility, Articles 40–​ 41. See discussion infra, Chapter 9.b (Consequences of an Internationally Wrongful Act).

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are distinct from the secondary rules governing State responsibility for such breaches.94 There does not appear to be a basis under present international law to deviate from the secondary rules of State responsibility of general applicability when attributing to the State breaches of obligations arising from primary rules whose breach also gives rise to individual criminal responsibility. ii Secondary Rules of Individual Responsibility Individual criminal responsibility under international law is governed by secondary rules specific to crimes under international law. International criminal law relies to a significant degree on general principles of law reflected in the criminal law of domestic legal systems.95 One such general principle is the structure of crimes as constituting an objective element (actus reas) and a subjective element (mens rea).96 Secondary rules governing the attribution of crimes under international law for purposes of engaging individual criminal responsibility are similarly informed by general principles of law, which fall broadly into categories of commission, encouragement, assistance, and superior responsibility.97 iii Secondary Rules of State Responsibility The secondary rules governing State responsibility in international law are defined in terms of internationally wrongful acts.98 According to the ilc Articles on State Responsibility, there is an internationally wrongful act of a State when conduct, constituting an act or omission, is “attributable to the State under international law” and “constitutes a breach of an international obligation of the State.”99 An internationally wrongful act is therefore the result of a breach of a primary rule of international law which is attributable to the State, which thereby engages its responsibility.100 Underlying the mechanics of attribution is the reality that any act of the State “must involve 94

ilc Articles on State Responsibility, Article 12, Commentary, para. 6 (“Questions of the gravity of the breach and the peremptory character of the obligation breached can affect the consequences which arise for the responsible State and, in certain cases, for other States also. … But the regime of State responsibility for breach of an international obligation … is comprehensive in scope, general in character and flexible in its application … [,]‌thus able to cover the spectrum of possible situations without any need for further distinctions between categories of obligation concerned or the category of the breach.”). 95 First Report on General Principles of Law (Marcelo Vázquez-​ Bermúdez, Special Rapporteur), U.N. Doc. a/​c n.4/​732, para. 133 (Apr. 5, 2019). 96 See discussion infra, Chapter 3 (Crimes under International Law). 97 See discussion infra, Chapter 6 (Rules of Attribution in International Criminal Law). 98 See discussion infra, Chapter 4 (Internationally Wrongful Acts). 99 ilc Articles on State Responsibility, Article 2. 100 See discussion infra, Chapter 4.a (Elements of State Responsibility).

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some action or omission by a human being or group.”101 Secondary rules in the law of State responsibility identify the circumstances under which conduct is properly regarded as an act of the State.102 Such conduct includes that of State organs and de facto State organs, the ultra vires conduct of such actors, and other circumstances in which conduct may be attributable to the State. iv Associated Secondary Rules Although the parameters of dual responsibility are largely defined by the secondary rules governing individual and State responsibility, a host of other secondary rules shape their application in practical ways. These associated ­secondary rules require particular analysis in the context of dual responsibility because their operation is impacted by the character of the primary rules at issue and reflects both convergence and divergence with the secondary rules governing responsibility. These secondary rules associated with responsibility may be grouped roughly into categories of consequences of responsibility, preclusion of responsibility (i.e., defenses), jurisdiction to adjudge responsibility, and immunity from jurisdiction. 1 Consequences The consequences of individual responsibility for international crimes—​ prescribed by instruments codifying international crimes and the statutes organizing international and hybrid judicial organs competent to prosecute such crimes—​are penal in character.103 This is reflected in the purposes of penalties for international crimes, which have been articulated primarily as retribution and deterrence.104 Where such crimes are prosecuted before a competent court or tribunal, deprivation of liberty and property interests are the primary penalties available for conviction. By contrast, the primary consequences for a State responsible for an internationally wrongful act are obligations of cessation of and reparation for such wrongful conduct.105 In addition, there is support for the proposition that breach of primary rules associated with international crimes (i.e., peremptory norms), or obligations erga omnes arising therefrom, give rise to consequences not only for the responsible State,

1 01 102 103 104 105

ilc Articles on State Responsibility, Article 2, Commentary, para 5. See discussion infra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). See discussion infra, Chapter 9.a (Consequences of Individual Criminal Responsibility). See, e.g., Brđanin, it-​99-​36-​t, Judgement, para. 1090 (Sept. 1, 2004). ilc Articles on State Responsibility, Article 28, Commentary, para. 2. See discussion infra, Chapter 9.b (Consequences of an Internationally Wrongful Act).

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but also for third States.106 The ilc has suggested that, where the breach of a primary rule is “serious,” such consequences include obligations of non-​recognition and non-​maintenance as well as a positive duty to cooperate to bring an end to such breach.107 In addition, broader rules of standing apply to breach of obligations protecting common interests, i.e., obligations erga omnes and obligations erga omnes partes.108 States other than an injured State are entitled to invoke responsibility for breach of such obligations.109 The standing of each State—​either as a member of the international community as a whole, or as party to a relevant multilateral international agreement—​to invoke the responsibility of another State for breach of such obligations is linked to the general legal interest of all States to which such obligations are owed in the performance of such obligations.110 2 Defenses Both international criminal law and the law of State responsibility admit defenses. Under international criminal law, defenses refer to grounds for excluding criminal responsibility.111 The substantive defenses recognized in international criminal law consist mainly of general principles of law derived from domestic legal systems.112 The law of State responsibility similarly admits certain circumstances under which wrongfulness does not attach to a State’s breach of an international obligation.113 Circumstances precluding wrongfulness operate similarly to particular defenses in domestic law systems and, as the ilc has observed, often do so “under the same designation.”114 With respect to the availability both defenses under international criminal law and circumstance precluding wrongfulness under the law of State responsibility,

106 See ilc Articles on State Responsibility, Articles 40–​41. The icj contemplates such consequences in relation to the erga omnes character of the obligation breached. See, e.g., Construction of a Wall (2004), para. 159; South West Africa (1971), para. 126. 107 ilc Articles on State Responsibility, Article 41 (Particular consequences of a serious breach of an obligation under this chapter). 108 Id., Article 48 (Invocation of responsibility by a State other than an injured State). 109 Id., Article 48, Commentary, para. 2. 110 See, e.g., Barcelona Traction (1970), paras. 33–​34. 111 See discussion infra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law). 112 See, e.g., Kordić and Čerkez, it-​95-​14/​2-​t, Judgement, para. 449 (Feb. 26, 2001). 113 See discussion infra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). 114 See ilc Articles on State Responsibility, Part One, Chapter v, Commentary, para. 7.

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questions arise where the primary rules at issue are peremptory norms from which no derogation is permitted.115 3 Jurisdiction Jurisdiction, or jurisdiction to adjudicate, refers to “the authority of a state to apply law to persons or things, in particular through the processes of its courts or administrative tribunals.”116 With respect to jurisdiction over individuals for international crimes, both international and domestic courts—​as well as hybrid courts—​exercise jurisdiction over international crimes.117 Notably, domestic courts, in addition to the general bases of jurisdiction—​territory, nationality, protective, and passive personality—​are empowered to exercise jurisdiction on the basis of the principle of universality over individuals with respect to international crimes. Universal jurisdiction is distinct from other bases of jurisdiction and provides an additional basis upon which States may assert jurisdiction over international crimes in the absence of other bases of jurisdiction.118 Jurisdiction over States under international law is governed by distinct secondary rules.119 With respect to jurisdiction over States for internationally wrongful acts, the competence of an international or domestic court or tribunal depends upon the consent of that State to such jurisdiction.120 115 See, e.g., Antonio Cassese et al. [Eds.], Cassese’s International Criminal Law 210 (Oxford: 3d ed. oup 2013); ilc Articles on State Responsibility, Article 26. 116 See Restatement (Fourth) of Foreign Relations Law § 401 (2018) (Categories of Jurisdiction). 117 See discussion infra, Chapter 11.a (Jurisdiction over Individuals under International Law). 118 au-​e u Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction Report, 8672/​1/​09 Rev 1 (Annex), paras. 8–​9 (Apr. 16, 2009) (hereinafter, “au-​e u Universal Jurisdiction Report (2009)”); Restatement (Fourth) of Foreign Relations Law § 413 (2018) (Universal Jurisdiction) (“International law recognizes a state’s jurisdiction to prescribe law with respect to certain offenses of universal concern, such as genocide, crimes against humanity, war crimes, certain acts of terrorism, piracy, the slave trade, and torture, even if no specific connection exists between the state and the persons or conduct being regulated.”). 119 See discussion infra, Chapter 11.b (Jurisdiction over States under International Law). 120 Case of the Monetary Gold removed from Rome in 1943 (Preliminary Question), Judgment of June 15th, 1954, i.c.j. Reports 1954, p. 19, 32 (“To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-​established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.”) (hereinafter, “Monetary Gold (1954)”). Accord., e.g., East Timor (1995), para. 26 (“The Court recalls in this respect that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction.”); Armed Activities on the Territory of the Congo (2006), para. 125 (Referring to “the principle that its jurisdiction always depends on the consent of the parties.”).

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Neither the violation of a norm belonging to jus cogens,121 nor the breach of an obligation erga omnes,122 is sufficient to engage the jurisdiction of an international or domestic court or tribunal. 4 Immunity Immunity under international law is functionally related to the secondary rules of both individual and State responsibility.123 Immunity operates as a procedural bar to jurisdiction and “the application of immunity from jurisdiction will have the effect of immobilizing the competent jurisdiction.”124 Three forms of immunity derive from sovereign immunity under customary international law: immunity ratione personae (immunity from personal jurisdiction),125 immunity ratione materiae (immunity from subject-​matter jurisdiction),126 and the jurisdictional immunity of the State,127 which consists of both ratione personae and ratione materiae elements. Immunity is linked to responsibility under international law by the operation of attribution, which imputes individual conduct to the State, and has significant implications for dual responsibility under international law which are explored in Chapters 8 and 12. 121 Armed Activities on the Territory of the Congo (2006), para. 64 (“[T]‌he fact that a dispute relates to compliance with a norm having such a [jus cogens] character … cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute.”). 122 East Timor (1995), para. 29 (“[T]‌he erga omnes character of a norm and the rule of consent to jurisdiction are two different things.”). 123 See discussion infra, Chapter 12 (Immunity). 124 Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction (Concepción Escobar Hernández, Special Rapporteur), U.N. Doc. a/​c n.4/​722, para. 98 (June 12, 2018) (hereinafter, “Sixth Report on Immunity of State Officials (Concepción Escobar Hernández, Special Rapporteur)”). Immunity may be characterized as a limitation of a State’s exercise of adjudicative jurisdiction. See discussion infra, Chapter 11.a (Jurisdiction over Individuals under International Law). 125 Arrest Warrant (2002), paras. 53–​54. 126 Blaškić (1997), para. 41. 127 Jurisdictional Immunities of the State (2012), para. 93.

pa rt 2 Breach

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­c hapter 3

Crimes under International Law a

Elements of Individual Criminal Responsibility

International criminal law makes regular reference to general principles of law within the meaning of Article 38(1)(c) of the icj Statute.1 One such general principle is the structure of crimes as constituting an objective element (actus reas) and a subjective element (mens rea). The United State Supreme Court, in Morissette, wrote that “[c]‌rime, as a compound concept, generally constituted only from concurrence of an evil-​meaning mind with an evil-​doing hand.”2 The Court identified this “relation between some mental element and punishment for a harmful act” as “universal and persistent in mature systems of law.”3 Seizing on the framing adopted by the Supreme Court, the icty Trial Chamber, in Delalić et al., relied on Morissette to support its finding that the compound concept of crime is a general principle of law. It is apparent that it is a general principle of law that the establishment of criminal culpability requires an analysis of two aspects. The first of these may be termed the actus reus—​the physical act necessary for the offence. … The second aspect of the analysis … relates to the necessary mental element, or mens rea.4 It is widely accepted in scholarship that crimes under international law reflect this bipartite structure commonly found in domestic systems.5 The two

1 First Report on General Principles of Law (Marcelo Vázquez-​Bermúdez, Special Rapporteur), U.N. Doc. a/​c n.4/​732, para. 133 (Apr. 5, 2019). 2 Morissette v. United States, 342 U.S. 246, 251 (1952). 3 Id. at 250–​251. 4 Delalić et al., it-​96-​21-​t, Judgement, paras. 424–​425 (Nov. 16, 1998) (internal citation omitted). 5 Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 175–​176 (Oxford: 3d ed. oup 2014) (“[I]‌t is recognized as a general principle of law that the material elements of an act and a subjective element related to the perpetrator’s perceptions (mental element) must coincide in order to constitute a crime.”); Antonio Cassese et al. [Eds.], Cassese’s International Criminal Law 38–​40 (Oxford: 3d ed. oup 2013); Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part 99–​100 (Oxford: oup 2013); Elies van Sliedregt, Individual Criminal Responsibility in International Law 39 (Oxford: oup 2012).

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elements are sometimes referred to by different terms. For example, while the ictr and icty refer to the objective element as actus reas, the Rome Statute refers to the objective element as the “material element.”6 Similarly, the two ad hoc tribunals refer to the subjective element as mens rea, while the Rome Statute refers in this sense to the “mental element.” Whatever nomenclature is used to denote the objective and subjective elements of crimes, international criminal law adopts the same two-​part structure with respect to crimes under international law. As in the domestic systems from which this bipartite structure derives, the elements of crimes must be proved “beyond a reasonable doubt.”7 i The Objective Element The objective element of crime, actus reas, refers to the “guilty act” that constitutes the physical aspect of a crime.8 In domestic law, the objective, or material, elements of crime are commonly understood to refer to (i) conduct, (ii) attendant circumstance, or (iii) a result of conduct.9 The same element analysis is 6

See Rome Statute (1998), Article 30. Note, however, that the icty and ictr Statutes do not expressly refer to these two elements, which are instead articulated in the caselaw of the tribunals. 7 See, e.g., icty Rules of Procedure and Evidence, Rule 87(A), it/​32/​Rev.50 (July 8, 2015) (hereinafter, “icty rpe”); ictr Rules of Procedure and Evidence, Rule 87(A) (May 13, 2015) (hereinafter, “ictr rpe”); scsl Rules of Procedure and Evidence, Rule 87(A) (Oct. 20, 2020) (hereinafter, “scsl rpe”); mict Rules of Procedure and Evidence, Rule 104(A), mict/​ 1/​Rev.6 (Dec. 18, 2019) (hereinafter, “mict rpe”); Rome Statute (1998), Article 66(3); stl Rules of Procedure and Evidence, Rule 148(A), stl-​bd-​2009-​01-​Rev.11 (Dec. 18, 2020) (hereinafter, “stl rpe”). As a general principle of criminal law, cf. Jeremy Horder, Ashworth’s Principles of Criminal Law 11 (Oxford: 9th ed. oup 2019); David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law 50–​51 (Oxford: 14th ed. oup 2015); van Sliedregt, op. cit. 39. 8 Black’s Law Dictionary, Actus Reus (11th ed. 2019). 9 Horder, op. cit. 102; Ormerod and Laird, op. cit. 50–​51. See, e.g., American Law Institute, U.S. Model Penal Code, Part i, Article 1, Section 1.13 (as Adopted at the 1962 Annual Meeting of The American Law Institute at Washington, D.C., May 24, 1962) (Philadelphia: The American Law Institute 1985) (hereinafter, “U.S. Model Penal Code”) (“(9) ‘element of an offense’ means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense; or (b) establishes the required kind of culpability; or (c) negatives an excuse or justification for such conduct; or (d) negatives a defense under the statute of limitations; or (e) establishes jurisdiction or venue; (10) ‘material element of an offense’ means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, ­incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct[.]‌”); The Law Commission, A Criminal Code for England and Wales, Law Com. No. 177, Vol. 1 (Report and Draft Criminal Code Bill), Part i, cl. 15 (London: Her Majesty’s Stationery Office 1989) (hereinafter, “A Criminal Code for England and Wales”) (External elements of offences) (“A reference in this Act to an

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applicable to crimes under international law, such that the objective elements of an international crime can be categorized by type—​conduct, circumstance, and consequence.10 Conduct refers to the specific act prohibited by the material element of the crime. In some limited instances, the objective element expressly defines omission as satisfying the material element.11 Circumstance, sometimes referred to as attendant circumstance, refers to the presence of facts, which do not refer to the conduct itself or its consequences.12 Two examples, war crimes and crimes against humanity, highlight the role of circumstance. A material element of war crimes is that the relevant conduct occur in the context of an armed conflict; the presence of an armed conflict is a material element of attendant circumstance.13 Similarly, a material element of crimes against humanity is that the relevant conduct occur in the context of a widespread or systematic attack directed at a civilian population; the presence of such an attack is a material element of attendant “act” as an element of an offence refers also, where the context permits, to any result of the act, and any circumstance in which the act is done or the result occurs, that is an element of the offence, and references to a person’s acting or doing an act shall be construed accordingly.”); Criminal Code Act 1995 (Australia), No. 12, 1995, Compilation No. 131, Ch. 2, Part 2.2, Div. 4, Sec. 4.1(1) (Mar. 20, 2020) (hereinafter, “Criminal Code Act 1995 (Australia)”) (Physical elements) (“(1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs.”); Law Reform Commission of Canada, Recodifying Criminal Law, Report 31, Chapter 2, cl. 2(4) (Ottawa and Montréal: Law Reform Commission of Canada 1987) (hereinafter, “Recodifying Criminal Law (Canada)”) (Requirements for Culpability) (defining aspects of fault in relation to “conduct,” “consequences,” and “circumstances”). 10 Ambos, op. cit. 270–​274. See, e.g., Rome Statute (1998), Article 30 (referring to “conduct,” “circumstance,” and “consequence”); Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, para. 136 n. 182 (June 15, 2009) (“The general objective (material) elements of a crime are referred to in article 30(2) and (3) of the Statute as conduct, consequence and circumstance.”); see also id. para. 355 (“[A]‌rticle 30(2) and (3) of the Statute is constructed on the basis of an element analysis approach—​as opposed to—​ a crime analysis approach, according to which different degrees of mental element are assigned to each of the material elements of the specific crime under consideration.”). 11 See, e.g., Rome Statute (1998), Article 28 (Responsibility of commanders and other superiors); Stanišić and Župljanin, it-​08-​91-​a , Judgement, paras. 110, 732 (June 30, 2016) (Contribution to a joint criminal enterprise “by omission.”). For commentary, cf. Ambos, op. cit. 100, 180-​232; van Sliedregt, op. cit. 55–​56; Werle and Jessberger (2014), op. cit. 173. 12 Ambos, op. cit. 273, 276; Werle and Jessberger (2014), op. cit. 174–​175. 13 See, e.g., Elements of Crimes, Article 8(2)(a)(i)(5) (“The perpetrator was aware of factual circumstances that established the existence of an armed conflict.”).

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circumstance.14 In each example, the presence of the attendant circumstance is a legal fact independent of the conduct of the individual or its consequence. Consequence refers to the effects of the wrongful conduct. Generally, such consequence is the harm arising from the conduct or the danger to a protected interest arising therefrom.15 Where a consequence of conduct constitutes an objective element of crime, the conduct and consequence must be linked by causation.16 That is, the consequence must be the result of the wrongful conduct.17 ii The Subjective Element The subjective element of crime, mens rea, refers to “guilty mind” or criminal intent, and constitutes the state of mind necessary to convict an individual of a particular crime.18 There are generally four aspects of fault that define a culpable state of mind for purposes of the subjective element, namely, where an individual acted purposely, knowingly, recklessly, or negligently.19 These alternative modes of fault within the substantive element of crime may be viewed hierarchically in terms of the perceived likelihood that that the conduct at issue would bring about the wrongful result. This subjective element is typically applied to each objective element of the crime. The subjective element of

14 15 16 17 18 19

Rome Statute (1998), Article 7(1) (“with knowledge of the attack”). Werle and Jessberger (2014), op. cit. 173–​174; Ambos, op. cit. 272. Werle and Jessberger (2014), op. cit. 173; Ambos, op. cit. 272. See, e.g., Rome Statute (1998), Article 8(2)(a)(iii) (“Wilfully causing great suffering, or serious injury to body or health”); Article 8(2)(b)(x) (“…which cause death to or seriously endanger the health of such person or persons”). Black’s Law Dictionary, Mens Rea (11th ed. 2019). See, e.g., U.S. Model Penal Code, Part i, Article 2, Section 2.02(1) (Minimum Requirements of Culpability) (“Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.”); Criminal Code Act 1995 (Australia), Ch. 2, Part 2.2, Div. 5, Sec. 5.1 (Fault elements) (“A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.”); Recodifying Criminal Law (Canada), Chapter 2, cl. 2(4) (Requirements for Culpability) (identifying fault elements of purpose, recklessness, and negligence (and incorporating knowledge within the term purpose)). See relatedly R. v. Sault Ste. Marie, [1978] 2 scr 1299, 1309–​1310 (May 1, 1978) (Canada) (“The Mens Rea Point. … Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction.”). Cf. Horder, op. cit. 174–​176; Ormerod and Laird, op. cit. 113–​114. In international law, see, e.g., van Sliedregt, op. cit. 40–​52; Cassese et al., op. cit. 40–​57.

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crime provides that criminal liability is imposed on an individual only where such individual has “subjectively” associated themselves with the relevant objective element.20 In this way, mens rea is contemplated at Article 30(1) of the Rome Statute as the “mental element” that must accompany the objective elements of a crime in order to engage an individual’s criminal responsibility.21 This subjective element will be satisfied, mutatis mutandis, where the individual purposely, knowingly, recklessly, or negligently associates themselves with an objective element of the crime.22 An individual acts purposely, or with intent, with respect to an objective element where that individual, with regard to conduct, intends to engage in conduct of such nature or, with regard to consequence, intends to bring about such a result. A definition of intent is found, for example, in Article 30(2) of the Rome Statute: “a person has intent where: (a) [i]‌n relation to conduct, that person means to engage in the conduct; (b) [i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.”23 This construction of intent, sometimes referred to as dolus directus, reflects the concept of intent found in domestic legal systems, and appears to be heavily influenced in particular by common law construction.24 Of particular note is reference of intent to conduct and result. Intent 20 Horder, op. cit. 176 (discussing the principle of “correspondence”). 21 Rome Statute, Article 30(1). Note that, despite reference to “intent and knowledge” (emphasis added), Article 30(1) does not require both intent and knowledge to accompany each material element. Cf. Werle and Jessberger (2014), op. cit. 178–​179; van Sliedregt, op. cit. 46. 22 The discussion that follows illustrates that the four modes of fault, characteristic of common law systems, arise in international criminal law. This section does not seek to identify nuance in the application of these fault modes across different international courts and tribunals, nor between their applications in international and domestic systems. Rather, the purpose of this section is simply to identify the alternative modes of fault available under international criminal law. 23 Rome Statute (1998), Article 30(2). 24 See, e.g., U.S. Model Penal Code, Part i, Article 2, Section 2.02(2)(a) (“Purposely. A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.”); A Criminal Code for England and Wales, Law Com. No. 177, Vol. 1 (Report and Draft Criminal Code Bill), Part i, cl. 18(b) (London: Her Majesty’s Stationery Office 1989) (hereinafter, “A Criminal Code for England and Wales”) (“a person acts … ‘intentionally’ with respect to [] (i) a circumstance when he hopes or knows that it exists or will exist; (ii) a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events[.]‌”); Criminal Code Act 1995 (Australia), Ch. 2, Part 2.2, Div. 5, Sec. 5.2 (“(1) A person has intention with respect to conduct if he

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reflects a volitional element such that a person knows their conduct will bring about the objective elements of the crime and undertakes such conduct with the intent to bring about such result.25 Intent is the highest degree of fault in criminal law. Some crimes under international law contain additional subjective requirements, or dolus specialis, that must accompany the objective elements of the crime.26 An individual acts knowingly, with respect to an objective element, where that individual, with regard to the nature of their conduct or attendant circumstances, is aware of such nature or circumstances, or with respect to result, is practically certain the conduct will produce a particular result. A definition of knowledge is found, for example, at Article 30(3) of the Rome Statute: “‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”27 This construction of “knowledge,” sometimes referred to as second degree dolus directus, also finds expression in domestic legal systems and, again, appears to have been influenced in particular by common law systems.28 As a form of fault, knowledge arises where

25

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or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”); Recodifying Criminal Law (Canada), Chapter 2, cl. 2(4)(b) (“‘Purposely’. (i) A person acts purposely as to the conduct if he means to engage in such conduct, and, in the case of an omission, if he also knows the circumstances giving rise to the duty to act or is reckless as to their existence. (ii) A person acts purposely as to a consequence if he acts in order to effect: (A) that consequence; or (B) another consequence which he knows involves that consequence.”). See, e.g., Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, para. 351 (Jan. 29, 2007) (“This volitional element encompasses, first and foremost, those situations in which the suspect (i) knows that his or her actions or omissions will bring about the objective elements of the crime, and (ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree).”). See, e.g., Cassese et al., op. cit. 44–​45; Werle and Jessberger (2014), op. cit. 189. See Rome Statute (1998), Article 6 (Genocide) (“intent to destroy”). Accord. Rutaganda, ictr-​96-​3 -​ a, Judgement, para. 525 (May 26, 2003) (discussing dolus specialis of crime of genocide). See also Elements of Crimes, Article 7(1)(h) (Crime against humanity of persecution) (describing discriminatory intent); Article 7(1)(g)-​4 (Crime against humanity of forced pregnancy) (describing “the intent of affecting the ethnic composition of any population”); see similarly Article 8(2)(b)(xxii)-​4 (War crime of forced pregnancy). Rome Statute (1998), Article 30(3). See, e.g., U.S. Model Penal Code, Part i, Article 2, Section 2.02(2)(b) (“A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a

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an individual, without having the intent to bring about the objective elements of the crime, is nevertheless aware that such elements will be the result of his or her conduct, or aware of the nature of his or her conduct or that attendant circumstances exist.29 Knowledge therefore constitutes a lesser degree of volition than does intent. In this way, knowledge represents a degree of fault below intent. An individual acts recklessly, with respect to an objective element, where that individual is aware of the substantive risk that the objective element exists or will result from the individual’s conduct such that it is unjustifiable to take such risk. The concept of risk, sometimes referred to as dolus eventualis, is also familiar to domestic legal systems and its expression in international criminal law again appears to have been influenced by common law systems.30

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result.”); A Criminal Code for England and Wales, Part i, cl. 18(a) (“a person acts … ‘knowingly’ with respect to a circumstance not only when he is aware that it exists or will exist, but also when he avoids taking steps that might confirm his belief that it exists or will exist[.]‌”) (but note also the close relation to the second clause of the definition of “intent” at cl. 18(b): “a person acts … ‘intentionally’ with respect to … (ii) a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events[.]” (emphasis added)); Criminal Code Act 1995 (Australia), Ch. 2, Part 2.2, Div. 5, Sec. 5.3 (“A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.”); Recodifying Criminal Law (Canada), Chapter 2, cl. 2(4)(a)(i) (“where the definition of a crime requires purpose, no one is liable unless as concerns its elements he acts … knowingly or recklessly as to the circumstances, if any, so specified[.]”). See, e.g., Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, para. 352 (Jan. 29, 2007) (referring to “situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree)”); Katanga and Chui, icc-​01/​04-​01/​07, Decision on the confirmation of charges, para. 530 (Sept. 30, 2008); Tadić, it-​94-​1-​a , Appeal Judgement, paras. 219–​220 (July 15, 1999). See, e.g., U.S. Model Penal Code, Part i, Article 2, Section 2.02(2)(c) (“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-​abiding person would observe in the actor’s situation.”); A Criminal Code for England and Wales, Part i, cl. 18(c) (“a person acts … ‘recklessly’ with respect to [] (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk[.]‌”); Criminal Code Act 1995 (Australia), Ch. 2, Part 2.2, Div. 5, Sec. 5.4 (“(1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or

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Although recklessness falls outside of the “knowledge and intent” framework at Article 30(2)-​(3) of the Rome Statute, it is permitted through the “unless otherwise provided” language in Article 30(1): “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.”31 The chapeau to Article 30(1) thereby contemplates instances in which the crime itself contains a substantive element that is neither intent nor knowledge.32 Recklessness as a form of fault has been incorporated in the caselaw of the icc through Article 30(1) of the Rome Statute, although questions remain as to whether such standard must be included in the crime itself.33 Recklessness also arises in the caselaw of the icty and ictr.34 Because recklessness does not contain a volitional aspect comparable she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”); Recodifying Criminal Law (Canada), Chapter 2, cl. 2(4)(b) (“‘Recklessly’. A person is reckless as to consequences or circumstances if, in acting as he does, he is conscious that such consequences will probably result or that such circumstance probably obtain.”). 31 Rome Statute (1998), Article 30(1). See, e.g., Werle and Jessberger (2014), op. cit. 182 (“Article 30(1)’s opening clause ‘unless otherwise provided’ provides a methodically flawless way to harmonize the Statute’s criminal law with customary international law.”). Cf. Gerhard Werle and Florian Jessberger, Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental Element of Crimes Under International Criminal Law, 3(1) jicj 35–​55 (2005). 32 See, e.g., Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, paras. 355–​356 (Jan. 29, 2007). Cf. Roger S. Clark, The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12(3) Criminal Law Forum 291, 321–​322 (2001). 33 See, e.g., Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, para. 352 (Jan. 29, 2007) (referring to “situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).”); id. para. 355 n. 438. See contra, Bemba, icc-​01/​05-​ 01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, paras. 357–​360 (June 15, 2009). Cf. Werle and Jessberger (2014), op. cit. 180–​183, 192 (discussing why Article 30 should admit a standard of recklessness). 34 Stakić, it-​97-​24-​t, Judgement, para. 587 (July 31, 2003) (“The technical definition of dolus eventualis is the following: if the actor engages in life-​endangering behaviour, his killing becomes intentional if he ‘reconciles himself’ or ‘makes peace’ with the likelihood of death.”); Blaškić, it-​95-​14-​t, Judgement, para. 254 (Mar. 3, 2000) (referring to “recklessness, (‘the outcome is foreseen by the perpetrator as only a probable or possible consequence’). In other words, knowledge also includes the conduct ‘of a person taking a deliberate risk in the hope that the risk does not cause injury’.” (internal citations omitted)); Kayishema

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to intent or knowledge, it represents a degree of fault below knowledge and, a fortiori, below intent. An individual acts negligently, with respect to an objective element, where that person should be aware of the substantive risk that the objective element exists or will result from the individual’s conduct such that it is unjustifiable to take such risk. Negligence calls for measuring the individual’s conduct against an objective standard of reasonable care, and the individual is only negligent and with cognizable fault if he or she grossly deviates from that standard of care. This degree of fault is also familiar to domestic law, particularly to common law systems.35 Negligence, particularly by contrast to intent and knowledge, represents an exceptional element of fault in the establishment of c­ riminal responsibility.36 For example, negligence falls outside of the “knowledge and intent” framework at Article 30(2)-​(3) of the Rome Statute, however it may also be captured through the “[u]‌nless otherwise provided” language in Article 30(1).37 In this way, negligence has been contemplated as the relevant subjective element only where the crime includes such a standard, for example,

35

36 37

and Rusindana, ictr-​95-​1 -​t, Judgement, para. 153 (May 21, 1999) (“it is incumbent on the Prosecution to prove the mens rea on the part of the accused,” which may arise “where the accused knew that his act was likely to cause serious mental suffering and was reckless as to whether such suffering would result.”). See, e.g., U.S. Model Penal Code, Part i, Article 2, Section 2.02(2)(d) (“A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”); Criminal Code Act 1995 (Australia), Ch. 2, Part 2.2, Div. 5, Sec. 5.5 (“A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence.”); Recodifying Criminal Law (Canada), Chapter 2, cl. 2(4)(b) (“‘Negligently’. A person is negligent as to conduct, circumstances or consequences if it is a marked departure from the ordinary standard of reasonable care to engage in such conduct, to take the risk (conscious or otherwise) that such consequences will result, or to take the risk (conscious or otherwise) that such circumstances obtain.”); see also id. cl. 2(4)(a)(iii); but see A Criminal Code for England and Wales, Part i, cl. 18(b) (which does not include negligence). See, e.g., Werle and Jessberger (2014), op. cit. 192; Cassese et al., op. cit. 52–​55. Rome Statute (1998), Article 30(1). See, e.g., Werle and Jessberger (2014), op. cit. 180–​183, 192; Werle and Jessberger (2005), op. cit. 51.

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with respect to due diligence in the context of child soldiers.38 An objective standard of reasonable care may also arise in the context of superior responsibility, which imposes criminal responsibly upon superiors for the conduct their subordinates under certain circumstances, including where the superior knew or “should have known” their subordinates were committing or about to commit crimes.39 Negligence represents the lowest of the four degrees of fault. b

An Element Approach to Crimes

Only when the material elements of the crime are combined with the requisite subjective elements will the individual be rendered criminally liable. Further, the principle of correspondence counsels that the subjective element of the 38

39

See Elements of Crimes, Articles 8(2)(b)(xxvi) and 8(2)(e)(vii). Accord. Lubanga, icc-​01/​ 04-​01/​06, Decision on the confirmation of charges, paras. 358–​359 (Jan. 29, 2007) (internal citations omitted) (“The ‘should have known’ requirement set forth in the Elements of Crimes—​which is to be distinguished from the ‘must have known’ or constructive knowledge requirement—​falls within the concept of negligence because it is met when the suspect: i. did not know that the victims were under the age of fifteen years at the time they were enlisted, conscripted or used to participate actively in hostilities; and ii. lacked such knowledge because he or she did not act with due diligence in the relevant circumstances (one can only say that the suspect ‘should have known’ if his or her lack of knowledge results from his or her failure to comply with his or her duty to act with due diligence). As a result, the ‘should have known’ requirement as provided for in the Elements of Crimes in relation to articles 8(2)(b)(xxvi) and 8(2)(e)(vii) is an exception to the ‘intent and knowledge’ requirement embodied in article 30 of the Statute.”). See also Elements of Crimes, Article 8(2)(b)(vii) (regarding improper use of flags, providing a “should have known” standard). See, e.g., Rome Statute (1998), Article 28(a)(i) (“That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes” (emphasis added)). See Bemba, icc-​ 01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, paras. 433–​434 (June 15, 2009). Compare with icty Statute (1993), Article 7(3) (“The fact that any of the acts … was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” (emphasis added)); ictr Statute (1994), Article 6(3) (same). See Krnojelac, it-​97-​25-​t, Judgement, para. 94 (Mar. 15, 2002). Cf. Jackson (2019), op. cit. 424–​425 (describing the mental element applicable to military superiors under the Rome Statute as departing from customary international law by admitting a negligence standard); Ambos (2013), op. cit. 224–​225. For discussion of negligence during Post-​w wii prosecutions, see Cassese et al., op. cit. 54–​55. See discussion infra, Chapter 6.a.iv (Superior Responsibility).

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crime should “correspond” to the objective element of the crime.40 However different subjective elements may correspond to different objective elements within the same crime.41 The relationship between subjective and objective elements of crime may be charted along opposing axes to illustrate these generalizations.42 The applicable elements of crime, from which individual responsibility may arise, will depend on the elements of the particular crime itself. The Objective Element Conduct

The Subjective Element

Purposely

Conscious object to engage in conduct of that nature Knowingly Aware that conduct is of that nature Recklessly

N/​A

Negligently N/​A

Circumstance

Consequence

N/​A

Conscious object to cause such consequence

Aware that it is practically certain conduct will cause such consequence Consciously Consciously disregards a disregards a substantial and substantial and unjustifiable risk unjustifiable risk that material that material element will result element exists from conduct Should be aware Should be aware of a substantial of a substantial and unjustifiable and unjustifiable risk that material risk that material element will result element exists from conduct Aware that such circumstance exists

40 Horder, op. cit. 176. 41 Paul Robinson and Jane Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35(4) Stanford Law Review 681, 699 (1983). 42 For a similar chart, see id. at 697.

­c hapter 4

Internationally Wrongful Acts a

Elements of State Responsibility

The law of State responsibility provides that there is an internationally wrongful act of a State when conduct, constituting an act or omission, is “attributable to the State under international law” and “constitutes a breach of an international obligation of the State.”1 State responsibility for an internationally wrongful act is therefore engaged where these elements of attribution and breach are satisfied. Practice does not suggest a rigid methodology of the order according to which these two elements are assessed.2 The elements of State responsibility—​breach and attribution—​appear at least superficially analogous to the elements of individual criminal responsibility—​actus reas and mens rea.3 This resemblance should not, however, be overstated. The ilc consciously rejected adopting such characterization in reference to the elements of State responsibility, the reasons for which are particularly salient in the context of dual responsibility.4 As discussed in Chapter 5, 1 ilc Articles on State Responsibility, Article 2. 2 Compare, e.g., Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 168, para. 215 (“The Court, having established that the conduct of the updf and of the officers and soldiers of the updf is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations.”) (hereinafter, “Armed Activities on the Territory of the Congo (2005)”), with Application of the Genocide Convention (2007), para. 395 (“The Court therefore finds that the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent’s international responsibility.”). 3 Cf. Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 71–​118, 119–​145 (Leiden: Martinus Nijhoff 2009) (discussing “overlap of the material element” and “overlap of the psychological element”); Vladimir-​Djuro Degan, Responsibility of States and Individuals for Genocide and other International Crimes, in Isabelle Buffard et al. [Eds.], International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner 527 (Leiden: Martinus Nijhoff 2008) (proposing that the rules of attribution for purposes of State responsibility “replace” the mental element of international crimes); Carlo de Stefano, Attribution in International Law and Arbitration 5–​6 (Oxford: oup 2020) (describing attribution as “the subjective element” in State responsibility). 4 See discussion infra, Chapter 5.a (Relationship Between Elements of Individual and State Responsibility).

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004505377_006

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while the function of the element of breach for purposes of State responsibility is superficially similar to the objective element of actus reas—​each requires an assessment of conduct in light of an applicable primary rule to determine whether such rule has been contravened—​analogizing the element of breach to the objective element of crime is at best incomplete.5 And, as discussed in Chapter 8, the element of attribution in the law of State responsibility, including in the context of primary rules associated with individual criminal responsibility, is objective in character by contrast to the subjective element of crime.6 The secondary rules governing attribution in international criminal law provide a closer functional analogue to the secondary rules of attribution in the law of State responsibility than does the subjective element of crime. However inviting the analogy between the objective and subjective elements of crime and the elements of State responsibility may seem, it remains in practice difficult to sustain. b

Two Categories of Primary Rules

State responsibility for an internationally wrongful act engages when conduct is attributable to the State and constitutes a breach of an international obligation of the State.7 The term “international obligation” is used in Article 36(2)(c) of the icj Statute, which defines the competence of the court.8 Accordingly, the ilc adopted this construction in the Articles on State Responsibility to define an internationally wrongful act.9 The Articles on State Responsibility, at Article 12, provide that there is a breach of an international obligation “when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”10 An internationally wrongful act is therefore a breach of an international obligation (i.e., a primary rule), which is attributable to the State, which thereby engages the responsibility of that State. As discussed above, duality of responsibility refers to situations in which State responsibility for internationally wrongful acts arises concurrently with

5 6 7 8 9 10

Cf. ilc Articles on State Responsibility, Article 2, Commentary, para. 3. See discussion infra, Chapter 8.a (Principles of Attribution: Culpability and Objectivity Distinguished). ilc Articles on State Responsibility, Article 2. icj Statute, Article 36(2)(c). ilc Articles on State Responsibility, Article 2, Commentary, para. 7. Id. Article 12.

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or complementary to individual criminal responsibility. This distinction refers not to different forms of State responsibility as such,11 but rather, to the international obligations of the State whose breach may give rise to the international responsibility of the State in relation to crimes under international law.12 This distinction in the way in which State responsibility may arise in relation to crimes under international law has been identified across various fora. For example, the icty observed this distinction in Furundžija in the context of torture as a crime under international law: 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.13 The disjunctive connector emphasized above separates two distinct aspects of State responsibility related to the underlying unlawful individual conduct—​ either by attribution of that conduct (i.e., breach of the same primary rule), or by failure to perform obligations to prevent and punish such conduct (i.e., breach of associated primary rules). The icj referred to this same distinction in its 2007 Application of the Genocide Convention judgment, with respect to the international crime of genocide and failure to perform associated obligations to prevent genocide and punish genocidaires: “these are two distinct internationally wrongful acts attributable to the State, and both can be asserted against it as bases for its international responsibility.”14 The icj may have been referring to this same distinction in its 2015 Application of the Genocide Convention judgment, in which it referred to two “scenarios” in which State responsibility 11

See Hazel Fox, The International Court of Justice’s Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to the State, in Nisuke Ando et al. [Eds.], I Liber Amicorum Judge Shigeru Oda 147, 148–​149, 163 (The Hague: Kluwer Law International 2002) (Contemplating a distinction between forms of “direct” and “indirect” State responsibility on the basis of which primary rules are implicated, but cautioning that, in the absence of criminal responsibility of the State, such labels “only add confusion.”). 12 As such, “complementarity” serves as more than a rhetorical description of what is referred to in this monograph as concurrent responsibility: see Joachim Wolf, Individual Responsibility and Collective State Responsibility for International Crimes: Separate or Complementary Concepts under International Law?, in Bartłomiej Krzan [Ed.], Prosecuting International Crimes: A Multidisciplinary Approach 4 (Leiden: Brill Nijhoff 2016); Bonafè, op. cit. 44–​45. 13 Furundžija, it-​9 5-​1 7/​1 -​t, Judgement, para. 142 (Dec. 10, 1998) (emphasis added). 14 Application of the Genocide Convention (2007), para. 383.

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may arise under the Genocide Convention in relation to genocide as a crime under international law.15 The ilc has also identified the ways State responsibility may arise in relation to individual responsibility for international crimes in several savings clauses. For example, Article 58 of the Articles on State Responsibility (“Individual Responsibility”), a savings clause which seeks to deconflict State and individual responsibility, provides that the “articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”16 In its commentary to this provision, the ilc described certain features of dual responsibility: Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so, the question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out. Nor may those officials hide behind the State in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them.17 Here, again, the conjunction emphasized above separates two distinct ways in which State responsibility may arise for breach of international obligations in relation to crimes under international law. In distinguishing between individual and State responsibility arising for crimes under international law, the ilc indicated that State responsibility may arise either concurrently with, or complementary to, individual criminal responsibility, and identified the separability of these areas of responsibility. The ilc also identified two other important 15 16 17

Application of the Genocide Convention (2015), para. 128 (quoting Application of the Genocide Convention (2007), paras. 180, 182). The icj’s reference to its 2007 Application of the Genocide Convention judgment supports this interpretation. ilc Articles on State Responsibility, Article 58. Id., Commentary, para. 3 n. 839 (citing Streletz, Kessler and Krenz v. Germany (application Nos. 34044/​96, 35532/​97 and 44801/​98), judgment of 22 March 2001, Eur. Court H.R., Reports, 2001–​i i (para. 104) (“If the gdr still existed, it would be responsible from the viewpoint of international law for the acts concerned. It remains to be established that alongside that State responsibility the applicants individually bore criminal responsibility at the material time.”)).

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points: that a State’s performance of its obligations arising in relation to international crimes to prevent and punish such conduct does not preclude attribution of such conduct for purposes of State responsibility, and that attribution of conduct amounting to international crimes to the State does not exclude individual responsibility for such conduct. These aspects of dual responsibility are addressed at greater length below.18 Before it had finalized its Articles on State Responsibility, the ilc articulated parameters of the relationship between individual and State responsibility for crimes under international law in its commentary to the Draft Code of Crimes against Peace and Security of Mankind. Article 4 of the Draft Code (“Responsibility of States”), another savings clause which seeks to deconflict individual and State responsibility, provides that “[t]‌he fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law.”19 In its commentary to this provision, the ilc referred to earlier commentary in its Draft Articles on State Responsibility to explain that “the punishment of individuals who are organs of the State 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.”20 The ilc again distinguished attribution of an international crime from obligations related to the punishment of such crime, and signaled that State responsibility arising from breach of such obligations associated with crimes under international law is distinct from State responsibility arising from attribution of a crime under international law.21 The foregoing discussion illustrates that State responsibility is contemplated in relation to individual responsibility for crimes under international law on the basis of breach of two distinct categories of primary rules. First, to the extent that State responsibility may ensue from attribution of conduct in 18 See discussion infra, Chapter 4.d.ii (Implications of Distinct Primary Rules). 19 Draft Code of Crimes (1996), Article 4. 20 Id., Commentary, para. 2 (internal quotation and citation omitted). 21 The ilc also contemplated that this duality might be common in the context of international crimes because such conduct is often performed by State organs. See id., Commentary, para. 1 (“Although, as made clear by article 2, the Code addresses matters relating to the responsibility of individuals for the crimes set out in part two, it is possible, indeed likely, as pointed out in the commentary to article 2, that an individual may commit a crime against the peace and security of mankind as an “agent of the State,” “on behalf of the State,” “in the name of the State” or even in a de facto relationship with the State, without being vested with any legal power.”).

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breach of a primary rule from which individual criminal responsibility arises, such State responsibility is concurrent with individual responsibility for that same conduct. Duality of responsibility in this sense refers to situations in which State responsibility arises from attribution of the breach of a primary rule prohibiting conduct for which the individual may incur criminal responsibility under international law. Second, to the extent that the State is subject to obligations arising in relation to primary rules from which individual criminal responsibility arises, obligations often defined in terms of positive duties to prevent and punish such individual conduct, State responsibility may also arise for breach of such obligations. Dual responsibility in this sense refers to State responsibility that is complementary to individual responsibility for the underlying conduct, arising from breach of obligations distinct from, but associated with, primary rules that may give rise to criminal responsibility under international law. The following sections examine these aspects of State responsibility as it may arise in relation to crimes under international law. c

Concurrent State Responsibility

Peremptory Norms and Their Correlates i The primary rules giving rise to concurrent State responsibility are recognized and accepted as peremptory norms of general international law (jus cogens).22 As discussed in Chapter 2, jus cogens consists of a category of norms accepted and recognized by the international community as a whole from which no derogation is permitted. In this regard, peremptory norms are unique in international law as primary rules, from which no derogation is permitted, and which are in turn applicable to both individuals and States as subjects of international law.23 The primary rules belonging to this category have been articulated by the icj, as well as a host of other international and domestic courts and tribunals, and have also been identified in the work of the ilc.24 The prohibitions established by these rules, under customary international law and reflected in various international agreements, are binding upon States.25 Peremptory norms are closely related to international criminal law and international crimes correspond to violations of norms belonging to jus cogens.26 22 23 24 25 26

See discussion supra, Chapter 2.a (Primary Rules). Id. See discussion supra, Chapter 2.a.i (Individual-​Directed Rules). See discussion supra, Chapter 2.a.ii (State-​Directed Rules). See discussion supra, Chapter 2.a.i (Individual-​Directed Rules). See supra, Chapter 2, n. 13.

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International criminal responsibility may be seen to arise as the sanction for individual conduct in breach of such a primary rule. This close relationship between jus cogens and international crimes accounts for primary rules the breach of which may result in both individual criminal responsibility and State responsibility under international law (i.e., a crime under international law and an internationally wrongful act).27 Implicit in the application of a category of primary rules to both the individual and the State is “double attribution” of conduct in breach of such rules,28 which enables individual and State responsibility to exist concurrently for the same conduct.29 The possibility of such concurrent responsibility is illustrated, for example, by savings clauses in the Rome Statute and the ilc Articles on State Responsibility. The Rome Statute states, at Article 25(4), that “[n]‌o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”30 The corollary, at Article 58 of the Articles on State Responsibility, provides that “[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.”31 The concurrent responsibility of the individual and the State is predicated upon the applicability of primary rules, and attribution of breaches of those rules, to each subject of international law.32 27

28

29 30 31 32

A practical point that warrants further discussion is the positive source of such a primary rule. See discussion infra, Chapter 5.b (Sources of Law). As noted in Chapter 2, the assessment of duality of responsibility in this monograph is concerned with primary rules under international law, which belong to jus cogens, the violation of which are defined as crimes under international law. Arguably, these two categories are coextensive. However, to the extent these categories may not fully overlap, the assessment in this monograph addresses primary rules for which there is such overlap, that is, where the primary rule is a peremptory norm and conduct in violation of such rule is defined as a crime under international law. This monograph assumes, at minimum, that primary rules the breach of which are defined as crimes under international law also belong to jus cogens. See discussion supra, Chapter 2, n. 79. Elies van Sliedregt, Individual Criminal Responsibility in International Law 5–​7 (Oxford: oup 2012). Accord. André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52(3) iclq 615, 619 (2003) (referring to “parallel attribution” and conduct “attributed twice”). See similarly Katja Creutz, State Responsibility in the International Legal Order: A Critical Appraisal 35 (Cambridge: cup 2020); Fox (2002), op. cit. 156–​163. For a different view, see contra Wolf, op. cit. 35, 43 (questioning whether international crimes may be attributed to the State). See discussion infra, Chapter 8.b (Double Attribution). Rome Statute (1998), Article 25(4). See similarly Draft Code of Crimes (1996), Article 4. ilc Articles on State Responsibility, Article 58. See discussion infra, Chapter 8.b (Double Attribution).

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A practical aspect of such double attribution, discussed in Chapter 8,33 is that the breach of a primary rule giving rise to individual criminal responsibility is sufficient, if attributable to the State, to also constitute an internationally wrongful act engaging State responsibility.34 For example, in its 2007 Application of the Genocide Convention judgment, the icj concluded that States parties to the Genocide Convention “are bound not to commit genocide, through the actions of their organs or persons or groups whose acts are attributable to them,”35 and in view of this obligation assessed whether conduct established by the icty to engage individual criminal responsibility for genocide was attributable also to Serbia to engage its international responsibility.36 Similarly, in its 2012 Jurisdictional Immunities of the State decision, the icj assumed that various categories of individual conduct amounting to crimes under international law (crimes against humanity and war crimes) were attributable to Germany so as to engage its international responsibility.37 Similarly, in its 2015 Application of the Genocide Convention decision, the icj considered that breach of a State’s obligation not to commit genocide “may consist of acts, attributable to the State, committed by a person or a group of persons whose individual criminal responsibility has already been established.”38 In these examples, an international crime was presumed to be sufficient to engage State responsibility by satisfying the element of breach of an international obligation of the State arising under the relevant primary rule. Although the underlying elements of crime must be satisfied to establish conduct in breach of a primary rule that may be attributed to the State, those 33 34 35 36 37

38

Id. Where the competence of international criminal courts and tribunals is limited to natural persons, a court adjudging individual criminal responsibility will lack the competence to adjudge concurrent State responsibility. See supra, Chapter 2, n. 85. Application of the Genocide Convention (2007), para. 167. Accord. Application of the Genocide Convention (2015), paras. 128–​129. Application of the Genocide Convention (2007), esp. paras. 374–​376, 413–​415. Jurisdictional Immunities of the State (2012), paras. 52–​53, 81, 108 (though State responsibility for international crimes was not at issue in that case: “The question whether Germany still has a responsibility towards Italy, or individual Italians, in respect of war crimes and crimes against humanity committed by it during the Second World War does not affect Germany’s entitlement to Immunity. Similarly, the Court’s ruling on the issue of immunity can have no effect on whatever responsibility Germany may have.”). Note that Germany also assumed international responsibility for the underlying criminal conduct: see Jurisdictional Immunities of the State (Germany v. Italy), Application Instituting Proceedings, at 4 (Dec. 23, 2008) (“All of these claims should be dismissed since Italy lacks jurisdiction in respect of acts jure imperii performed by the authorities of the Third Reich for which present‑day Germany has to assume international responsibility.”). Application of the Genocide Convention (2015), para. 128.

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elements are functionally distinct from the objective fact of breach of the primary rule that those elements establish.39 While international criminal conduct is sufficient to satisfy the element of breach of an international obligation of the State, a prior conviction of an individual for such criminal conduct by a competent court or tribunal is not necessary to establish the element of breach of a State’s international obligation that would give rise to individual criminal responsibility.40 Under such circumstances, in the absence of a prior judicial determination of individual criminal responsibility, State responsibility would still depend upon the attribution of conduct amounting to a crime under international law, even if such State responsibility would not technically run concurrently with individual criminal responsibility. The icj suggested this possibility in its 2007 Application of the Genocide Convention judgment, and again in its 2015 Application of the Genocide Convention judgment, finding that State responsibility can arise for genocide under the Genocide Convention “‘without an individual being convicted of the crime or an associated one’.”41 Even so, it would still, however, be necessary to establish the elements of the underlying crime (i.e., the objective and subjective elements, as well as any dolus specialis) to establish breach of the relevant international obligation of the State.42 In the absence of breach of a primary rule by an individual, there can be no question of State responsibility for such conduct.43 39 40

41

42

43

See discussion infra, Chapter 5.a (Relationship Between Elements of Individual and State Responsibility). See, e.g., ilc Articles on State Responsibility, Article 58, Commentary, para. 3 n. 839 (citing Streletz, Kessler and Krenz v. Germany (application Nos. 34044/​96, 35532/​97 and 44801/​ 98), judgment of 22 March 2001, Eur. Court H.R., Reports, 2001–​i i (para. 104) (“If the gdr still existed, it would be responsible from the viewpoint of international law for the acts concerned. It remains to be established that alongside that State responsibility the applicants individually bore criminal responsibility at the material time.”)). Cf. Nollkaemper (2003), op. cit. 628. Application of the Genocide Convention (2015), para. 128 (quoting Application of the Genocide Convention (2007), para. 182); see also id. para. 461. Note that this observation by the icj may also be interpreted as referring to State responsibility that is complementary to individual responsibility: see discussion supra, n. 15. See, e.g., Application of the Genocide Convention (2015), paras. 201–​202 (“The Court will seek first to determine whether the alleged acts have been established … and then, should that be established, whether those physical acts were committed with intent to destroy the protected group, in whole or in part. Only if the Court finds that there has been genocide … will it consider … whether any acts … can entail the responsibility of Serbia.”). See, e.g., id. para. 441 (“It follows from the foregoing that Croatia has failed to substantiate its allegation that genocide was committed. Accordingly, no issue of responsibility under the Convention for the commission of genocide can arise in the present case.”).

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It is practically unlikely for the breach of an obligation by the State to serve as the basis for a subsequent determination of individual criminal responsibility.44 In the context of the crime of aggression, however, a determination of State responsibility might logically precede a finding of individual criminal responsibility, because the crime itself includes as a material element an act of aggression by the State.45 Even so, identifying a State act of aggression does not presuppose a prior determination of State responsibility for such an act.46 In this respect, aggression presents other aspects that are unique compared to other primary rules that may give rise to dual responsibility. Notably, an “act of aggression” by the State under international law is defined separately from the “crime of aggression” under international criminal law.47 The crime 44

45

46

47

See discussion infra, Chapter 8.b (Double Attribution). Cf. van Sliedregt, op. cit. 7. One complicating factor in this regard is that a criminal conviction must satisfy a standard of proof that may be higher than that required for a determination of State responsibility in relation to the same underlying conduct. See discussion infra, Chapter 5.c (Standard of Proof). Rome Statue (1998), Article 8bis. Cf. Kai Ambos, The Crime of Aggression after Kampala, 53 German Yearbook of International Law 463, 482 (2010) (“[T]‌he crime of aggression has a dual nature encompassing the collective State act of aggression at the macro level and the individual crime of aggression at the micro level.”); Harold Hongju Koh and Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109(2) ajil 257, 262 (2015) (“Unlike a prosecution for those other [atrocity] crimes, a prosecution of an individual for the crime of aggression must necessarily turn on a prior determination that a state act of aggression has been committed.”). See Koh and Buchwald, op. cit. 263 (describing determination of a State act of aggression as a “political assessment” as much as it is a legal one). See contra Dapo Akande and Antonios Tzanakopoulos, The Crime of Aggression in the ICC and State Responsibility, 58 Harvard International Law Journal, Online Journal 33–​36 (2017) (suggesting that State responsibility is itself an element of the crime of aggression). However, this latter point seems to go too far as a technical matter. Even if a determination of a State act of aggression could implicate State responsibility, such determination would not necessarily constitute a legal determination of State responsibility. The interrelation between a State act of aggression and the individual crime of aggression raises complications. See Koh and Buchwald, op. cit. 269–​271. Rome Statute (1998), Article 8bis, para. 1. With respect to the crime of aggression, including its antecedent “crime against peace,” see imt Charter (1945), Article 6(a); Tokyo Charter (1946), Article 5(a); Nürnberg Principles (1950), Principle vi(a). With respect to State acts of aggression, see unga Resolution 3314 (xxix), Definition of Aggression, U.N. Doc. A/​Res/​3314(xxix) (Dec. 14, 1974); Rome Statute, Article 8bis, para. 2. See Draft Code of Crimes Against the Peace and Security of Mankind, Article 20, Commentary, para. 6, Report of the International Law Commission on the Work of its Forty-​Sixth Session, U.N. Doc. A/​49/​10, [1994] ii(2) YbILC 1 et seq., at 38, U.N. Doc. a/​c n.4/​s er.a/​1994.Add.1 (Part 2) (“General Assembly resolution 3314 (xxix) deals with aggression by States, not with the crimes of individuals, and is designed as a guide for the Security Council, not as a definition for judicial use.”). Accord., e.g., Andreas Paulus, Second Thoughts on the Crime

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of aggression, as incorporated by the Rome Statute, is typically referred to as a “leadership crime” and refers in particular to the role of military or political leaders in control over acts of aggression.48 In effect, “this distinction limits the cases in which acts of aggression are publishable” under international criminal law, such that only a subset of acts of aggression may also give rise to the crime of aggression.49 Conversely, then, the potential scope of State responsibility arising from an act of aggression appears not to be circumscribed by the crime of aggression of individuals attributable to it. This distinction is unique in the context of dual responsibility, where State responsibility arising under the relevant primary rule would generally be defined by individual criminal conduct attributable to it. ii Acta Jure Imperii International law recognizes a distinction between two categories of acts of the State—​acta jure imperii and acta jure gestionis. Acta jure imperii are acts of the State performed in exercise of its sovereign capacity, while acta jure gestionis are non-​sovereign acts performed in a capacity more characteristic of private conduct (e.g., commercial activity).50 As categories of acts of the State, both assume the attribution of underlying conduct to the State. The icj has explained the significance of the distinction in the following terms: The Court considers that the terms “jure imperii” and “jure gestionis” do not imply that the acts in question are lawful but refer rather to whether of Aggression, 20(4) ejil 1117, 1120 (2009) (“the ga Definition of Aggression … seems thus to distinguish between ‘acts of aggression’ and the ‘crime of aggression’.”). Cf. Sean D. Murphy, The Crime of Aggression at the International Criminal Court, in Marc Weller [Ed.], Oxford Handbook on the Use of Force 552–​555 (Oxford: oup 2015) (discussing distinctions, and interactions, between the individual “crime” of aggression and a State “act” of aggression). See also Mary Ellen O’Connell and Mirakmal Niyazmatov, What is Aggression? Comparing the Jus ad Bellum and the ICC Statute, 10(1) jicj 189, 190 (2012) (“Despite this close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, in June 2010 states parties to the Rome Statute of the International Criminal Court [] bifurcated the two prohibitions.”). 48 Cf. Ambos, op. cit. 489–​493. This has historically been the case, for example, with respect to crimes against peace: see imt Charter (1945), Article 6(a); Tokyo Charter (1946), Article 5(a); Nürnberg Principles (1950), Principle vi(a). 49 Paulus, op. cit. 1120–​1 121; Ambos, op. cit. 482 (“From this follows that the existence of an (unlawful) act of aggression, as defined by Article 8bis (2) on the basis of ga Resolution 3314 does not automatically entail the individual criminal responsibility of the persons involved in this act.”). 50 Jurisdictional Immunities of the State (2012), para. 60.

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the acts in question fall to be assessed by reference to the law governing the exercise of sovereign power ( jus imperii) or the law concerning non-​ sovereign activities of a State, especially private and commercial activities ( jus gestionis).51 This distinction is particularly relevant to the immunity that the State may claim from the exercise of jurisdiction by foreign domestic courts over acts of the State. Specifically, acta jure imperii are generally entitled to immunity from the jurisdiction of foreign domestic courts, while acta jure gestionis are generally not entitled to such immunity.52 The icj reasoned in its 2012 Jurisdictional Immunities of the State judgment that, where international criminal conduct attributable to the State is at issue, the characterization of such conduct as acta jure imperii is separate from, and unaltered by, the illegality of such conduct.53 This classification is relevant to the jurisdictional immunity of the State in relation to international crimes,54 as well as how individual conduct constituting crimes under international law is regarded as a more general matter.55 iii Crimes of States Although crimes under international law may be attributed to the State, and regarded as acts of the State for purposes of State responsibility, State responsibility for an internationally wrongful act arising from such conduct is not criminal in nature.56 State responsibility for internationally wrongful acts is

51 52 53 54 55 56

Id. Cf. de Stefano, op. cit. 20–​23; Hazel Fox and Philippa Webb, The Law of State Immunity 395–​398 (Oxford: 3d ed. oup 2013). Jurisdictional Immunities of the State (2012), para. 60. See discussion infra, Chapter 12.b (State Immunity under International Law). See discussion infra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). For an early description of the absence of State criminal responsibility under international law from the standpoint of sovereignty, see Lassa Oppenheim, I International Law §§ 151, 156 (London: Longmans, Green and Co. 3d ed. 1920) (“An international delinquency is not a crime, because the delinquent State, as a sovereign, cannot be punished in the same way as a delinquent individual. … The nature of the Law of Nations, as a law between, not above, sovereign states excludes the possibility of punishing a State for an international delinquency and of considering the latter in the light of a crime, though it may be thought to be an atrocious crime, if morally considered.” (emphasis added) (internal citation omitted)). Accord., e.g., Amos J. Peaslee, The Sanction of International Law, 10(2) ajil 328, 333 (1916) (“[I]‌nternational law has refrained from characterizing such conduct, however reprehensible, as an ‘international crime’.”).

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horizontal in character, without distinction or gradation, as expressed by the ilc in its commentary to the Articles on State Responsibility: As far as the origin of the obligation breached is concerned, there is a single general regime of State responsibility. Nor does any distinction exist between the “civil” and “criminal” responsibility as is the case in internal legal systems.57 Under international law, the State is subject only to “international responsibility.”58 International law does not reflect practice in support of State criminal responsibility or criminal sanctions for the State.59 Throughout the drafting of the Articles on State Responsibility, however, the ilc contemplated that State responsibility for internationally wrongful acts arising from breaches of peremptory norms might be criminal in nature.60 Draft Article 19, adopted by the ilc in its first reading of the Draft Articles on State Responsibility in 1997, envisaged the possibility that certain acts of the State may constitute international crimes of the State.61 Throughout the drafting of this provision, the classification of an act of the State as criminal was contrasted with the concept of a “delict” (defined as any internationally wrongful act not constituting an international crime), and this differentiation 57 58 59

60 61

ilc Articles on State Responsibility, Article 12, Commentary, para. 5. Id., Article 1 (“Every internationally wrongful act of a State entails the international responsibility of that State.”). See, e.g., ilc Articles on State Responsibility, Article 12, Commentary, para. 5; id., Part Two, Chapter iii, Commentary, para. 7; Application of the Genocide Convention (2007), para. 167 (referring to the international responsibility of a State as “quite different in nature from criminal responsibility”); Blaškić (1997), para. 25 (“Under 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.”). For a discussion of other issues presented by the concept of State crimes, including the lack of appropriate procedures and potential for abuse, cf. James Crawford, Revising the Draft Articles on State Responsibility, 10(2) ejil 435, 442–​443 (1999). See also Ian Brownlie, 1 System of the Law of Nations: State Responsibility 23 (Oxford: oup 1983) (describing State responsibility as a “form of civil liability”). Cf. Alain Pellet, Can a State Commit a Crime? Definitely, Yes!, 10(2) ejil 425–​434 (1999). Report of the Commission to the General Assembly on the Work of its Forty-​Eighth Session, [1996] ii(2) YbILC 58 et seq., at 60, U.N. Doc. A/​51/​10, a/​c n.4/​s er.a/​1996/​Add.1 (Part 2) (text of the draft articles provisionally adopted by the Commission on the first reading) (Article 19(2)) (“An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.”).

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between “delinquency” and “crime” was viewed to be a product of the gravity of an internationally wrongful act.62 This distinction was predicated on the “normative differentiation” between two categories of rules in international law, jus dispositivum and jus cogens, and as such was viewed to be a function of the status of the obligation breached.63 Draft Article 19 was ultimately omitted from the final version of the Articles on States Responsibility on the basis that, in practice, there has been “no development of penal consequences for States of breaches of these fundamental norms.”64 For example, neither Germany nor Japan were regarded as criminal under the instruments that respectively established the Nuremberg and Tokyo tribunals, despite the criminal prosecution of State organs for conduct performed in their official capacities.65 Nor have States been regarded as criminal in the subsequent development of international criminal law.66 The concept of State crimes also raises conceptual difficulties when considering that State responsibility entails a kind of “collective” 62 63

64

65 66

Fifth Report on State Responsibility (Robert Ago, Special Rapporteur), para. 153, U.N. Doc. a/​c n.4/​291 Add.1 & 2 and Corr.1, [1976] ii(1) YbILC 3 et seq., at 54, U.N. Doc. a/​c n.4/​ ser.a/​1976/​Add.1 (Part 1). Id. at 53, para. 151 (“The recognition in our draft that a distinction should be made between some internationally wrongful acts which are more serious and others which are less serious is comparable in importance to the recognition, in the Convention on the Law of Treaties, of the distinction to be made between “peremptory” norms of international law and those norms from which derogation through particular agreements is possible. … By analogy, therefore, it might be useful to specify in the present draft that—​apart from the indisputable case of the obligation to refrain from resorting to force in international relations—​the breach of an international obligation relating to a given domain cannot be considered an international crime unless the norm out of which the obligation in question arises is a norm of general international law accepted and recognized as essential by the international community of States as a whole, that is to say, by all those which are today fundamental components of that community.”). See also id. at 32, para. 99. Cf. Pellet, op. cit. 428–​430. ilc Articles on State Responsibility, Part Two, Chapter iii, Commentary, paras. 5–​7. Cf. Report of the International Law Commission on the Work of its Fifty-​Second Session, paras. 346–​354, U.N. Doc. A/​55/​10, [2000] ii(2) YbILC 57–​58, U.N. Doc. a/​c n.4/​s er.a/​ 2000/​Add.1 (Part 2)/​Rev.1. But see Degan, op. cit. 513 (describing omission of State crimes as a “radical change” and “a concession to representatives of a number of States” in the unga Sixth Committee). ilc Articles on State Responsibility, Part Two, Chapter iii, Commentary, para. 6. For example, the instruments establishing subsequent international criminal courts and tribunals—​e.g., the icty, ictr, icc, and mict—​as well as hybrid courts and tribunals—​e.g., the scsl, eccc, and stl—​provide for individual criminal responsibility but do not contemplate State criminal responsibility. Cf., e.g., Application of the Genocide Convention (2007), para. 403; Prlić et al., it-​04-​74-​a , Decision on Application by the Republic of Croatia for Leave to Appear as Amicus Curiae and to Submit Amicus Curiae Brief, para. 9 (July 18, 2016); Delalić et al., it-​96-​21-​t, Judgement, para. 230 (Nov. 16, 1998).

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responsibility that does not align with the principles or operation of criminal law.67 The unstratified character of State responsibility therefore persists even where the obligation breached arises from a peremptory norm and the conduct attributed to the State constitutes a crime under international law for purposes of individual responsibility.68 The icj acknowledged this distinction in its 2007 Application of the Genocide judgment, regarding attribution of acts of genocide and other acts prohibited by the Genocide Convention, observing that “the international responsibility of a State—​even though quite different in nature from criminal responsibility—​can be engaged.”69 Almost a decade earlier, the Appeals Chamber of the icty in Blaškić had articulated this same distinction, observing 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.”70 Notwithstanding concurrent responsibility of the individual and the State for crimes under international law, each form of responsibility remains distinct in character: the individual is subject to individual criminal responsibility while the State is subject to international responsibility.71 iv Aggravated State Responsibility The concept of “aggravated” State responsibility appears to correspond to the exclusion of the concept of international crimes of States by the ilc in its

67

68

69 70 71

Cf. Nina H. B. Jørgensen, The Responsibility of States for International Crimes 168–​205 (Oxford: oup 2000); Andrea Gattini, A historical perspective: from collective to individual responsibility and back, in André Nollkaemper and Harmen van der Wilt [Eds.], System Criminality in International Law 102–​104 (Cambridge: cup 2009). For a different perspective, see André Nollkaemper, Systemic Effects of International Responsibility for International Crimes, 8(1) Santa Clara Journal of International Law 313, 316–​326 (2010). See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). ilc Articles on State Responsibility, Part Two, Chapter iii, Commentary, para. 7 (“Accordingly, the present articles do not recognize the existence of any distinction between State ‘crimes’ and ‘delicts’.”). See, e.g., Nollkaemper (2003), op. cit. 625 (“Concurrence between individual criminal responsibility and state responsibility thus does not necessarily (and certainly not as a matter of positive law) involve criminal state responsibility.”); Nollkaemper (2010), op. cit. 314. Application of the Genocide Convention (2007), para. 167. Blaškić (1997), para. 25. This divergence is a result of the operation of different secondary rules of responsibility: see discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences).

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Articles on State Responsibility.72 As discussed immediately above, the Articles on State Responsibility do not contemplate stratification in forms of State responsibility on the basis of the primary rule breached; however, the Articles do contemplate that the breach of obligations arising from peremptory norms gives rise to certain consequences for States other than the responsible State.73 The proposition that certain consequences flow from a “serious breach” of such obligations originated with the concept of State crimes included in earlier versions of the Draft Articles on State Responsibility, and the consequences associated with such crimes.74 Because the breach of primary rules related to international crimes gives rise to consequences that are unique to the status of those rules, State responsibility arising from such a breach has been characterized as “aggravated” State responsibility, in contrast to State responsibility arising from other breaches of obligations under international law.75 Accordingly, proponents of a theory of aggravated State responsibility look for support to Articles 40 and 41 of the Articles on State Responsibility, which set out consequences for serious breaches of obligations under peremptory norms of general international law.76 Article 40 provides a criterion of “­seriousness” which, if satisfied by a breach of an obligation associated with ap ­ eremptory norm, gives rise to certain consequences for third-​States at

72 73 74 75

76

Cf. Report of the International Law Commission on the Work of its Fifty-​Second Session, para. 354, U.N. Doc. A/​55/​10, [2000] ii(2) YbILC 58, U.N. Doc. a/​c n.4/​s er.a/​2000/​Add.1 (Part 2)/​Rev.1. ilc Articles on State Responsibility, Article 41. See discussion infra, Chapter 9.b.ii (Consequences Beyond the Responsible State). Report of the International Law Commission on the Work of its Fifty-​Second Session, para. 354, U.N. Doc. A/​55/​10, [2000] ii(2) YbILC 58, U.N. Doc. a/​c n.4/​s er.a/​2000/​Add.1 (Part 2)/​Rev.1. This concept appears to have been influenced by Antonio Cassese: see, e.g., Antonio Cassese, International Law 262–​275 (Oxford: 2d ed. oup 2005); Antonio Cassese et al. [Eds.], Cassese’s International Criminal Law 7 (Oxford: 3d ed. oup 2013). See also Pellet, op. cit. 434 (“However, this terminological problem is not terribly important … call it ‘butterfly’ or ‘abomination’, the fact remains: we need a concept … and a name for this concept!”). Accord. Case of Myrna Mack Chang v. Guatemala, IACtHR, Judgment of November 25, 2003, (Ser. C) No. 101 (Merits, Reparations, and Costs), Sep. Op. Cançado-​ Trindade, paras. 28, 41 (“Crimes of State take shape, in brief, as especially grave violations of international law entailing an aggravated responsibility (with aggravating circumstances, thus evoking a category of criminal law). … Aggravated responsibility is, precisely, that which is consistent with a crime of State. The renowned Article 19 of the [ilc] State Responsibility Project (1976) … in its provision regarding “international crimes,” precisely had in mind the determination of an aggravated degree of responsibility for certain violations of international law.”) (hereinafter, “Myrna Mack Chang v. Guatemala (2003)”). ilc Articles on State Responsibility, Part Two, Chapter iii.

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Article 41.77 Where this criterion of seriousness is satisfied, it is proposed that the State responsibility associated with that breach is aggravated responsibility.78 Neither the ilc Articles on State Responsibility nor customary international law at present suggest that State responsibility for an internationally wrongful act arising from breach of a primary rule associated with an international crime is different in character from State responsibility for other internationally wrongful acts. The function of the seriousness criterion as contemplated by the ilc Articles on State Responsibility is to ascertain whether breaches of obligations erga omnes give rise to consequences for States other than the responsible State. The provisions of the Articles on State Responsibility related to the seriousness criterion do not, by their terms, refer to the responsibility of the State for such breach.79 As such, the seriousness criterion in the Articles on State Responsibility does not address whether the responsibility of the State for breach of an obligation that gives rise to consequences for third-​States is “aggravated.”80 The operation of secondary rules of State responsibility with respect to crimes under international law and associated primary rules is not contingent upon a criterion of seriousness and does not contemplate stratification between “ordinary” and “aggravated” forms of State responsibility. Further, it is unclear under present international law that a “serious breach” of such primary rules gives rise to additional consequences for the responsible State.81 Even so, to the extent that such nomenclature is intended as shorthand for responsibility arising from breaches that may attract consequences that are unique to certain primary rules, the term appears to be consistent with the operation of secondary rules of State responsibility.82 77 See discussion infra, Chapter 9.b.ii (Consequences Beyond the Responsible State). 78 Bonafè, op. cit. 75–​81; Gattini, op. cit. 123–​124; Santiago Villalpando, L’émergence de la communauté internationale dans la responsabilité des États 303–​304 (Geneva: Graduate Institute Publications 2005); Nollkaemper (2003), op. cit. 624. See similarly, Cassese et al., op. cit. 7. For a similar conceptualization, see Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 635–​637 (2007). 79 Cf. James Crawford, International Crimes of States, in James Crawford et al. [Eds.], The Law of International Responsibility 409–​410 (Oxford: oup 2010). 80 Moreover, from this perspective, it is unclear what the implications for “aggravated” responsibility might be, apart from the consequences for third-​States otherwise arising in relation to breaches of the obligations at issue. 81 Christian J. Tams, Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?, 13(5) ejil 1161, 1179–​1180 (2002). See discussion infra, Chapter 9.b.i (Consequences for the Responsible State). 82 For an observation that may be consistent with this view, see Furundžija, it-​95-​17/​1-​t, Judgement, para. 142 (Dec. 10, 1998) (“Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State

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Limited practice applying the concept of aggravated State responsibility does not, however, indicate such modest intentions. Since finalization of the ilc Articles on State Responsibility, the jurisprudence of the IACtHR has invoked the concept of aggravated State responsibility for breaches of certain provisions of the Inter-​American Convention on Human Rights that reflect, in the court’s view, peremptory norms. In a number of decisions, the court has identified factors that it found to “worsen,” “exacerbate” or “aggravate” the responsibility of the State to which certain breaches of the Inter-​ American Convention were attributed.83 These circumstances—​including a “pattern” or “systematic practice” of violations, as well as failure to investigate and prosecute such violations, and the identity of victims—​have led the court to conclude that State responsibility arising from such breaches is aggravated, a finding informing reparations ordered by the court.84 This practice by the Inter-​American Court appears to “criminalize” the court’s jurisprudence in a way that suggests the court’s “wish to rehabilitate the ‘international crime’

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officials engaging in torture or failing to prevent torture or to punish torturers. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility.”). The Trial Chamber’s latter observation refers to circumstances that may give rise to “a particularly grave wrongful act,” but the chamber does not suggest that State responsibility for such an act is qualitatively different from State responsibility that may ensue as a result of State officials engaging in torture (i.e., in the absence of an “extensive practice” resulting in a “breach on a widespread scale”). See discussion infra, Chapter 7.b.i (Secondary Rules of General Applicability). See Myrna Mack Chang v. Guatemala (2003), paras. 114, 139 (“[State responsibility] was worsened because at the time of the facts there was in Guatemala a pattern of selective extra-​legal executions fostered by the State. … Furthermore, since then and still today, there have not been effective judicial mechanisms to investigate the human rights violations nor to punish those responsible, all of which gives rise to an aggravated international responsibility of the respondent State.”); Case of Plan de Sánchez Massacre v. Guatemala, IACtHR, Judgment of April 29, 2004, (Ser. C) No. 105, para. 51 (Merits) (hereinafter, “Plan de Sánchez Massacre v. Guatemala (2004)”); Case of Gómez-​Paquiyauri Brothers v. Peru, IACtHR, Judgment of July 8, 2004, (Ser. C) No. 110, para. 76 (Merits, Reparations and Costs) (“[T]‌he responsibility of the State is exacerbated by the existence in Peru, at the time of the facts, of a systematic practice of human rights violations … carried out by agents of the State following orders of military and police commanders. Said violations violate international jus cogens. Likewise, the fact that the alleged victims in this case were children must be taken into account in establishing aggravated responsibility.”) (hereinafter, “Gómez-​Paquiyauri Brothers v. Peru (2004)”). See, e.g., Plan de Sánchez Massacre v. Guatemala (2004), para. 51 (“With respect to the issue of genocide … facts such as those stated … constitute an aggravated impact that entails international responsibility of the State, which this Court will take into account when it decides on reparations.”).

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theory” ultimately abandoned by the ilc.85 Judge Cançado-​Trinade, in separate opinions appended to the decisions cited above, was explicit in this regard, indicating in his view that “[a]‌ggravated responsibility is precisely the responsibility that corresponds to a State crime.”86 This practice by the Inter-​ American Court at least implies that the concept of aggravated State responsibility is related to the theory of international crimes of the State and its usage is probably best viewed in this light. d

Complementary State Responsibility

Obligations Erga Omnes i The primary rules giving rise to complementary State responsibility are obligations related to—​but distinct from—​the primary rules from which individual criminal responsibility arises. As discussed in Chapter 2, obligations erga omnes in customary international law, or obligations erga omnes partes in treaty law, may be identified to include certain obligations arising in relation to primary rules belonging to jus cogens.87 The erga omnes character of an obligation derives from the importance of the maintenance of the primary rule from which such obligation arises.88 The primary legal consequence of the erga omnes character of an obligation is a general legal interest in the performance of that obligation.89 The performance of obligations erga omnes in this context is frequently articulated to constitute positive duties to prevent and punish, or otherwise suppress, crimes under international law.90 Various articulations of what is 85

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Ludovic Hennebel, The Inter-​American Court of Human Rights: The Ambassador of Universalism, Revue Québécoise de Droit International, hors-​s érie septembre 2011, Protecting Human Rights in the Americas: the Inter-​A merican institutions at 60, 57, 65, 68 (2011). Plan de Sánchez Massacre v. Guatemala (2004), Sep. Op. Cançado-​Trindade, para. 34; Myrna Mack Chang v. Guatemala (2003), Sep. Op. Cançado-​Trindade, paras. 28, 41 (excerpted supra, n. 75); Gómez-​Paquiyauri Brothers v. Peru (2004), para. 76; id., Sep. Op. Cançado-​Trindade, paras. 37–​44. See also Myrna Mack Chang v. Guatemala (2003), Conc. Op. García-​Ramírez, para. 43. See discussion supra, Chapter 2.a.ii (State-​Directed Rules). See, e.g., Barcelona Traction (1970), paras. 33–​34. See, e.g., Questions relating to the Obligation to Prosecute or Extradite (2012), para. 68 (citing Barcelona Traction (1970), para. 33, and Reservations to the Genocide Convention (1951), 23). See discussion supra, Chapter 2.a.ii (State-​Directed Rules). Accordingly, this section refers generally to obligations erga omnes as consisting of obligations, as they may arise under customary international law or international agreements, in relation to the prevention and punishment of a crime under international law.

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referred to in this monograph as duality of responsibility contemplate one aspect of State responsibility arising in relation to individual criminal responsibility in terms of breach of such associated obligations. For example, in its Commentary to Article 58 of the Articles on State Responsibility, the ilc stated that, “[w]‌here crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them.”91 While State responsibility for “the acts in question” may arise concurrently with individual criminal responsibility, State responsibility for “failure to prevent or punish them” would arise from breach of associated obligations erga omnes. The icty Trial Chamber in Furundžija made the same observation in the context of the international crime of torture: “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.”92 Here, again, State responsibility is contemplated to arise for failure to prevent or punish a crime under international law as distinct from State responsibility arising from attribution of the underlying conduct itself. In practice, obligations to prevent and punish international crimes most commonly arise as obligations erga omnes partes in multilateral instruments defining crimes under international law.93 Obligations concerning prevention and punishment of crimes under international law are found variously in provisions of multilateral instruments that define primary rules and contemplate individual criminal responsibility for their violation.94 For example, the icj has identified such obligations erga omnes partes in the Convention Against Torture,95 and the Genocide Convention,96 respectively.97 91

ilc Articles on State Responsibility, Article 58, Commentary, para. 3 (emphasis added). See similarly cerd Inter-​State Communication (2019), para. 3.22. 92 Furundžija, it-​9 5-​1 7/​1 -​t, Judgement, para. 142 (Dec. 10, 1998) (emphasis added). 93 See discussion supra, Chapter 2.a.ii (State-​Directed Rules). 94 See, e.g., Geneva Convention i (1949), Article 49; Geneva Convention ii (1949), Article 50; Geneva Convention iii (1949), Article 129; Geneva Convention iv (1949), Article 146; Genocide Convention (1948), Articles iv-​v i; Rome Statute (1998), Part 9 (esp. Article 86); Torture Convention (1984), Articles 2, 4–​8; Convention on the High Seas (1962), Articles 14–​15, 19; unclos (1994), Articles 100–​101, 105; Slavery Convention (1927), Articles 2, 6; Supplemental Slavery Convention (1957), Articles 3, 5–​7; Apartheid Convention (1976), Articles iv-​v ; Hijacking Convention (1970), Articles 1–​2, 4; Montreal Convention (1971), Articles 1, 3, 5. The common legal structure of obligations erga omnes and obligations erga omnes partes is identified by the ilc: see Fourth Report on State Responsibility (Gaetano Arangio-​Ruiz, Special Rapporteur), at 34, para. 92. 95 Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69. 96 Application of the Genocide Convention (1996), para. 31; Application of the Genocide Convention (2015), para. 87; Application of the Genocide Convention (2020), para. 41. 97 See discussion supra, Chapter 2.a.ii (State-​Directed Rules).

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State responsibility for breach of obligations erga omnes related to the prevention and punishment of a crime under international law is complementary to individual criminal responsibility for such underlying conduct. State responsibility may arise for breach of such obligations through failure to prevent or punish the relevant crime under international law. Such State responsibility is an aspect of duality of responsibility in the sense that State responsibility is complementary to individual responsibility for the underlying conduct, arising from a breach of obligations related to, yet distinct from, primary rules whose breach entails individual criminal responsibility.98 Unlike State responsibility that is concurrent with individual responsibility, in which individual and State responsibility arise from breach of the same primary rule, State responsibility that is complementary to individual responsibility arises from breach of different primary rules.99 ii Implications of Distinct Primary Rules State responsibility for breach of obligations erga omnes related to crimes under international law arises from breach of primary rules distinct from State responsibility arising from attribution of international crimes.100 Accordingly, State responsibility that is complementary to individual criminal responsibility is not predicated upon the attribution of criminal conduct in the same way as State responsibility that is concurrent with individual criminal responsibility, in which the latter arises from breach of the same primary rule. One result of this distinction appears to be that breaches of obligations erga omnes do not give rise to the same considerations and issues as the attribution to the State of crimes under international law.101 For instance, breaches of obligations related to prevention and punishment of international crimes do not lend themselves to questions about the character of State responsibility or the appropriate standard of proof in the same way as State responsibility arising from attribution of a crime under international law. Even so, State responsibility that is complementary to individual criminal responsibility is referential to such underlying conduct in ways that distinguish such responsibility from State responsibility that is concurrent with individual criminal responsibility. 98

See, e.g., Fox (2002), op. cit. 148–​149 (contemplating State responsibility in this sense as “indirect” responsibility). “Complementarity” in this sense refers to State responsibility arising from breach of different primary rules rather than concurrence of responsibility for international crimes, though complementarity is frequently invoked in this latter sense. See Wolf, op. cit. 4; Bonafè, op. cit. 44–​45. 99 See discussion supra, Chapter 2.a (Primary Rules). 100 Id. 1 01 See discussion supra, Chapter 4.c (Concurrent State Responsibility).

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Practice and jurisprudence in this area, albeit limited, support a number of conclusions that arise as a function of this differentiation. 1 International Crime as a Prerequisite It appears that a State cannot breach an international obligation concerning prevention of a crime under international law in the absence of conduct amounting to an international crime. Put differently, breach of a primary rule giving rise to individual criminal responsibility is a prerequisite for breach of an associated primary rule to prevent such conduct. As described in the previous section, State responsibility may run concurrently with individual criminal responsibility for breach of the same primary rule.102 State responsibility for conduct amounting to an international crime can only arise concurrently with individual criminal responsibility where it is established that individual conduct has violated a primary rule that gives rise to individual criminal responsibility. It follows that State responsibility cannot arise in the absence of individual conduct in breach of a primary rule giving rise to individual criminal responsibility because there is no breach of an international obligation to attribute to the State in the first instance. In the absence of such conduct amounting to a crime under international law, generally, there can also be no breach of an obligation arising from the associated primary rule to prevent such conduct. This dependence of breach of associated obligations erga omnes concerning prevention of international crimes upon individual conduct amounting to an international crime was identified by the icj in its 2007 and 2015 Application of the Genocide Convention judgments. In its 2007 Application of the Genocide Convention judgment, the icj’s determination that Serbia had breached its obligation erga omnes under the Genocide Convention to prevent acts of genocide was contingent upon the finding that acts of genocide had occurred.103 The same approach is reflected in its 2015 Application of the Genocide Convention judgment, in which the icj treated breaches of obligations erga omnes in relation to the crime of genocide to be contingent upon the commission of genocide, such that the former could not arise absent the latter.104 Whether a State has breached an obligation to prevent an international 1 02 See discussion infra, Chapter 8.b (Double Attribution). 103 Application of the Genocide Convention (2007), para. 431. 104 Application of the Genocide Convention (2015), para. 441 (“Croatia has failed to substantiate its allegation that genocide was committed. Accordingly, no issue of responsibility under the Convention for the commission of genocide can arise in the present case. Nor can there be any question of responsibility for a failure to prevent genocide, a failure to punish genocide, or complicity in genocide.”).

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crime is a fact-​specific inquiry. For example, the icj articulated a variety of factors relevant to consideration of whether a State had failed to perform the erga omnes obligation to prevent genocide under the Genocide Convention.105 The icj characterized the obligation as “one of conduct and not one of result” and invoked the concept of “due diligence” as informing the performance of such obligation.106 Importantly, however, where an international crime is attributable to the State, the icj considered that such attribution “renders moot the question of whether [that State] satisfied its obligation of prevention in respect of the same conduct.”107 Conversely, whatever the content of the obligation to prevent genocide, the icj concluded that failure to establish acts of genocide precludes “any question of responsibility for a failure to prevent genocide.”108 This conditionality would seem to apply generally where an 105 Application of the Genocide Convention (2007), para. 430 (“[I]‌t is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of ‘due diligence’, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-​à-​vis the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result—​averting the commission of genocide—​which the efforts of only one State were insufficient to produce.”). 106 Id. For a broader discussion of the concept of due diligence as it arises in the context the performance of obligations erga omnes, see Thomas Weatherall, Jus Cogens 384–​391 (Cambridge: cup 2015). 107 Id. paras. 382–​383. 108 Application of the Genocide Convention (2015), para. 441. Accord. Application of the Genocide Convention (2007), para. 431 (“a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed.”).

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obligation of prevention is at issue, meaning that establishing the perpetration of a crime under international law necessarily precedes any question of a State’s failure to perform an obligation to prevent such crime. Also, as a matter of logic, conduct sufficient to engage individual criminal responsibility is generally a necessary condition for State responsibility complementary to such individual criminal responsibility, because the State’s breach of an obligation associated with the prevention of an international crime is dependent upon its failure to have prevented such conduct in performance of such an obligation in the first instance.109 Where a State is subject to an international obligation concerning punishment of a crime under international law, allegations of such a crime are sufficient to engage a State’s applicable obligations to investigate and extradite or prosecute.110 For example, on the basis of an extensive survey of multilateral instruments with extradition or prosecution provisions, the UN Secretariat derived generalizations about such provisions regarding States’ obligations in relation to alleged perpetrators of certain offences.111 Similarly, both the ilc Draft Code of Crimes Against the Peace and Security of Mankind,112as well 109 See Case of Cruz Sánchez et al. v. Perú, IACtHR, Judgment of April 17, 2015, (Ser. C) No. 292, para. 280 (Preliminary Objections, Merits, Reparations and Costs) (adopting a relatively low bar to establishing such underlying conduct in relation to associated obligations) (“La Corte recuerda que no es un tribunal penal en el que pueda determinarse la responsabilidad penal de los individuos y que ‘corresponde a los tribunales del Estado el examen de los hechos y las pruebas presentadas en las causas particulares’, por lo que la responsabilidad de los Estados bajo la Convención no debe ser confundida con la responsabilidad criminal de individuos particulares. Para establecer que se ha producido una violación de los derechos reconocidos en la Convención no se requiere determinar, como ocurre en el derecho penal interno, la culpabilidad de sus autores o su intencionalidad, ni es preciso identificar individualmente a los agentes a los cuales se atribuyen los hechos violatorios. Es suficiente que exista una obligación del Estado que haya sido incumplida por éste.” (internal citation omitted)) (hereinafter, “Cruz Sánchez et al. v. Perú (2015)”). 110 See, e.g., Kriangsak Kittichaisaree, The Obligation to Extradite Or Prosecute 3 (Oxford: oup 2018) (“The obligation to extradite or prosecute is the obligation assumed by a State having custody of an alleged offender to extradite that person to stand trial in another State or, failing that, to prosecute the person in the custodial State itself.”). 111 Survey of multilateral instruments which may be of relevance for the work of the International Law Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare),” paras. 150–​153, U.N. Doc. a/​c n.4/​630, [2010] ii(1) YbILC 316 et seq., at 358–​359, U.N. Doc. a/​c n.4/​s er.A/​2010/​Add.1 (Part 1) (Study by the Secretariat). Cf. Final report of the Working Group on the Obligation to extradite or prosecute (aut dedere aut judicare), part 3(b), U.N. Doc. a.cn.4/​l .844, [2014] ii(2) YbILC 91 et seq., at 96–​100, U.N. Doc. a/​c n.4/​s er.a/​2014/​Add.1 (Part 2) (Implementation of the obligation to extradite or prosecute). 112 Draft Code of Crimes (1996), Articles 9–​10.

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as the ilc Draft Articles on the Obligation to Extradite or Prosecute,113 frame the obligation to extradite or prosecute in relation to individuals alleged to have committed a crime under international law. The Questions Relating to the Obligation to Prosecute or Extradite judgment, which concerned allegations of torture and other abuses in Chad involving its former president, Hissène Habré, reflects this same conclusion: The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred.114 Accordingly, the court found that Senegal, where Habré had sought asylum, was “under an obligation to submit the allegations concerning those acts to its competent authorities for the purpose of prosecution.”115 By failing to investigate the alleged crimes and either extradite or prosecute Habré, Senegal was found to be in breach of its obligations erga omnes under the Torture Convention.116 With respect to obligations to punish crimes under international law, allegations of such conduct are sufficient to engage the associated primary rule and, in turn, the possibility for State responsibility to arise for its breach. As illustrated by the 2007 Application of the Genocide Convention and 2012 Questions Relating to the Obligation to Prosecute or Extradite judgments, whether a State has breached an obligation to punish an international crime is also a fact-​specific inquiry.117 However it does not appear that the breach of obligations associated with the punishment of crimes under international law is dependent upon establishing the fact of the underlying crimes themselves. Because State responsibility that is complementary to individual criminal responsibility arises from breach of primary rules distinct from State responsibility that is concurrent with individual criminal responsibility, breach of each category of primary rules may be triggered by different conduct. As a result,

113 Fourth Report on the Obligation to Extradite or Prosecute (aut dedere aut judicare) (Zdzislaw Galicki, Special Rapporteur), Articles 3–​4, U.N. Doc. a/​c n.4/​648, [2011] ii(1) YbILC 189 et seq., at 199–​203, U.N. Doc. a/​c n.4/​s er.a/​2011/​Add.1 (Part 1). 114 Questions relating to the Obligation to Prosecute or Extradite (2012), para. 68. 115 Id. para. 102. 116 Id. paras. 119–​121. 117 Application of the Genocide Convention (2007), paras. 439–​450; Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 71–​117.

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one form of State responsibility relative to international crimes does not presuppose the other. 2 Attribution of International Crime not a Prerequisite One clear illustration of this decoupling of concurrent and complementary State responsibility is that State responsibility may arise for breach of an obligation related to the prevention or punishment of a crime under international law even if conduct amounting to an international crime is not attributable to that State. This circumstance is reflected in the 2007 Application of the Genocide Convention judgment by the icj. The case concerned acts of genocide committed against the Muslim population of Bosnia in violation of the Genocide Convention.118 In its decision, the court found that acts of genocide, including conduct previously adjudged by the icty to constitute international crimes, were not attributable to Serbia so as to engage its responsibility for acts of genocide.119 Nevertheless, the court found, inter alia, that Serbia had breached its obligations erga omnes under the Genocide Convention by failing to prevent and punish acts of genocide.120 Another example of this principle is the icj’s Questions Relating to the Obligation to Prosecute or Extradite judgment, in which the court found Senegal to be responsible for breach of its obligations erga omnes under the Torture Convention by failing to investigate and extradite or prosecute Hissène Habré for acts of torture in Chad.121 In that case, although there were credible allegations against Habré for international crimes in Chad,122 which triggered Senegal’s obligations to investigate and prosecute Habré or extradite him for prosecution, there was no contention that Habré’s alleged criminal conduct could be attributed to Senegal. There was no possibility that the State found to be in breach of its obligations related to the punishment of a crime under international law could have been found concurrently responsible for the underlying criminal conduct at issue. The outcomes in the 2007 Application of the Genocide Convention and Questions Relating to the Obligation to Prosecute or Extradite judgments indicate that, by contrast to State responsibility that is concurrent with individual

118 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, i.c.j. Reports 1993, p. 3, paras. 1–​2. 119 Application of the Genocide Convention (2007), para. 471. 120 Id. 121 Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69, 88, 117. 122 Id. paras. 15–​20.

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criminal responsibility, which is based upon the attribution of the underlying breach of a primary rule to both the individual and the State,123 State responsibility for breach of an associated primary rule concerning prevention or punishment of such conduct is not dependent upon such double attribution. Put differently, State responsibility that is complementary to individual criminal responsibility is not contingent upon the attribution of an international crime to the State for purposes of State responsibility, unlike State responsibility that is concurrent with individual criminal responsibility, which is contingent upon attribution of a crime under international law. From this perspective, the scope of State responsibility that may arise for breach of obligations erga omnes related to crimes under international law can be viewed as potentially broader than the scope of State responsibility that may ensue from primary rules the breach of which give rise to individual criminal responsibility. This deviation is possible because obligations related to the prevention and punishment of crimes under international law apply to—​and may be breached by—​States other than the State to which underlying criminal conduct is attributable. 3

No Mitigation of Concurrent Responsibility for an International Crime A second illustration of this decoupling of concurrent and complementary State responsibility is the inverse of the first, where State responsibility does not arise for breach of an obligation related to the prevention or punishment of an international crime, even if conduct amounting to an international crime is attributable to that State. Framed differently, a State may not avoid responsibility for an international crime attributable to it by performance of its associated obligations related to punishing the individual responsible for it. The ilc contemplated this result in its commentary to Article 58 of the Articles on State Responsibility: Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. … The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out.124

123 See discussion supra, Chapter 4.c (Concurrent State Responsibility); Cf. discussion infra, Chapter 8.b (Double Attribution). 124 ilc Articles on State Responsibility, Article 58, Commentary, para. 3.

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Performance of obligations related to preventing and punishing a crime under international law does not, therefore, affect whether State responsibility may arise from attribution of such international crime.125 The ilc reached this same conclusion in its commentary to Article 4 of the Draft Code of Crimes against the Peace and Security of Mankind, in which it described this same distinction in bases of State responsibility: The “without prejudice” clause contained in article 4 indicates that the Code is without prejudice to any question of the responsibility of a State under international law for a crime committed by one of its agents. As the Commission already emphasized in the commentary to article 19 of the draft on State responsibility, the punishment of individuals who are organs of the State 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. 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.126 Here, again, the ilc distinguished attribution to the State of a crime under international law from obligations related to the punishment of such crime, and signaled that State responsibility arising from breach of such obligations associated with crimes under international law is separable from State responsibility arising from attribution of such crimes.127 Implicit in the State’s inability to avoid responsibility for an international crime by performing its obligations of prevention and punishment in relation

125 This section assumes arguendo that the attribution of a crime under international law to the State may not necessarily establish a breach of that State’s associated obligation to prevent such conduct. But see Application of the Genocide Convention (2007), paras. 382–​383 (considering attribution of the crime of genocide to the State “renders moot the question of whether [that State] satisfied its obligation of prevention in respect of the same conduct.”). 126 Draft Code of Crimes (1996), Article 4, Commentary, para. 2 (quoting Report of the International Law Commission on the Work of its Twenty-​Eighth Session, Draft Article 19, Commentary, para. 21, U.N. Doc. A/​31/​10, [1976] ii(2) YbILC 69 et seq., at 104, U.N. Doc. a/​ cn.4/​s er.4/​1976/​Add.1 (Part 2)). 127 The ilc also contemplated that this duality might be common in the context of international crimes because such conduct is often performed by State organs. See id., Commentary, para. 1.

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to such crime is that a State may be internationally responsible for individual criminal conduct attributed to it and yet may not be in breach of associated obligations related to prevention or punishment. In such circumstance, State responsibility may arise concurrently with individual criminal responsibility without complementary responsibility arising for breach of associated obligations of prevention and punishment. Because obligations erga omnes consist of primary rules distinct from the primary rules whose breach gives rise to crimes under international law, it follows that State responsibility for breach of the latter set of primary rules should be severable from the question of State responsibility for breach of the former set of primary rules. This conclusion is without prejudice to the question of whether a State’s performance of obligations erga omnes related to crimes under international law may be sufficient to discharge a State’s obligation of reparation arising as a consequence of State responsibility from attribution of a crime under international law.128 128 Shabtai Rosenne, State Responsibility and International Crimes: Further Reflections on Article 19 of the Draft Articles on State Responsibility, 30(1 & 2) New York University Journal of International Law and Policy 145, 164 (1997) (“Adequate punishment of an accused whose acts are attributable to a State may be adequate satisfaction if the responsibility of that State is established. A judgment of an international court or tribunal can in itself constitute satisfaction in a case of international responsibility.”). See Report of the Commission to the General Assembly on the Work of its Forty-​Eighth Session, [1996] ii(2) YbILC 58 et seq., at 63, U.N. Doc. A/​51/​10, a/​c n.4/​s er.a/​1996/​Add.1 (Part 2) (text of the draft articles provisionally adopted by the Commission on the first reading) (Article 45(2)(d)) (“In cases where the internationally wrongful act arose from the serious misconduct of officials or from criminal conduct of officials or private parties, [satisfaction may take the form of] disciplinary action against, or punishment of, those responsible.”). However, where punishment constitutes performance of associated obligations, it is unclear whether such punishment would be regarded as satisfaction. See Third Report on State Responsibility (James Crawford, Special Rapporteur), at 56, para. 192 (“Disciplinary or penal action is a further specific form of satisfaction … in practice [it has] occurred, although it may not always be clear whether prosecution of criminal conduct was sought by way of satisfaction or as an aspect of performance of some primary obligation.”). See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences).

­c hapter 5

Breach and the Interaction of Primary and Secondary Rules a

Relationship between Elements of Individual and State Responsibility

The applicability of primary rules to both the individual and the State presents issues that are unique to the operation of secondary rules governing the responsibility of individuals and States in international law. As demonstrated above, individual and State responsibility are governed by distinct sets of secondary rules.1 Notwithstanding this delineation of secondary rules, the attribution of conduct amounting to a breach of a primary rule applicable to both the individual and the State is a point of contact between the two forms of responsibility. This point of contact calls for a careful assessment of the establishment of breach of such a primary rule with respect to each subject of international law, with particular attention to the distinct elements required by secondary rules to establish individual responsibility for a crime under international law and State responsibility for an internationally wrongful act. It is a general principle of law that establishing criminal responsibility requires proving the presence of two elements of the offence: the objective element and the subjective element.2 The objective element of crime, actus reas, refers to the “guilty act” that constitutes the physical aspect of a crime.3 This objective, or material, element of crime is commonly understood to refer to conduct, attendant circumstance, or a result of conduct. The subjective element of crime, mens rea, refers to the “guilty mind” or criminal intent, and constitutes the state of mind necessary to convict an individual of a particular crime.4 There are generally four aspects of fault that define a culpable state of mind for purposes of the subjective element, namely, where an individual acted purposely, knowingly, recklessly, or negligently. Typically, a subjective element is applied to each objective element of the crime. The subjective 1 See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). 2 See discussion supra, Chapter 3.a (Elements of Individual Criminal Responsibility). 3 Black’s Law Dictionary, Actus Reus (11th ed. 2019). 4 Id., Mens Rea.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004505377_007

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element of crime provides that criminal liability is imposed on an individual only where such individual has “subjectively” associated themselves with the relevant objective element. Attribution of such conduct to the individual for purposes of criminal responsibility may be established through various modes of liability, each of which also consists of subjective and objective elements.5 Where these elements are established by a competent court or tribunal with respect to a crime under international law, individual criminal responsibility may ensue. Customary international law provides that State responsibility may arise for an internationally wrongful act where conduct, constituting an act or omission, is attributable to the State under international law and constitutes a breach of an international obligation of the State.6 The secondary rules of attribution, discussed in detail in Chapter 7, serve to identify the circumstances under which such conduct is properly regarded as an act of the State.7 Those circumstances may be summarized to include acts of organs of the State, or those operating in such capacity, or others who have acted under the direction or control of State organs.8 To engage State responsibility, conduct attributable to the State must constitute a breach of an international obligation of the State.9 There is a breach of an international obligation “when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”10 The international responsibility of the State for an internationally wrongful act may be engaged where these elements of attribution and breach are satisfied. This brief recitation of the respective elements of individual criminal responsibility and State responsibility under international law illustrates bipartite structures with functional similarities. However, while the elements of crime are sometimes analogized to the elements of State responsibility, important distinctions between them belie equivalence. The function of the element of breach of an international law obligation for purposes of State responsibility is superficially similar to the objective element of actus reas, the physical act necessary to establish an offence: each requires an assessment of conduct in light of an applicable primary rule to determine whether such a rule has been contravened. However, analogizing the element 5 6 7 8 9 10

See discussion infra, Chapter 6.a, (Modes of Attribution). See discussion supra, Chapter 4.a (Elements of State Responsibility). ilc Articles on State Responsibility, Article 3, Commentary, para. 4. Id., Part One, Chapter ii, Commentary, para. 2. Id., Article 2. Id., Article 12.

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of breach to the objective element of crime is at best incomplete. To establish a crime, including a crime under international law, both the objective and subjective elements of the crime must be satisfied; the objective element of a crime, without the subjective element, is insufficient to establish a breach of the respective primary rule that could give rise to individual criminal responsibility. Conversely, as demonstrated below, the element of breach for purposes of State responsibility, in the context of primary rules the breach of which gives rise to individual criminal responsibility, necessarily incorporates the subjective element of the underlying primary rule.11 The element of breach of a primary rule for purposes of State responsibility and the objective element of crime defy equivalence for practical purposes.12 Although secondary rules of attribution are the subject of Part 3 below, these rules also warrant brief mention in this context. On its face, the function of the element of attribution for purposes of State responsibility is not dissimilar to mens rea, the subjective element of crime; each element constitutes an assessment of whether the subject of potential responsibility may be legally accountable for conduct contravening a primary rule so as to engage responsibility.13 However, the element of attribution in the law of State responsibility, including in the context of primary rules associated with individual criminal responsibility, is objective in character by contrast to the subjective element of crime. In particular, attribution in the law of State responsibility calls for an objective assessment of whether conduct is regarded as an act of the State and does not include an element of fault.14 By contrast, the subjective element of crime is defined by degrees of fault that denote a culpable mental state that must accompany its material elements. The subjective element of crime is an inapposite analogue to the element of attribution in the law of State responsibility.15 Instead, international criminal law contains its own secondary rules 11 12 13 14 15

ilc Articles on State Responsibility, Article 2, Commentary, para. 10. See discussion infra, Chapter 8.b (Double Attribution). See contra Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 71–​ 118 (Leiden: Martinus Nijhoff 2009) (discussing “overlap of the material element”). See, e.g., Carlo de Stefano, Attribution in International Law and Arbitration 5–​6 (Oxford: oup 2020). ilc Articles on State Responsibility, Article 2, Commentary, para. 10. See contra Bonafè, op. cit. 119–​145 (discussing “overlap of the psychological element”); Vladimir-​Djuro Degan, Responsibility of States and Individuals for Genocide and other International Crimes, in Isabelle Buffard et al. [Eds.], International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner 527 (Leiden: Martinus Nijhoff 2008) (proposing that the rules of attribution for purposes of State responsibility “replace” the mental element of international crimes).

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of attribution—​or modes of liability—​which define the circumstances under which an individual may be held liable for a crime under international law.16 The secondary rules governing attribution in international criminal law therefore provide a closer functional analogue to the secondary rules of attribution in the law of State responsibility than does the subjective element of crime. While equivalence between the respective elements of crime and those of State responsibility may be difficult to sustain, in practice, the element of breach for purposes of State responsibility that is concurrent with individual criminal responsibility is referential to the elements of crime, such that the elements of an international crime—​which establish the breach of a primary rule applicable to both the individual and the State—​are necessary and sufficient to establish a breach of that same primary rule for purposes of State responsibility.17 Practice indicates that, where State responsibility may arise concurrently with individual criminal responsibility, determination of breach of a primary rule generating obligations for both the individual and the State calls for an assessment of the elements of crime to establish a breach of that primary rule with respect to either subject of responsibility.18 Put differently, where individual conduct constitutes a crime under international law and is subject to double attribution, such international criminal conduct is sufficient to establish breach of an obligation for purposes of State responsibility.19 For example, if an act of genocide giving rise to individual criminal responsibility is attributable to the State, such criminal conduct is sufficient to establish breach of an international law obligation of the State arising from the same primary rule prohibiting genocide.20 In this way, the element of breach for purposes of State responsibility for an internationally wrongful act arising from an international crime can be seen to subsume the subjective and objective elements of crime, to the extent that these elements of crime establish the objective fact of breach of the underlying primary rule. One corollary of this conclusion is that no

16 17

18 19 20

See discussion infra, Chapter 8.a (Principles of Attribution: Culpability and Objectivity Distinguished). Because State responsibility that is complementary to individual criminal responsibility arises from breach of a different primary rule, the relationship between the breach of underlying primary rules is different: see discussion supra, Chapter 4.d (Complementary State Responsibility). See discussion infra, Chapter 8.b (Double Attribution). Id. Application of the Genocide Convention (2007) paras. 166–​167. Accord. Application of the Genocide Convention (2015), paras. 128–​129.

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additional element (i.e., apart from the elements of breach and attribution) is required for an international crime to engage the responsibility of the State.21 This relationship between the elements of crime and the element of breach for purposes of State responsibility is consistent with the ordinary assessment of breach of an international obligation on the basis of individual conduct attributable to the State. An act of the State constituting a breach of an international obligation of that State has the effect of engaging State responsibility for that conduct. In the context of State organs, for example, the icj articulated this rule in its 2007 Application of the Genocide Convention judgment in the following terms: [T]‌he well-​established rule, one of the cornerstones of the law of State responsibility, [is] that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State.22 While primary rules giving rise to individual criminal responsibility are unique in that such rules apply to both the individual and the State—​and finding a breach of such a primary rule entails establishing the elements of the crime defined by that primary rule—​this applicability of primary rules to each subject of international law does not entail a departure from the ordinary role of the element of breach in the law of State responsibility. The icj set out this methodology in its 2015 Application of the Genocide Convention judgment: The Court will seek first to determine whether the alleged acts have been established … and then, should that be established, whether those physical acts were committed with intent to destroy the protected group, in 21

22

For a different view, see Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 631–​648 (2007) (arguing that State responsibility can only arise for the underlying individual criminal conduct in the presence of a “state policy” providing for such conduct). See discussion infra, Chapter 7.b.i (Secondary Rules of General Applicability). Application of the Genocide Convention (2007), para. 385. See similarly Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, i.c.j. Reports 1999, p. 62, para. 62 (“According to a well-​ established rule of international law, the conduct of any organ of a state must be regarded as an act of that state. This rule, which is of a customary character, is reflected in … the Draft Articles on State Responsibility.”) (hereinafter, “Difference Relating to Immunity (1999)”).

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whole or in part. Only if the Court finds that there has been genocide … will it consider … whether any acts … can entail the responsibility of Serbia.23 Here, the icj looked first to whether the element of breach of a primary rule could be established, by reference to the elements of the relevant crime, before assessing whether such conduct constituted an act of the State so as to engage its international responsibility. Notwithstanding this point of convergence between individual and State responsibility resulting from primary rules that apply to each subject of international law, individual criminal responsibility remains distinct from the international responsibility of the State.24 And although the underlying elements of crime must be satisfied to establish conduct in breach of a primary rule that may be attributed to the State, those elements are functionally distinct from the objective fact of breach of the primary rule that those elements establish. For instance, as discussed in greater detail in Chapter 4, fault is not an element of State responsibility.25 In this regard, the ilc has distinguished the objective breach of a primary rule that may constitute an act of the State from any subjective element forming part of the primary rule necessary to establish the fact of its breach: A related question is whether fault constitutes a necessary element of the internationally wrongful act of a State. This is certainly not the case if by “fault” one understands the existence, for example, of an intention to harm. In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of a State that matters, independently of any intention.26 In the present context, such a mental element may be understood to refer to the subjective element that must accompany the objective element of a crime in order to engage an individual’s criminal responsibility.27 State responsibility arises where breach of a primary rule established by such criminal conduct is

23 24 25 26 27

Application of the Genocide Convention (2015), paras. 201–​202. See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). See discussion supra, Chapter 4.a (Elements of State Responsibility). ilc Articles on State Responsibility, Article 2, Commentary, para. 10. See discussion infra, Chapter 8.a (Principles of Attribution: Culpability and Objectivity Distinguished). See discussion supra, Chapter 3.a.ii (The Subjective Element).

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attributable to the State,28 however the objective fact of breach does not alter, and is not altered by, the underlying assessment of the elements of crime. Consequently, while the breach of a primary rule attributable to the State that constitutes a crime under international law may be viewed as incorporating the subjective element of that crime, such subjective element has no further role in relation to the elements of State responsibility.29 The underlying assessment of the elements of crime to establish such breach does not affect the objective fact of breach of a primary rule. Put differently, where elements of crime establish breach of a primary rule, those elements nevertheless pertain to the individual who performed the criminal act at issue.30 There is no mens rea or actus reus of the State. Nor is the international responsibility of the State arising from an international crime attributed to it criminal in nature; State responsibility is unstratified and does not appear to vary on the basis of the character of the primary rule breached.31 It remains that individual criminal responsibility and State responsibility “pursue different aims,”32 and their attendant secondary rules provide for different consequences for each legal subject.33 Neither the unique applicability of relevant primary rules to both the individual and the State, nor the secondary rules governing individual criminal responsibility in international law, fundamentally alter the operation of secondary rules in the law of State responsibility in this regard. Because State responsibility that is complementary to that of the individual is based on primary rules distinct from those giving rise to concurrent State responsibility—​which rules apply to the State only and not to the

28 29

See discussion infra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52(3) iclq 615, 633 (2003) (“while the mental state of the author of the act is critical in the determination of individual responsibility, it generally is either irrelevant or manifests itself in a different, objectified, form in the determination of state responsibility.”). But see id. at 633–​635 (discussing other possible relevance of individual fault to State responsibility). See contra Bonafè, op. cit. 120–​124 (contemplating an additional subjective element to engage State responsibility for international crimes); see similarly Gaeta, op. cit. 635–​637. 30 See, e.g., Application of the Genocide Convention (2007), paras. 186–​189, 277, 376, 421–​422 (referring, with respect to the subjective element of crime of genocide, to the intent of perpetrators); Application of the Genocide Convention (2015), paras. 130, 132, 142, 145, 149, 161, 430, 437 (same). 31 See discussion supra, Chapter 4.c.iii (Crimes of States). 32 Application of the Genocide Convention (2015), para. 129. See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). 33 See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences).

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individual—​the element of breach for purposes of State responsibility does not bear a linear relationship to the elements of crime.34 Even so, the element of breach in State responsibility that is complementary to individual criminal responsibility is also referential to individual criminal conduct. State responsibility complementary to individual criminal responsibility, arising from obligations associated with the prevention and punishment of international crimes, is dependent upon the State’s failure to prevent or punish such conduct in performance of those obligations. As discussed above, establishing the elements of a crime under international law is necessary, but not sufficient, to establish a State’s breach of an international obligation concerning prevention of such crime.35 This conditionality would seem to apply generally where an obligation of prevention is at issue, meaning that establishing the perpetration of a crime under international law precedes any question of a State’s failure to perform an obligation to prevent such crime. Whether a State has breached an international obligation concerning prevention of an international crime is a fact-​specific inquiry into whether the State failed to perform a positive duty in relation to the crime perpetrated.36 By contrast, allegation of an international crime may be sufficient to implicate a State’s relevant international obligations concerning punishment of such crime (e.g., to investigate and prosecute or extradite), and establishing the elements of a crime under international law is neither necessary, nor sufficient, to establish a State’s breach of international obligations concerning punishment.37 The 2012 Questions Relating to the Obligation to Prosecute or Extradite judgment in particular provides an illustration of the separability of the elements of crime from the element of breach of a State’s relevant international obligations concerning punishment. In its judgment, in which the icj found that Senegal had breached obligations erga omnes under the Torture Convention by failing to investigate and prosecute or extradite Hissène Habré, the court referred to allegations of crimes under international law attributable to Habré but did not undertake any legal analysis of the elements of those crimes.38 The element of breach for purposes of State responsibility was not dependent upon establishing the elements of the underlying international 34 35 36 37 38

See discussion supra, Chapter 4.d.ii (Implications of Distinct Primary Rules). See discussion supra, Chapter 4.d.ii.1 (International Crime as a Prerequisite). Id. Id. Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 12–​13, 17–​20, 52–​55, 122.

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crime at issue; allegations of torture were sufficient to implicate Senegal’s obligations to investigate and prosecute or extradite. This example suggests the separability of the element of breach for purposes of complementary State responsibility for failure to perform obligations associated with the punishment of international crimes from the elements of the relevant crimes themselves. b

Sources of Law

Attribution of conduct to both the State and the individual in breach of primary rules applicable to each subject of international law is not dependent upon the positive source of the relevant primary rule. The primary rules that give rise to individual criminal responsibility and State responsibility for prohibited conduct subject to double attribution may arise under customary international law as well as multilateral international agreements.39 As a result, the positive source of the primary rule being applied in relation to the operation of secondary rules of attribution vis-​à-​vis the individual and the State to establish breach may be different with respect to each subject.40 Whatever the positive source of the applicable primary rule, it remains that the secondary rules of attribution may render, concurrently, the individual and the State responsible for the same underlying conduct. It is in this sense that “crimes under international law and [internationally] wrongful acts by a state will often coincide.”41 This coincidence does not appear to be contingent upon the positive source of the primary rule in breach vis-​à-​vis the individual and the State. From the standpoint of primary rules applicable to both the individual and the State,42 it is unclear why the positive source of a primary rule—​or, in particular, the application of different sources of a primary rule—​should necessarily impact a determination of breach of that underlying primary rule. The relevant test for establishing State responsibility is whether conduct attributed 39 40

41 42

See discussion supra, Chapter 2.a (Primary Rules). Application of the Genocide Convention (2015), para. 88 (“Where a treaty states an obligation which also exists under customary international law, the treaty obligation and the customary law obligation remain separate and distinct” (citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, p. 96, para. 179)). Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 44 (Oxford: 3d ed. oup 2014) (this result is, however, less common in the form of a formal legal determination of State responsibility than this observation seems to suggest.). See discussion supra, Chapter 2.a (Primary Rules).

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to the State establishes a breach of an obligation under international law.43 There is no apparent rationale that would preclude the breach of a primary rule based in one positive source (e.g., treaty law) from being established by breach of that primary rule based in a different positive source (e.g., customary international law).44 It therefore does not appear that the application of different positive sources of the same primary rule would necessarily be interpreted to mean that a different primary rule is being applied or that a different primary rule has been breached.45 The treatment of the crime of genocide by the icj is instructive in this regard. The icj observed, in its 2007 Application of the Genocide Convention judgment, that the treaty obligation under the Genocide Convention to prevent genocide “necessarily implies the prohibition of the commission of genocide.”46 In assessing whether a breach of this treaty-​based rule was attributable to the State, the icj considered whether acts adjudged to constitute genocide, as a crime under customary international law,47 were attributable to it.48 In a 43 44

ilc Articles on State Responsibility, Article 2. See contra Gaeta, op. cit. 631, 637 (2007) (arguing that “under international law the criminal liability of individuals and state responsibility for genocide are not triggered by the violation of the same primary rule.”). However, as identified above, the consequences for breach of a primary rule are determined by the operation of secondary rules, not the other way around. See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility); see discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). 45 But see citations id. 46 Application of the Genocide Convention (2007), para. 166. 47 Kristić, it-​98-​33-​t, Judgement, paras. 540–​541 (Aug. 2, 2001). Cf. Tadić, it-​94-​1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras. 143–​144 (Oct. 2, 1995) (“It should be emphasised again that the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty. … As the defendant in this case has not been charged with any violations of any specific agreement, we find it unnecessary to determine whether any specific agreement gives the International Tribunal jurisdiction over the alleged crimes.”). 48 See Application of the Genocide Convention (2007), para. 379 (“[T]‌he Court now must ascertain whether the international responsibility of the Respondent can have been incurred, on whatever basis, in connection with the massacres committed in the Srebrenica area during the period in question. For the reasons set out above, those massacres constituted the crime of genocide within the meaning of the Convention. … [I]t needs to be determined whether the acts of genocide could be attributed to the Respondent under the rules of customary international law of State responsibility; this means ascertaining whether the acts were committed by persons or organs whose conduct is attributable, specifically in the case of the events at Srebrenica, to the Respondent.”).

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variant of this same principle, in its 2015 Application of the Genocide Convention judgment, the icj, in finding that fry was not subject to obligations under the Genocide Convention at the relevant time, noted that acts of genocide at issue, by operation of secondary rules of attribution, could only “at most” have violated the prohibition of genocide under customary international law.49 In other words, the relevant primary rule—​the prohibition of genocide—​is reflected in both treaty and customary international law, and individual conduct amounting to the crime of genocide, if attributable to the State, could constitute a breach by the State of the primary rule prohibiting genocide irrespective of its positive source. To the extent that the icj contemplated attribution of acts of genocide as adjudged by the icty, crimes under customary international law, the customary international law source of the primary rule applied to the individual appears to have had no bearing on the question of whether such conduct constituted a breach by the State of a treaty-​based source of the relevant primary rule. Importantly, the legal consequences arising for a given subject of international law for breach of a primary rule are technically separate from that primary rule and the positive sources thereof.50 Where crimes under international law are at issue, the different legal consequences that may arise for individuals and States in relation to such crimes are a function of the operation of distinct secondary rules.51 The example of genocide suggests that an international crime breaches a primary rule applicable to both the individual and the State; different bodies of secondary rules provide for consequences of such breach in the field of responsibility for each subject.52 Maintaining a clear delineation between primary and secondary rules helps to avoid excessive formalism with regard to the treatment of positive sources on the basis of distinct legal consequences arising from the operation of different secondary rules. To be sure, the distinction between positive sources of a primary rule may be of great practical significance. For example, in the context of State responsibility arising in relation to international crimes, the jurisdiction of the icj has generally been successfully invoked under jurisdictional provisions of

49 50 51 52

See Application of the Genocide Convention (2015), para. 105. See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). Id. See also discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility); see also discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences).

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multilateral instruments, such as the Genocide Convention, to the exclusion of associated claims based in customary international law.53 This differentiation was determinative, for example, in the 2015 Application of the Genocide Convention judgment cited above, in which the fry was not subject to obligations under the Genocide Convention at the relevant time, and any breach of the prohibition of genocide under customary international law attributable to it was beyond the jurisdiction of the court.54 While the distinction between formal sources of a primary rule may have significant practical implications with respect to jurisdiction, it appears that attribution of individual criminal conduct to the State may give rise to State responsibility under either positive source of a primary rule because, in either instance, such conduct would constitute a breach of an international obligation of the State. In other words, regardless of a distinction in the positive sources of a primary rule, from the perspective of breach, it may largely be without difference because, regardless of the positive source of the primary rule whose breach is at issue, it remains that, facts permitting, the same underlying conduct, where attributable to the State, constitutes a breach of an international obligation of the State. And because the same conduct may be subject to double attribution, giving rise to both State and individual responsibility concurrently, responsibility for such conduct remains concurrent even if breach of the relevant primary rule is operationalized through different positive sources. In short, for purposes of dual responsibility, it appears that breach is not dependent upon the positive source of a primary rule as a matter of international law, though a distinction between positive sources may have significant practical implications for jurisdiction to adjudge State responsibility.55

53

See, e.g., Application of the Genocide Convention (1996), para. 41 (finding jurisdiction over the dispute solely on the basis of Article ix of the Genocide Convention, thereby excluding from jurisdiction claims regarding breaches of customary international law, including international humanitarian law and use of force); accord. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, i.c.j. Reports 1993, p. 325, para. 33 (finding no basis for jurisdiction over claims of international humanitarian law under customary international law). See similarly Application of the Genocide Convention (2015), paras. 87–​88 (citing Military and Paramilitary Activities in and against Nicaragua (1986), para. 179). 54 Application of the Genocide Convention (2015), para. 105. 55 In this regard, see discussion infra, Chapter 11.b (Jurisdiction over States under International Law).

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Standards of Proof

The burden of proof refers to the duty of a party to prove a disputed assertion or charge.56 The concept includes both a burden of persuasion (which refers to law) and a burden of production (which refers to fact),57 although this distinction does not often appear in the limited jurisprudence that addresses burden of proof in international law. The concept of burden of proof is relevant to adversarial proceedings of both an inter-​State nature (i.e., those adjudging State responsibility) as well as criminal proceedings (i.e., prosecution of individuals). Allocation of the burden of proof is generally informed by the maxim onus probandi incumbit actori.58 In inter-​State proceedings, it is generally accepted that the burden of proof rests with the party making an assertion,59 in accordance with what the icj has referred to as the “well-​established principle” of onus probandi incumbit actori.60 The icj has signaled that this burden is not, however, absolute, and may depend upon the nature of a dispute before the court in light, for example, of a duty of cooperation.61 To this end, some commentators suggest that the principle is flexible and potentially overstated in its 56 57 58

59

60

61

Black’s Law Dictionary, Burden of Proof (11th ed. 2019). Id. See, e.g., Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions 203–​206 (Oxford: oup 2008); Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence before International Tribunals 369 (The Hague: Kluwer Law International 1996) (“Onus probandi actori incumbit … is the basic rule of the burden of proof.”); Third Report on Diplomatic Protection (John Dugard, Special Rapporteur), Commentary to Draft Article 15, para. 102, U.N. Doc. a/​c n.4/​523 and Add.1, [2002] ii(2) YbILC 49 et seq., at 72, U.N. Doc. a.cn.4/​ ser.a/​2002/​Add.1 (Part 2) (“It is … generally accepted that the burden of proof is on the party which makes an assertion: onus probandi incumbit ei qui decit.”). See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1984, p. 392, para. 101 (“Ultimately, however, it is the litigant seeking to establish a fact who bears the burden of proving it.”). Accord. Avena and other Mexican Nationals (Mexico v. United States of America), Judgment, i.c.j. Reports 2004, p. 12, para. 55. See Application of the Genocide Convention (2007), para. 204. Shabtai Rosenne, I The Law and Practice of the International Court, 1920–​ 2005 1040 (Leiden: 4th ed. Martinus Nijhoff 2006). See, e.g., Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010, p. 14, para. 162 (hereinafter, “Pulp Mills (2010)”). See, e.g., Application of the Genocide Convention (2015), paras. 172–​173 (citing Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, i.c.j. Reports 2010 (ii), p. 660, para. 54, and Pulp Mills (2010), para. 163). Cf. Rosenne, op. cit. 1040–​1041.

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application to inter-​State proceedings.62 This potential variability may result from the difficult position in which an international court adjudging State responsibility may find itself with respect to fact finding, which may also be reflected in an avoidance of disputed facts and a focus on either facts that are not disputed or on points of law.63 Even so, as a point of departure, applicability of the onus probandi incumbit actori principle to inter-​State proceedings appears beyond question. This same principle informs the burden of proof in international criminal proceedings, in which the onus is on the prosecution to prove the guilt of the accused.64 This reflects a general principle of criminal law that the burden of proving the guilt of the accused rests with the prosecution.65 Consistent with the onus probandi incumbit actori principle, the defense caries the evidentiary burden when raising grounds for the exclusion of criminal responsibility (i.e., affirmative or special defenses).66 The standard of proof refers to the degree or quantum of proof required for a party to discharge its burden of proof.67 Unlike allocation of the burden of proof, which largely manifests a consistent guiding rule, the standard of proof demanded in inter-​State and criminal proceedings is guided by different principles and may vary significantly. This variability has the potential to functionally impact duality of responsibility and therefore requires careful attention. Understanding variability in standards of proof on the international plane begins with identifying standards of proof in domestic legal systems. In common law systems, an objective, probabilistic approach accounts for standards of proof that vary according to the character of a legal proceeding.68 A lower “preponderance of the evidence” standard is typical in civil litigation, which 62 Kazazi, op. cit. 85. Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common law Approaches with Special Reference to the American and German Legal Systems 187 (The Hague: Kluwer Law International 1998). 63 Cf. Kazazi, op. cit. 83–​85; Rosenne, op. cit. 1039. 64 See, e.g., Chui, icc-​01/​04-​02/​12 A, Judgement on the Prosecutor’s appeal against the decision of Trial Chamber ii entitled “Judgement pursuant to article 74 of the Statute,” para. 25 (Apr. 7, 2015); Ntawukulilyayo, ictr-​05-​82-​a , Judgement, para. 103 (Dec. 14, 2011); D. Milošević, it-​98-​29/​1-​a , Judgement, para. 231 (Nov. 12, 2009). 65 See, e.g., Janet Loveless et al., Complete Criminal Law 12 (Oxford: 7th ed. oup 2020) (referring to “a fundamental principle of the common law”). 66 See, e.g., Ongwen, icc-​02/​04-​01/​15, Decision on Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute, paras. 14–​15 (Apr. 5, 2019). 67 Black’s Law Dictionary, Standard of Proof (11th ed. 2019); Cf. Kazazi, op. cit. 323–​326. 68 Cf. Kevin M. Clermont and Emily Sherwin, A Comparative View of Standards of Proof, 50(2) The American Journal of Comparative Law 243, 251–​253 (2002).

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reflects a more-​likely-​than-​not burden of proof.69 Certain litigation, for example impacting particular rights, calls for an intermediate “clear and convincing evidence” standard, which entails a burden of proof of high probability.70 And the highest, “beyond a reasonable doubt” standard is characteristic of criminal proceedings and demands a burden of proof of reasonable certainty.71 This gradation in burdens of proof in common law systems can be seen to require a greater degree of proof, and as such a greater level of certainty, based upon the nature of a proceeding. One compelling explanation for this differentiation is the relative importance of error minimization in different kinds of proceedings or, put differently, the allocation of weighted burdens based on the harm of an incorrect outcome.72 Accordingly, the requirement that the elements of a crime be established beyond a reasonable doubt is inextricably linked to the nature of penalties that ensue under criminal law and, in particular, the potential deprivation of liberty, or in some systems life, resulting from conviction.73 By contrast to domestic common law systems, civil law systems adopt an undifferentiated standard of proof that calls for the personal persuasion of the judge.74 This civil law standard of proof may be seen in some instances as comparatively more subjective in its employment of concepts like intime conviction as the measure of satisfaction of the applicable evidentiary burden untethered from any specific standard.75 The civil law standard of proof is often equated in practice to reflect, or as being roughly equivalent to, the “beyond a reasonable doubt” standard applicable in common law criminal proceedings,76 though a true equivalence between the two may not be possible.77 Even so, this civil law standard of proof, which is applicable across all civil law proceedings, is generally regarded to be more demanding than the lower and intermediate 69 70

Id. at 251. See, e.g., Miller v. Minister of Pensions, [1947] 2 All er 372, [1947] ljr 203. Clermont and Sherwin, op. cit. 251; Kokott, op. cit. 20. See, e.g., Colorado v. New Mexico, 467 U.S. 310 (1984). 71 Clermont and Sherwin, op. cit. 251; Kokott, op. cit. 19. See, e.g., In re Winship, 397 U.S. 358 (1970). 72 Clermont and Sherwin, op. cit. 252–​253. 73 See, e.g., Jeremy Horder, Ashworth’s Principles of Criminal Law 11 (Oxford: 9th ed. oup 2019). 74 Cf. Clermont and Sherwin, op. cit. 245–​246; Michele Taruffo, Rethinking the Standards of Proof, 51(3) The American Journal of Comparative Law 659, 666 (2003); Kazazi, op. cit. 324. 75 Taruffo, op. cit. 666–​672; Kazazi, op. cit. 324–​325; Caroline E. Foster, Burden of Proof in International Courts and Tribunals, 29 Australian Year Book of International Law 27, 33–​34 (2010). 76 See, e.g., Kokott, op. cit. 18; Clermont and Sherwin, op. cit. 246. 77 Cf. Taruffo, op. cit. 672.

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standards found in common law systems.78 Perhaps due to its undifferentiation and relative subjectivity, the standard of proof applicable in civil law systems does not garner the level of attention or emphasis as do the standards applicable in common law systems.79 The different formulations of standards of proof in domestic proceedings provide a framework for discussing standards of proof applicable in international proceedings. In international criminal law, the standard of proof uniformly applied by international courts and tribunals adjudging individual criminal responsibility is the “beyond a reasonable doubt” standard.80 This standard of proof is reflected in the rules of procedure of the ad hoc international criminal tribunals as well as the Rome Statute.81 The “beyond a reasonable doubt” standard is the same standard applied in domestic criminal proceedings in common law systems and, arguably, is practically equivalent to the high standard of proof applied in criminal proceedings in civil law systems.82 This standard of proof applies to both the elements of crime and the mode of attribution.83 In principle, a cautious generalization may be drawn that prosecution of crimes under international law before both international and domestic courts is subject—​explicitly or implicitly—​to at least an approximation of the same high standard of proof beyond a reasonable doubt. A relative harmonization of standards of proof applicable across international and domestic criminal law proceedings would militate against variable prosecutorial outcomes on the basis of different applicable standards of proof. In a legal order characterized 78 79 80

81

82 83

Clermont and Sherwin, op. cit. 245–​246. Id. at 253–​255. See, e.g., Chui, icc-​01/​04-​02/​12 A, Judgement on the Prosecutor’s appeal against the decision of Trial Chamber ii entitled “Judgement pursuant to article 74 of the Statute,” paras. 25, 109 (Apr. 7, 2015); Mrkšić and Šljivančanin, it-​95-​13/​1-​a , Judgement, para. 217 (May 5, 2009); Fofana and Kondewa, scsl-​04-​14-​a , Judgement, esp. para. 63 (May 28, 2008) (applying the standard throughout); Ntagerura et al., ictr-​99-​46-​a , esp. para. 170 (July 7, 2006) (“Article 20(3) of the Statute … embodies a general principle of law, that the Prosecution bears the onus of establishing the guilt of the accused beyond reasonable doubt.”). As a general principle of criminal law, cf. Jeremy Horder, Ashworth’s Principles of Criminal Law 11 (Oxford: oup 2019); David Ormerod et al., Smith and Hogan’s Criminal Law 50–​51 (Oxford: oup 2015); van Sliedregt, op. cit. 39. Rome Statute (1998), Article 66(3) (“the Court must be convinced of the guilt of the accused beyond reasonable doubt.”). Accord. icty rpe, Rule 87(A) (“A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”); ictr rpe, Rule 87(A); scsl rpe, Rule 87(A); mict rpe, Rule 104(A); stl rpe, Rule 148(A). See discussion supra, n. 76. See supra, n. 80.

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by complementarity between international and domestic jurisdictions, in which each may exercise competence to prosecute crimes under international law,84 such correspondence would be expected to contribute to consistency in the application of international criminal law. There is considerably less clarity regarding the standard of proof applicable in proceedings adjudging State responsibility for internationally wrongful acts. As a point of departure, there is no established standard of proof that is generally applicable to inter-​State proceedings or the adjudication of State responsibility.85 The absence of a formal standard of proof is typically attributed to the influence of civil law, requiring only the persuasion of the judge rather than an objective quantum of evidence.86 Despite the lack of a formal approach to standards of proof in international proceedings, however, a standard of proof is sometimes articulated by international courts and tribunals adjudging State responsibility. The IACtHR has observed that “the standards of proof are less formal in an international legal proceeding than in a domestic one. The latter recognize different burdens of proof, depending upon the nature, character and seriousness of the case.”87 In this sense, the icj has occasionally articulated applicable standards of proof, though it is more often for these to appear in the separate or dissenting opinions of judges than in the judgments of the court itself.88 The practice of international courts and tribunals indicates that a higher standard of proof is applied in cases of “exceptional gravity.” Corfu Channel is often cited for the proposition that relatively more serious inter-​State claims

84 85 86 87 88

See discussion infra, Chapter 11.a (Jurisdiction over Individuals under International Law). See, e.g., Kazazi, op. cit. 325; Foster, op. cit. 33. Id. See icj Statute, Article 53 (“Whenever one of the parties does not appear before the Court … [t]‌he Court must … satisfy itself … that the claim is well founded in fact and law.” (emphasis added)). See Velasquez Rodriguez Case, IACtHR, Judgment of July 29, 1988, (Ser. C) No. 4, para. 128 (hereinafter, “Velasquez Rodriguez Case (1988)”). Cf. id. paras. 127–​129. It has been suggested that the various standards of proof applied by the icj can be roughly mapped onto the three common law standards of proof identified above: see Foster, op. cit. 60 (2010); cf. Kazazi, op. cit. 343–​352. It has also been suggested that the applicable standard of proof varies depending upon the procedural phase of a case or the function of the court. For example, a relatively lower standard of proof appears to be employed where the icj exercises a declaratory function (e.g., in the context of a sovereignty dispute or boundary definition), while a relatively higher standard of proof is applied where the icj renders a determination of State responsibility for an internationally wrongful act. Cf. Katherine Del Mar, The International Court of Justice and Standards of Proof, in Karine Bannelier et al. [Eds.], The ICJ and the Evolution of International Law: The Lasting Impact of the Corfu Channel Case 90–​123 (Abingdon: Routledge 2012).

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are subject to a heightened standard of proof. There, in the context of mines allegedly deployed in violation of international humanitarian law, the icj considered that “[a]‌charge of such exceptional gravity against a State would require a degree of certainty,” established by “decisive legal proof,” that would “leave no room for reasonable doubt.”89 By contrast, it has been observed that the standard of proof generally applied in inter-​State proceedings not of such “exceptional gravity” is a lower, preponderance of the evidence standard akin to that applied in civil proceedings in common law systems.90 Although the lack of a formal standard of proof in international proceedings is typically attributed to the influence of civil law,91 the application in practice of varying standards of proof is not unlike differentiation in the standards of proof applicable in common law systems.92 89

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Corfu Channel Case (United Kingdom v. Albania), Judgment, i.c.j. Reports 1949, p. 4, 16–​18 (emphasis in original) (hereinafter, “Corfu Channel (1949)”). Analogously, the Iran-​ U.S. Claims Tribunal has required an “enhanced standard of proof” when confronted with “particularly grave” allegations: see Dadras International, et al. v. Islamic Republic of Iran, et al., Iran-​U.S. Claims Tribunal, Award No. 567-​213/​215-​2, paras. 123–​124 (Nov. 7, 1995), reprinted in 31 Iran-​U.S. Claims Tribunal Reports 127, 162 (1995) (applying a “clear and convincing evidence” standard to allegations of forgery); Oil Fields of Texas v. Government of the Islamic Republic of Iran, Iran-​U.S. Claims Tribunal, Award No. 258-​ 43-​i , para. 25 (Oct. 8, 1986), reprinted in 12 Iran-​U.S. Claims Tribunal Reports 308, 315 (1986-​i ii) (applying a “reasonable doubt” standard to allegation of bribery). Cf. David D. Caron and Lee M. Caplan, The UNCITRAL Arbitration Rules: A Commentary 559 (Oxford: oup 2013). See, e.g., Pulp Mills (2010), Sep. Op. Greenwood, 230, paras. 25–​26 (“The Court has, however, indicated … that charges of conduct as grave as genocide require ‘proof at a high level of certainty appropriate to the seriousness of the allegation’. It is implicit in that statement that a lower standard of proof is acceptable in the case of other, less grave, allegations.” (internal citation omitted)). Cf. Foster, op. cit. 60–​62. See discussion supra, n. 86. While attention to standards of proof is sometimes regarded as a preoccupation of common law lawyers, it has been observed that the frequent absence of treatment of standards of proof in international legal proceedings has the potential to undermine legal certainty and the reasoning of courts and tribunals operating in the absence of any articulated standard. See Kokott, op. cit. xvii-​xviii, 4. Calls for clarity in the application of standards of proof in international proceedings have been raised, perhaps unsurprisingly, predominantly by judges from common law systems: see, e.g., Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, i.c.j. Reports 2003, p. 161, Sep. Op. Higgins, paras. 30–​39; id., Sep. Op. Buergenthal, para. 41; Pulp Mills (2010), Sep. Op. Greenwood, paras. 25–​26. It bears noting also that the ECtHR applies the “beyond a reasonable doubt” standard in its proceedings, though the precise contours of this standard are unclear and the court has clarified that it is not intended to import the standard found in common law criminal systems. See, e.g., Ireland v. United Kingdom, ECtHR (Plenary), No. 5310/​71, Judgment, para. 161 (Jan. 18, 1978) (“[T]‌he Court adopts the standard of proof ‘beyond reasonable

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In cases concerning the attribution of conduct amounting to a crime under international law to the State, the icj has applied a heightened standard of proof in calling for evidence that is “fully conclusive.” The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive. The Court requires that it be fully convinced that allegations made in the proceedings, that the crime … or the other acts … have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts.93 The question naturally arises whether the heightened standard of proof applicable in proceedings concerning breach of rules associated with international crimes aligns with the “beyond a reasonable doubt” standard applicable in proceedings adjudging individual criminal responsibility. Answering this question in the negative, the eecc emphasized a distinction between these standards of proof: [I]‌n light of the gravity of some of the claims advanced, the Commission will require clear and convincing evidence in support of its findings. [However, t]he Commission does not accept any suggestion that, because some claims may involve allegations of potentially criminal individual conduct, it should apply an even higher standard of proof corresponding to that in individual criminal proceedings. The Commission is not a criminal tribunal assessing individual criminal responsibility. It must instead decide whether there have been breaches of international law based on normal principles of state responsibility. The possibility that particular findings may involve very serious matters does not change the international law rules to be applied or fundamentally transform the quantum of evidence required.94 doubt’ but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.”). Accord, e.g., Husayn (Abu Zubaydah) v. Poland, ECtHR (Fourth Section), No. 7511/​13, Judgment, para. 394 (July 24, 2014) (“[T]he Court has adopted the standard of proof ‘beyond reasonable doubt’. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard.”). 93 Application of the Genocide Convention (2007), para. 209 (citing Corfu Channel (1949), 17). Accord. Application of the Genocide Convention (2015), paras. 177–​179. 94 Eritrea-​ Ethiopia Claims Commission—​ Partial Award: Prisoners of War—​ Eritrea’s Claim 17, Decision of 1 July 2003, xxvi riaa 23–​72, at 41, paras. 46–​47. See similarly

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Although the eecc acknowledged the gravity of certain claims at issue, it rejected the applicability of the standard of proof required in criminal law to proceedings concerning State responsibility, even where crimes under international law were at issue, invoking instead a standard of proof akin to the intermediate standard found in common law systems. By contrast, the icj has not drawn such a clear delineation between the standards of proof applicable in criminal and inter-​State proceedings. For example, in its 2007 Application of the Genocide Convention and 2015 Application of the Genocide Convention judgments, the icj at times invoked the standard of proof and evidentiary standards of international criminal law in its assessment of whether individual acts of genocide had been committed for purposes of attribution of such acts to the State.95 In assessing whether an organ or person furnishing aid or assistance to the principal perpetrator of genocide had knowledge of the principal’s dolus specialis, the icj reasoned in its 2007 Application of the Genocide Convention judgment that—​ the sole task of the Court is to establish the legal responsibility of the Respondent [State], a responsibility which is subject to very specific conditions. One of those conditions is not fulfilled, because it is not established beyond any doubt[.]‌96 This reasoning by the icj suggests that it had in practice imported a criminal law burden of proof when assessing whether elements of individual criminal responsibility had been established for purposes of attributing an international crime to the State. If the standard of proof required in criminal proceedings were to be applied to the elements of crime in proceedings adjudging State responsibility for such conduct, such a unified approach would serve to promote harmonization between inter-​State proceedings concerning crimes under international law and criminal prosecution of individuals for those same acts. Conversely, the application of different burdens of proof with respect to the prosecution

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Eritrea-​ Ethiopia Claims Commission—​ Partial Award: Prisoners of War—​ Ethiopia’s Claim 4, Decision of 1 July 2003, xxvi riaa 73–​114, at 88, paras. 37–​38. See, e.g., Application of the Genocide Convention (2007), para. 422 (finding element of genocide had not been “established beyond any reasonable doubt.”); Application of the Genocide Convention (2015), para. 148 (finding, with respect to dolus specialis of the crime of genocide, that “the criterion applied by the icty Trial Chamber in the Judgment in the Tolimir case is in substance identical with that laid down by the Court in its 2007 Judgment.”). Application of the Genocide Convention (2007), para. 422.

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of individuals for crimes under international law and adjudication of State responsibility arising from attribution of such crimes creates the potential for divergent outcomes in proceedings concerning the same underlying conduct. If the standard of proof required in inter-​State proceedings of “exceptional gravity,” assumed here to include attribution of international crimes, is lower than the standard of proof applied in criminal proceedings, there is a possibility—​however remote, but not merely theoretical—​that a court assessing State responsibility could render findings with respect to international crimes for purposes of attribution that could not be established beyond a reasonable doubt (or to a similarly high standard) by a prosecutor before a court or tribunal with jurisdiction over individuals. There are various aspects of the practice of the icj that militate against such a result, that is, a finding of State responsibility arising from crimes under international law on the basis of factual determinations that depart from those established (or not) in prior criminal proceedings for the same underlying conduct. One such factor is the reliance of the icj where possible on uncontested facts and avoidance of disputed facts in its decisions.97 A related factor is the icj’s likely deference to the findings of criminal adjudication. In its 2007 Application of the Genocide Convention decision, for example, the icj expressed this position with respect to conduct assessed by the icty for purposes of its attribution to the State: [T]‌he Court concludes that it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight. … [T]he Court attaches the utmost importance to the factual and legal findings made by the icty in ruling on the criminal liability of the accused before it and, in the present case, the Court takes fullest account of the icty’s trial and appellate judgments dealing with the events underlying the dispute.98 This example of the icj’s reference to conclusions of the icty signals the court’s readiness to accept findings of fact rendered by a competent criminal court or tribunal.99 It would mark a departure from the icj’s albeit limited practice in 97 Rosenne, op. cit. 1039; Kazazi, op. cit. 83–​85. 98 Application of the Genocide Convention (2007), paras. 223, 403. 99 Id. paras. 213–​214 (The icj, quoting Armed Activities on the Territory of the Congo (2005), para. 61 (“evidence obtained by examination of persons directly involved, and who were

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this area to render independent factual findings on elements of international crimes that depart from those rendered in prior criminal proceedings.100 By contrast, it may be relatively more likely in the case of prosecution of international crimes following a finding of State responsibility that such criminal proceedings may reach different conclusions with respect to the same underlying conduct. A criminal court or tribunal applying a relatively higher standard of proof could find itself in a position to do so irrespective of prior findings by an international court or tribunal adjudging State responsibility.101 Therefore, if State responsibility is subject to a lower standard of proof than associated criminal proceedings, the possibility arises that State responsibility may ensue, notwithstanding a subsequent failure to establish individual criminal responsibility for the same conduct, as a function of different standards of proof.102 Because the standards of proof to establish State responsibility and international criminal responsibility are formally distinct, it is unclear whether the standard of proof that must be satisfied to establish individual criminal subsequently cross-​examined by judges skilled in examination and experienced in assessing large amounts of factual information, some of it of a technical nature, merits special attention.”), explained that “[t]‌he fact-​finding process of the icty falls within this formulation, as ‘evidence obtained by examination of persons directly involved’, tested by cross-​examination, the credibility of which has not been challenged subsequently.”). 100 See, e.g., id. para. 277 (“The Court is however not convinced, on the basis of the evidence before it, that it has been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such. The Court has carefully examined the criminal proceedings of the icty and the findings of its Chambers, cited above, and observes that none of those convicted were found to have acted with specific intent (dolus specialis). … In the exercise of its jurisdiction under the Genocide Convention, the Court finds that it has not been established by the Applicant that the killings amounted to acts of genocide prohibited by the Convention.”). 1 01 See, e.g., Kvočka et al., it-​98-​30/​1, Decision on Interlocutory Appeal by the Accused Zoran Zigic against the Decision of Trial Chamber i dated 5 December 2000, paras. 17–​18 (May 25, 2001) (“No legal basis exists for suggesting that the International Tribunal must defer to the International Court of Justice such that the former would be legally bound by decisions of the latter. … [T]‌he International Tribunal has its own competence. … As a result the International Tribunal may arrive at different conclusions, and differences in holdings may occur.”). Accord. Delalić et al., it-​96-​21-​a , Judgement, para. 24 (Feb. 20, 2001) (“this Tribunal is an autonomous international judicial body, and although the icj is the ‘principal judicial organ’ within the United Nations system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion.”). 102 Nollkaemper (2003), op. cit. 630 (endorsing this possibility).

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responsibility should have any bearing on the standard of proof that must be satisfied to establish State responsibility.103 In this respect, it bears recalling that the rationales underlying the heightened standards of proof in criminal prosecution and inter-​State proceedings of “exceptional gravity” are distinct. This distinction is indicative of broader differences in the procedures of a criminal court or tribunal to those of a court or tribunal adjudging State responsibility.104 As a general matter, the requirement that the elements of a crime and mode of attribution must be established beyond a reasonable doubt is linked to the nature of penalties that ensue under criminal law.105 Particularly in domestic common law systems, one explanation for applying a higher standard of proof as compared to the standards applicable in other proceedings is the relatively greater importance of error minimization in light of the legal consequences arising from an adverse judgment.106 By contrast, in inter-​State proceedings, the applicability of a heightened standard of proof in matters of exceptional gravity is based on the seriousness of a charge against the State.107 The available consequences arising for the breaching State for an internationally wrongful act do not vary according to the primary rule breached.108 The rationale for applying a heightened standard of proof in inter-​State proceedings, where applicable, therefore appears principally to be a function of the primary rule at issue (i.e., the seriousness of the breach alleged) rather than the consequences arising from its breach. This distinction in rationales for the applicability of heightened standards of proof in criminal proceedings and inter-​State proceedings has been invoked in opposition to the application of a heightened standard of proof in inter-​State proceedings, even where the attribution of conduct amounting to a crime under international law is at issue.109 1 03 Cf. id. See also van Sliedregt, op. cit. 7. 104 See, e.g., Application of the Genocide Convention (2015), para. 129 (“It is for the Court … to decide whether acts of genocide have been committed, but it is not for the Court to determine the individual criminal responsibility for such acts. That is a task for the criminal courts or tribunals empowered to do so, in accordance with appropriate procedures.”); Application of the Genocide Convention (2007), para. 181 (referring to “[t]‌he different procedures followed by, and powers available to, this Court and to the courts and tribunals trying persons for criminal offences.”). 105 See, e.g., Jeremy Horder, Ashworth’s Principles of Criminal Law 11 (Oxford: 9th ed. oup 2019). 106 Clermont and Sherwin, op. cit. 252–​253. 107 See discussion supra, accompanying nn. 89–​97. 108 See discussion infra, Chapter 9.b.i (Consequences for the Responsible State). 109 This point has been made in separate opinions attached to the cases discussed above. See, e.g., Application of the Genocide Convention (2015), Diss. Op. Cançado Trindade, para. 124; id., Sep. Op. Gaja, paras. 4–​5 (“The main difference between international criminal responsibility and State responsibility for genocide concerns the standard of proof.

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A final question pertains to whether the heighted standard of proof applicable in proceedings concerning State responsibility arising concurrently with individual criminal responsibility (i.e., involving the attribution of criminal conduct to the State) is the same as that concerning State responsibility that is complementary to individual criminal responsibility (i.e., involving the breach of a primary rule related to, but distinct from, those giving rise to individual criminal responsibility).110 While State responsibility concurrent with individual criminal responsibility would ordinarily entail the attribution of affirmative acts,111 State responsibility that is complementary to individual criminal responsibility would generally arise from an omission by the State—​its failure to perform certain obligations with respect to crimes under international law.112 It has been suggested that the icj generally applies a relatively higher standard of proof to claims regarding the commission of acts and a relatively lower standard of proof to omissions or failure to act.113 The decisions discussed above in which the icj applied a heightened standard of proof—​in its Corfu Channel, 2007 Application of the Genocide Convention and 2015 Application of the Genocide Convention judgments—​each concerned the attribution of “exceptionally grave” conduct to the State. It follows to consider whether a court adjudging State responsibility for breach of obligations arising in relation to crimes under international law (e.g., for failing to perform obligations in relation to such conduct) might be expected to apply a lower standard of proof than in relation to State responsibility arising through attribution of individual criminal conduct. The limited practice of the icj regarding duality of responsibility suggests such a distinction. In its 2007 Application of the Genocide Convention and 2015 Application of the Genocide Convention judgments, the icj clearly applied a heightened standard of proof to claims concerning the attribution of international crimes to the State.114 By contrast, the icj has not articulated an applicable standard of proof to claims concerning the failure of the State

1 10 111 112 113 114

… [I]‌t would be difficult to explain why the seriousness of the alleged wrongful act and its connection with international crimes should make the establishment of international responsibility more difficult.”). But see id., Sep. Op. Bhandari, para. 2 (“I recall that it is a well-​settled principle of law that the graver the offence alleged, the higher the standard of proof required for said offence to be established in a court of law.”). See discussion supra, Chapter 4.b (Two Categories of Primary Rules). See discussion supra, Chapter 4.c (Concurrent State Responsibility). See discussion supra, Chapter 4.d (Complementary State Responsibility). Cf. Del Mar, op. cit. § 7.3.1. Application of the Genocide Convention (2007), para. 209 (citing Corfu Channel (1949), 17); Application of the Genocide Convention (2015), paras. 177–​179.

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to perform obligations erga omnes in relation to crimes under international law. This omission is most notable in Questions Relating to the Obligation to Prosecute or Extradite, in which the court found Senegal to be responsible for breach of its obligations erga omnes under the Torture Convention by failing to investigate and extradite or prosecute Hissène Habré for acts of torture in Chad.115 The case addressed only State responsibility that is complementary to individual criminal responsibility arising from omissions by the State and did not concern State responsibility arising concurrently with individual criminal responsibility. In its judgment, the icj did not articulate the standard of proof applied, notwithstanding the nexus to crimes under international law. To the extent that this limited practice does indicate deviation in applicable standards of proof, one possible implication of such deviation is that claims regarding the failure of a State to perform its obligations in relation to crimes under international law may not rise to the same “exceptional gravity” as claims involving attribution of crimes under international law. Given that “exceptional gravity” is the icj’s stated criterion for applying a heightened standard of proof, this conclusion would seem to follow. A narrower conclusion may be that the court considered at least certain claims under the Genocide Convention to be of exceptional gravity while claims arising under the Torture Convention did not expressly meet that same standard. The icj’s reference to the jus cogens status of the relevant underlying primary rules in each case, and in particular the erga omnes character of obligations at issue, might militate against such an inference.116 A final possible consideration is that establishing State responsibility for actions in breach of a State’s international obligations may demand, for practical reasons, a greater degree proof than establishing responsibility for omissions that breach a State’s international obligations. A similar distinction is reflected in the icj’s disparate treatment of attribution in cases concerning actions and omissions, a practice discussed further in Chapter 7.117 1 15 Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69, 88, 117. 116 Application of the Genocide Convention (2015), para. 87; Application of the Genocide Convention (2007), paras. 161–​162; Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69, 99. 117 See discussion infra, Chapter 7.b.ii (Actions and Omissions).

pa rt 3 Attribution

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­c hapter 6

Rules of Attribution in International Criminal Law a

Modes of Attribution

International law admits various modes of allocating responsibility to i­ndividuals for crimes under international law. These modes, reflected in the statutes of the ad hoc international criminal tribunals, include committing, planning, ordering, instigating, and aiding and abetting, as well as forms of joint commission and superior responsibility.1 It has been asserted, on the basis of accumulated practice of international criminal law, that these modes of individual criminal responsibility belong to customary international law,2 though these aspects of international criminal law may more precisely be related to general principles of law.3 The Rome Statute also incorporates these modes of attribution, and adds to them the concept of perpetration-​by-​means not regarded as having a basis outside the Rome Statute.4 The statutes of hybrid courts and tribunals reflect, to various degrees, the modes of attribution included in the statutes of the icc and the ad hoc tribunals.5 The principle of 1 See, e.g., icty Statute (1993), Article 7(1); ictr Statute (1994), Article 6(1). See similarly Rome Statute, Article 25(3). Cf. Jérôme de Hemptinne et al. [Eds.], Modes of Liability in International Criminal Law (Cambridge: cup 2019); Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 194–​ 197 (Oxford: 3d ed. oup 2014); Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part 103–​232 (Oxford: oup 2013); Elies van Sliedregt, Individual Criminal Responsibility in International Law 89–​156 (Oxford: oup 2012); Antonio Cassese et al. [Eds.], Cassese’s International Criminal Law 161–​206 (Oxford: 3d ed. oup 2013). See also Tadić, it-​94-​1-​a , Judgement, paras. 185–​187 (July 15, 1999). 2 See, e.g., Tadić, it-​94-​1-​t, Judgement, paras. 663–​ 669 (May 7, 1997); Tadić, it-​94-​1-​a , Judgement, para. 194 (July 15, 1999); Bagilishema, ictr-​95-​1A-​A, Judgement, para. 34 (July 3, 2002); Brima et al., scsl-​04-​16-​t, Judgement, para. 761 (June 20, 2007); Fofana and Kondewa, scsl-​04-​14-​t, Judgement, para. 202 (Aug. 2, 2007). 3 This is not to suggest that the rules of attribution in international criminal law are the same as those found in domestic law. See, e.g., Kai Ambos, Article 25 Individual Criminal Responsibility, in Otto Triffterer [Ed.], Commentary on the Rome Statute of the International Criminal Court 746 (München: 2d ed. C.H. Beck 2008). 4 Rome Statute (1998), Article 25(3). See, e.g., Werle and Jessberger, op. cit. 196. 5 See, e.g., United Nations Transnational Administration in East Timor, Regulation No. 2000/​15, On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, untaet/​r eg/​2000/​15, Section 14 (June 6, 2000) (parallels modes of attribution in Article 25 of the Rome Statute) (hereinafter, “untaet Regulation (2000)”); Law on the Establishment

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culpability animates the operation of the secondary rules of attribution for purposes of allocating responsibility for international crimes.6 These secondary rules include modalities that capture both the commission of a crime and contribution to the crimes of others, a distinction reflected in different degrees of participation and intent.7 The various modes of attribution may be generally divided into four categories: commission, encouragement, assistance, and superior responsibility. Modes of attribution falling under each category are considered in turn. It bears noting that modes of liability in international criminal law are consciously referred to also as modes of attribution in part to underscore the functional parallel between the secondary rules of liability in international criminal law and the secondary rules of attribution in the law of State responsibility discussed in Chapter 7.8 With respect to both individual and State responsibility, secondary rules of attribution define the conditions under which a subject may incur responsibility for a breach of international law. The relationship and differentiation between the secondary rules of attribution in international criminal law and the law of State responsibility are evaluated in Chapter 8.

of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, ns/​r km/​0801/​12, Article 29 (Aug. 10, 2001) (as amended Oct. 27, 2004 (ns/​r km/​1004/​006)) (contemplating responsibility for individuals “who planned, instigated, ordered, aided and abetted, or committed the crimes” within the jurisdiction of the eccc, as well as superior responsibility) (hereinafter, “eccc Law (2001)”); scsl Statute (2002), Article 6 (parallels modes of attribution in icty and ictr Statutes at Articles 7(1) and 6(1), respectively); Coalition Provisional Authority—​The Statute of the Iraqi Special Tribunal, Article 15 (Dec. 10, 2003), reprinted in 43(1) ilm 231 et seq. (2004) (parallels modes of attribution in Article 25 of the Rome Statute); stl Statute (2007), Article 3 (contemplating responsibility for individuals who “committed, participated as accomplice, organized or directed others to commit” covered crimes, as well as responsibility under theories of joint commission and superior responsibility); eac Statute (2013), Article 10 (“A person who committed, ordered, planned or instigated others to commit, or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime, as a principal or accomplice.”). 6 Werle and Jessberger, op. cit. 41-​42; Ambos (2013), op. cit. 93–​95. See discussion infra, Chapter 8.a (Principles of Attribution: Culpability and Objectivity Distinguished). 7 Bemba et al., icc-​01/​05-​01/​13 A6 A7 A8 A9, Judgement on the appeals of the Prosecutor, Mr Jean-​Pierre Bemba Gombo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber vii entitled “Decision on Sentence pursuant to Article 76 of the Statute,” para. 60 (Mar. 8, 2018). 8 See discussion infra, Chapter 7 (Rules of Attribution in the Law of State Responsibility).

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Commission i The most basic category of attribution of criminal responsibility under international law is commission.9 Three forms of commission are distinguishable in practice: direct perpetration, indirect perpetration (i.e., through another person), and joint criminal enterprise (jce). 1 Direct Perpetration Direct perpetration is a mode of liability by which criminal responsibility is allocated to an individual who fulfills the objective and subjective elements of an offence.10 The rule is included in the constitutive instruments of international courts and tribunals.11 According to the caselaw of the icty, direct ­perpetration refers to “the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”12 The same approach to liability for direct perpetration is reflected in the caselaw of the ictr,13 as well as the icc.14 2 Indirect Perpetration Modalities of liability for commission include where conduct is carried out by joint perpetration, or co-​perpetration, reflecting the practical reality that

9 10

See, e.g., Cassese et al., op. cit. 161–​179. Cf. Tom Gal, Direct Commission, in Jérôme de Hemptinne et al. [Eds.], Modes of Liability in International Criminal Law 19–​21, 23–​25 (Cambridge: cup 2019); Werle and Jessberger, op. cit. 199–​207; Ambos (2013), op. cit. 121–​123, 148; Cassese et al., op. cit. 161. 11 See imt Charter (1945), Article 6; Tokyo Charter (1946), Article 5; icty Statute (1993), Article 7(1); ictr Statute (1994), Article 6(1); Rome Statute (1998), Article 25(3)(a). 12 Tadić, it-​94-​1-​a , Judgement, para. 188 (July 15, 1999). Accord. Kvočka et al., it-​98-​30/​1-​t, Judgement, paras. 243, 250 (Nov. 2, 2001); Kordić and Čerkez, it-​95-​14/​2-​t, Judgement, para. 376 (Feb. 26, 2001); Krnojelac, it-​97-​25-​t, Judgement, para. 73 (Mar. 15, 2002) (i.e., the “ ‘principal offender’ ”); Naletilić & Martinović, it-​98-​34-​t, Judgement, para. 62 (Mar. 31, 2003); but see Stakić, it-​97-​24-​t, Judgement, para. 439 (July 31, 2003) (defining “ ‘committing’ as meaning that the accused participated, physically or otherwise directly or indirectly, in the material elements of the crime charged[.]‌”). 13 Kayishema and Ruzindana, ictr-​95-​1 -​a , Judgement, para. 187 (June 1, 2001); Gacumbtsi, ictr-​2001-​64-​t, Judgement, para. 285 (June 17, 2004); Muvunyi, ictr-​00-​55a-​t, Judgement, para. 463 (Sept. 12, 2006); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 478 (Nov. 28, 2007); Renzaho, ictr-​97-​31-​t, Judgement and Sentence, para. 739 (July 14, 2009); Kanyarukiga, ictr-​2002-​78-​t, Judgement and Sentence, para. 622 (Nov. 1, 2010). 14 See, e.g., Katanga, icc-​01/​04-​01/​07, Judgement pursuant to article 74 of the Statute, para. 1383 (Mar. 7, 2014) (referring to liability where “the person ‘commits’ the crime.”); Lubanga, icc-​01/​04-​01/​06, Judgement pursuant to Article 74 of the Statute, para. 980 (Mar. 14, 2012) (“by an individual acting by himself”).

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international crimes are frequently perpetrated by individuals acting not in isolation, but rather, with others.15 Indirect perpetration is a mode of liability that allocates responsibility for the commission of a crime by the accused through another individual.16 This mode of attribution captures the German law concept of mittelbare Täterschaft (“the perpetrator behind the perpetrator”).17 Since the icty determined that indirect perpetration is not supported in customary international law, the development of this modality has largely been limited to the icc.18 Article 25(3)(a) of the Rome Statute provides for liability where the accused “commits such a crime … jointly with another.”19 This provision has been interpreted to incorporate two modes of liability related to indirect perpetration.20 The first, a form of “direct” co-​perpetration, consists of commission through another person and arises where the accused has control over the commission of the offence (i.e., the individual who performs the objective elements of the underlying crime).21 The second, a form of “indirect” co-​perpetration, is 15 Tadić, it-​94-​1-​a , Judgement, para. 191 (July 15, 1999) (“Most of the time these crimes do not result from the criminal propensity of single individuals but … are often carried out by groups or individuals acting in pursuance of a common criminal design.”). Accord. Kristić, it-​98-​33-​t, Judgement, para. 602 (Aug. 2, 2001) (“in concert with others”); Kvočka et al., it-​98-​30/​1-​t, Judgement, para. 251 (Nov. 2, 2001) (“jointly with others”). In relation to jce, discussed infra, see Furundžija, it-​95-​17/​1-​a , Judgement, paras. 118–​119 (July 21, 2000); Krnojelac, it-​97-​25-​a , Judgement, para. 72 (Sept. 17, 2003) (contemplating co-​perpetration as non-​principal jce participation); Vasiljević, it-​98-​32-​a , Judgement, paras. 94–​102 (Feb. 25, 2004). 16 Cf. Alejandro Kiss, Indirect Commission, in de Hemptinne, op. cit. 30–​33. 17 See, e.g., Stakić, it-​97-​24-​t, Judgement, para. 439 (July 31, 2003) (defining “ ‘committing’ as meaning that the accused participated, physically or otherwise directly or indirectly,” and citing with approval the concept of indirect participation (mittelbare Täterschaft) or “the perpetrator behind the perpetrator,” in German law.). But see Seromba, ictr-​2001-​66-​a , Judgement, para. 171 (Mar. 12, 2008). 18 Stakić, it-​97–​24-​a , Judgement, para. 62 (Mar. 22, 2006). See Elies van Sliedregt and Lachezar Yanev, Co-​Perpetration Based on Joint Control over the Crime, in de Hemptinne, op. cit. 86–​90. For a discussion of “perpetration by means,” see Ambos (2008), op. cit. 752–​755. 19 Rome Statute (1998), Article 25(3)(a). 20 See Ongwen, icc-​02/​04-​01/​15, Decision on the confirmation of charges against Dominic Ongwen, paras. 38–​41 (Mar. 23, 2016). 21 See Lubanga, icc-​01/​04–​01/​06, Decision on the confirmation of charges, paras. 330–​ 332 (Jan. 29, 2007); Katanga and Chui, icc-​01/​04-​01/​07, Decision on the confirmation of charges, paras. 494–​499 (Sept. 30, 2008); Al Bashir, icc-​02/​05-​01/​09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, para. 210 (Mar. 4, 2009). Cf. van Sliedregt and Yanev, op. cit. 89–​110. Cf. Werle and Jessberger, op. cit. 207–​211; Cassese et al., op. cit. 178–​179.

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a combination of co-​perpetration and indirect perpetration that arises where at least one co-​perpetrator makes a contribution through another individual whom he or she controls; such contribution is attributed to all co-​perpetrators.22 As alluded to above, neither form of liability through co-​perpetration in the caselaw of the icc appears to be regarded as customary international law.23 The caselaw of the icc provides that each variant of this mode of attribution consists of three objective elements.24 First, co-​perpetration requires at least two persons.25 Second, co-​perpetration requires the existence of a “common plan, design, or purpose” with a critical element of criminality such that its implementation embodies sufficient risk that a crime would be committed in the normal course.26 Third, co-​perpetration requires that the accused provide a coordinated “essential” contribution to the common plan resulting in the fulfillment of the material elements of the crime at issue.27 The second variant, “indirect” co-​perpetration, requires three additional objective elements: the principal’s “control over the organization,” an organized and hierarchical apparatus of power that enables it to serve the principal to commit crimes through

22

See Katanga and Chui, icc-​01/​04-​01/​07, Decision on the confirmation of charges, paras. 500–​518 (Sept. 30, 2008); Al Bashir, icc-​02/​05-​01/​09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, paras. 209–​213 (Mar. 4, 2009); Muthaura et al., icc-​01/​09-​02/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 297 (Jan. 23, 2012). Cf. van Sliedregt and Yanev, op. cit. 110-​118; Werle and Jessberger, op. cit. 211–​213. 23 Kiss, op. cit. 48; van Sliedregt and Yanev, op. cit. 110. 24 Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, paras. 342–​348 (Jan. 29, 2007). Accord. e.g., Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, para. 350 (June 15, 2009); Gbagbo, icc-​02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, para. 230 (June 12, 2014); Katanga and Chui, icc-​01/​ 04-​01/​07, Decision on the confirmation of charges, paras. 519–​526 (Sept. 30, 2008); Ruto et al., icc-​01/​09-​01/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute, para. 292 (Jan. 23, 2012). 25 Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, para. 343 (Jan. 29, 2007); Lubanga, icc-​01/​04-​01/​06, Judgement pursuant to Article 74 of the Statute, para. 980 (Mar. 14, 2012); Lubanga, icc-​01/​04-​01/​06 A 5, Judgement on the appeal of Mr Thomas Lubanga Dyilo against his conviction, para. 445 (Dec. 1, 2014); Gbagbo, icc-​02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, para. 230 (June 12, 2014). 26 Lubanga, icc-​01/​04-​01/​06, Judgement pursuant to Article 74 of the Statute, para. 984 (Mar. 14, 2012); Lubanga, icc-​01/​04-​01/​06 A 5, Judgement on the appeal of Mr Thomas Lubanga Dyilo against his conviction, para. 446 (Dec. 1, 2014). 27 Lubanga, icc-​01/​04-​01/​06, Judgement pursuant to Article 74 of the Statute, para. 999 (Mar. 14, 2012); Gbagbo, icc-​02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, para. 230 (June 12, 2014).

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their subordinates, and that this apparatus enables the principal to secure the execution of the crime by almost automatic compliance.28 Each form of co-​perpetration requires three subjective elements.29 The first subjective element requires that the accused satisfy the subjective elements of the underlying crime for which he or she is accused.30 The second requires that the accused must be aware, and accept, that execution of the common plan would result in the material elements of such crime.31 The third requires awareness of the accused of factual circumstances enabling him to jointly control the commission of such crime with other co-​perpetrator(s).32 3 Joint Criminal Enterprise The third form of allocation of responsibility by commission under international criminal law is joint criminal enterprise (jce),33 which may be understood as a form of co-​perpetration in which “several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons.”34 Under this mode of attribution, 28

Katanga and Chui, icc-​01/​04-​01/​07, Decision on the confirmation of charges, paras. 500–​ 518 (Sept. 30, 2008); Ruto et al., icc-​01/​09-​01/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 313 (Jan. 23, 2012). 29 Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, paras. 349–​367 (Jan. 29, 2007). Accord. e.g., Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, para. 351 (June 15, 2009); Gbagbo, icc-​02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, para. 230 (June 12, 2014); Katanga and Chui, icc-​01/​ 04-​01/​07, Decision on the confirmation of charges, paras. 527–​539 (Sept. 30, 2008); Ruto et al., icc-​01/​09-​01/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute, para. 292 (Jan. 23, 2012). 30 See, e.g., Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, para. 351 (June 15, 2009) (“[T]‌he suspect must (a) fulfil the subjective elements of the crimes charged, namely intent and knowledge as required under article 30 of the Statute; (b) be aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes; and (c) be aware of the factual circumstances enabling him to control the crimes jointly with the other co-​perpetrator.”). Accord. Gbagbo, icc-​ 02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, para. 230 (June 12, 2014). 31 Id. 32 Id. But see Katanga and Chui, icc-​01/​04-​01/​07, Decision on the confirmation of charges, paras. 534–​535 (Sept. 30, 2008) (identifying circumstances in which the third element is not applicable). 33 See, e.g., Krnojelac, it-​97-​25-​a , Judgement, para. 73 (Sept. 17, 2003) (characterizing jce as a form of “commission” under Article 7(1) of icty Statute). 34 Tadić, it-​94-​1-​a , Judgement, para. 190 (July 15, 1999).

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criminal liability arises for “[w]‌hoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose.”35 Caselaw indicates three distinct forms of jce.36 The first form of jce is referred to as “basic” and consists of cases in which co-​ perpetrators, acting pursuant to a common plan, possess the same criminal intent.37 The second form of jce is referred to as “systemic” and characterized by an organized system of misconduct.38 The third form of jce is referred to as “extended” and encompasses cases involving a common plan to commit a crime under international law in which a person committing a crime, though operating beyond the common plan, commits a crime that is a natural and foreseeable consequence of the execution of the plan.39 The origin of jce as a mode of liability is typically traced to prosecutions of international crimes following the Second World War on the basis of participation in criminal plans.40 jce as a theory of attribution by commission is found in the caselaw of the icty,41 ictr,42 35 36

Id. See, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement, paras. 463–​465 (Dec. 13, 2004); Tadić, it-​94-​1-​a , Judgement, paras. 196, 202, 204 (July 15, 1999). Cf. Cassese et al., op. cit. 163–​176; Werle and Jessberger, op. cit. 200–​207; Ambos (2013), op. cit. 123–​127; Lachezar Yanev, Joint Criminal Enterprise, in de Hemptinne, op. cit. 121–​167. 37 In icty caselaw, see, e.g., Tadić, it-​94-​1-​a , Judgement, paras. 196–​201, 220 (July 15, 1999); Vasiljević, it-​98-​32-​a , Judgement, para. 97 (Feb. 25, 2004). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement, para. 463 (Dec. 13, 2004). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 465 (May 18, 2012). 38 In icty caselaw, see, e.g., Tadić, it-​94-​1-​a , Judgement, paras. 202–​203, 220 (July 15, 1999); Vasiljević, it-​98-​32-​a , Judgement, para. 98 (Feb. 25, 2004). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement, para. 464 (Dec. 13, 2004). In eccc caselaw, see Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, paras. 504–​516 (July 26, 2010). 39 In this way, this third form of jce builds upon the first form to extend liability of the accused for the crimes of “tools” or “instruments” beyond the crimes intended under the common plan. In icty caselaw, see, e.g., Tadić, it-​94-​1-​a , Judgement, paras. 204–​220 (July 15, 1999); Vasiljević, it-​98-​32-​a , Judgement, para. 99 (Feb. 25, 2004). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement, para. 465 (Dec. 13, 2004). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 466 (May 18, 2012). 40 Cf. Tadić, it-​94-​1-​a , Judgement, paras. 195–​220 (July 15, 1999); Rwamakuba, ictr-​98-​ 44-​a r72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, paras. 9–​30 (Oct. 22, 2004). 41 See, e.g., Tadić, it-​94-​1-​a , Judgement, paras. 185–​220 (July 15, 1999); Furundžija, it-​95-​17/​1-​ a, Judgement, paras. 118–​119 (July 21, 2000); Vasiljević, it-​98-​32-​t, Judgment, para. 63 (Nov. 29, 2002); Stanišić and Simatović, it-​03-​69-​a , Judgement, para. 77 (Dec. 9, 2015). 42 See, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement, paras. 463–​468 (Dec. 13, 2004); Munyakazi, ictr-​97-​36a-​a , Judgement, paras. 160–​161

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scsl,43 stl,44 and eccc.45 Of particular note, in this regard, is the oft-​quoted observation by the icty Appeals Chamber in Tadić, that “[m]‌ost of the time these crimes [under international law] do not result from the criminal propensity of single individuals but … are often carried out by groups or individuals acting in pursuance of a common criminal design.”46 jce—​at least in its first two forms—​is typically regarded as belonging to customary international law, however the analysis by which this conclusion is reached is more akin to identification of a general principle of law.47 The icc has developed a schema of co-​perpetration in some ways similar to the first two forms of jce, but distinct and unitary in form, under Article 25(3)(a) of the Rome Statute.48 The Rome Statute, at Article 25(3)(d), contemplates assisting in the commission of a crime by a group as a “residual form of accessory liability,” which may also be viewed in relation to jce.49 The objective elements for each of the three forms of jce are the same. First, jce requires a “plurality of persons.”50 Second, jce requires the existence of (Sept. 28, 2011); Bizimungu et al., ictr-​99-​50-​t, Judgement and Sentence, paras. 1905–​ 1909 (Sept. 30, 2011); Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, paras. 1433–​1440 (Feb. 2, 2012). 43 Brima et al., scsl-​04-​16-​a , Judgement, paras. 72–​80 (Mar. 3, 2008); Fofana and Kondewa, scsl-​04-​14-​t, Judgement, paras. 206–​219 (Aug. 2, 2007); Taylor, scsl-​03-​01-​t, Judgement, paras. 457–​468 (May 18, 2012). 44 stl-​11-​01/​i , Interlocutory Decision on the Applicable Law, paras. 236–​252 (Feb. 16, 2011). 45 Perreira, 34/​2003, Judgement, 19–​20 (Apr. 27, 2005); Ieng et al., 002/​19-​09-​2007-​e ccc/​ ocij (ptc38), Decision on the Appeals Against the Co-​Investigative Judges Order on Joint Criminal Enterprise (jce), paras. 51–​89 (May 20, 2010); Kaing alias Duch, 001/​18-​07-​2007/​ eccc/​t c, Judgement, paras. 504–​516 (July 26, 2010); Nuon and Khieu, 002/​19-​09-​2007/​ eccc/​t c, Case 002/​01 Judgement, paras. 690–​691 (Aug. 7, 2014). 46 Tadić, it-​94-​1-​a , Judgement, para. 191 (July 15, 1999). 47 See Tadić, it-​94-​1-​a , Judgement, paras. 220, 226 (July 15, 1999). Accord., e.g., Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1433 (Feb. 2, 2012); stl-​11-​01/​ i, Interlocutory Decision on the Applicable Law, para. 236 (Feb. 16, 2011); Taylor, scsl-​03-​ 01-​t, Judgement, para. 458 (May 18, 2012); Ieng et al., 002/​19-​09-​2007-​e ccc/​o cij (ptc38), Decision on the Appeals Against the Co-​Investigative Judges Order on Joint Criminal Enterprise (jce), paras. 54, 77 (May 20, 2010) (expressly finding the third form of jce does not belong to customary international law). Cf. Yanev, op. cit. 160–​166. 48 See discussion supra, Chapter 6.a.i.2 (Indirect Perpetration). 49 See discussion infra, Chapter 6.a.iii.2 (Assisting in Commission of a Crime by a Group). 50 In icty caselaw, see, e.g., Tadić, it-​94-​1-​a , Judgement, para. 227 (July 15, 1999); Kupreškić et al., it-​95-​16-​t, Judgement, para. 772 (Jan. 14, 2000); Vasiljević, it-​98-​32-​a , Judgement, para. 100 (Feb. 25, 2004); Brđanin, it-​99-​36-​a , Appeal Judgement, para. 430 (Apr. 3, 2007). In ictr caselaw, see, e.g., Bizimungu et al., ictr-​99-​50-​t, Judgement and Sentence, para. 1907 (Sept. 30, 2011); Munyakazi, ictr-​97-​36a-​a , Judgement, para. 160 (Sept. 28, 2011). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, paras. 457–​459 (May 18, 2012).

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a “common plan, design, or purpose” which involves or amounts to the commission of a crime under international law (or as provided under the relevant statute).51 Third, jce requires participation of the accused in the common plan involving the perpetration of such crime.52 The contribution by the accused to such crime must be “significant” but need not be “necessary or substantial” to its perpetration,53 and may consist of an act or omission.54 The subjective elements differ for each of the three forms of jce. The “basic” form requires that the accused intend to commit the crime in question and intend to participate in a common plan toward its commission.55 The “systemic” form requires that the accused have personal knowledge of the system and the intent to advance the criminal purpose of that system.56 51 In icty caselaw, see, e.g., Tadić, it-​94-​1-​a , Judgement, para. 227 (July 15, 1999); Kupreškić et al., it-​95-​16-​t, Judgement, para. 772 (Jan. 14, 2000); Vasiljević, it-​98-​32-​a , Judgement, para. 100 (Feb. 25, 2004); Brđanin, it-​99-​36-​a , Appeal Judgement, para. 430 (Apr. 3, 2007). In ictr caselaw, see, e.g., Bizimungu et al., ictr-​99-​50-​t, Judgement and Sentence, para. 1907 (Sept. 30, 2011); Munyakazi, ictr-​97-​36a-​a , Judgement, para. 160 (Sept. 28, 2011). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, paras. 457, 460 (May 18, 2012). 52 In icty caselaw, see, e.g., Tadić, it-​94-​1-​a , Judgement, para. 227 (July 15, 1999); Kupreškić et al., it-​95-​16-​t, Judgement, para. 772 (Jan. 14, 2000); Vasiljević, it-​98-​32-​a , Judgement, para. 100 (Feb. 25, 2004); Brđanin, it-​99-​36-​a , Appeal Judgement, para. 430 (Apr. 3, 2007). In ictr caselaw, see, e.g., Bizimungu et al., ictr-​99-​50-​t, Judgement and Sentence, para. 1907 (Sept. 30, 2011); Munyakazi, ictr-​97-​36a-​a , Judgement, para. 160 (Sept. 28, 2011). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, paras. 457, 461–​ 463 (May 18, 2012). 53 In icty caselaw, see, e.g., Brđanin, it-​99-​36-​a , Appeal Judgement, para. 430 (Apr. 3, 2007). Krajišnik, it-​00-​39-​a , Appeal Judgement, para. 215 (Mar. 17, 2009). In ictr caselaw, see, e.g., Gatete, ictr-​00-​61-​a , Judgement, para. 96 (Oct. 9, 2012); Ngirabatware, ictr-​99-​54-​t, Judgement and Sentence, para. 1300 (Dec. 20, 2012) (contribution must also “form a link in the chain of causation”). In scsl jurisprudence, see Taylor, scsl-​03-​01-​t, Judgement, para. 463 (May 18, 2012). 54 See, e.g., Stanišić and Župljanin, it-​08-​91-​a , Judgement, paras. 110, 732 (June 30, 2016) (Contribution to a joint criminal enterprise “by omission.”). 55 In icty caselaw, see, e.g., Popović et al., it-​05-​88-​a , Judgement, para. 1369 (Jan. 30, 2015); Brđanin, it-​99-​36-​a , Appeal Judgement, para. 435 (Apr. 3, 2007); Tadić, it-​94-​1-​ a, Judgement, para. 228 (July 15, 1999). In ictr caselaw, see, e.g., Gatete, ictr-​00-​61-​a , Judgement, para. 239 (Oct. 9, 2012); Munyakazi, ictr-​97-​36a-​a , Judgement, para. 160 (Sept. 28, 2011). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 465 (May 18, 2012). 56 See, e.g., Tadić, it-​94-​1-​a , Judgement, para. 228 (July 15, 1999). As with the mens rea for jce i, participants in jce ii must also share the requisite intent of the direct perpetrators of the charged crimes, including any specific intent: see, e.g., Krnojelac, it-​97-​25-​t, Judgement, para. 79 (Mar. 15, 2002); Nuon and Khieu, 002/​19-​09-​2007/​e ccc/​t c, Case 002/​01 Judgement, para. 694 (Aug. 7, 2014).

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The “extended” form requires the intent of the accused to participate in and advance the criminal purpose of the group and that the crime, though one not agreed to as part of the common plan, was nevertheless the natural and foreseeable consequence of the execution of the plan, and the accused freely undertook the risk of its occurrence by participating in the enterprise.57 Where the crime at issue includes a subjective element of specific intent, the accused must also have such intent.58 ii Encouragement While the foregoing category of attribution consists of modalities of principalship that may give rise to responsibility for commission of a crime, international criminal law contains various accessorial modalities of attribution which may give rise to responsibility in relation to crimes committed by others. Once such category of accessory modes of attribution of criminal responsibility under international law is encouragement. The forms of liability generally included in this category are planning, ordering, and instigating.59 While the objective element of each mode of liability within this category differs in material ways, the relevant conduct (planning, ordering, or instigating) by the accused must “substantially contribute” to the crime committed to satisfy the objective element.60 The subjective element is practically the same across 57 In icty caselaw, see, e.g., Stanišić and Župljanin, it-​08-​91-​a , Judgement, para. 958 (June 30, 2016) (“[A]‌n accused can only be held responsible for crimes pursuant to the third category of joint criminal enterprise, when the elements of the first category of joint criminal enterprise have been satisfied … [and] in addition that: (i) it was foreseeable to the accused that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by any other member of the joint criminal enterprise) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.”); Tadić, it-​94-​1-​a , Judgement, para. 228 (July 15, 1999). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​ 96-​17-​a , Judgement, para. 467 (Dec. 13, 2004). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 466 (May 18, 2012). 58 See, e.g., Kvočka et al., it-​98-​30/​1-​a , Judgement, paras. 109–​110 (Feb. 28, 2005); Bizimungu et al., ictr-​99-​50-​t, Judgement and Sentence, para. 1908 (Sept. 30, 2011). 59 See, e.g., icty Statute (1993), Article 7(1); ictr Statute (1994), Article 6(1); Rome Statute (1998), Article 25(3)(b). 60 Compare the actus reus of planning in icty caselaw, see, e.g., Galić, it-​98-​29-​t, Judgement and Opinion, para. 168 (Dec. 5, 2003); D. Milošević, it-​98-​29/​1-​a , Judgement, para. 268 (Nov. 12, 2009); Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 26 (Dec. 17, 2004); in scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, paras. 469–​470 (May 18, 2012); with the actus reus of ordering in icty jurisprudence, see, e.g., Kordić and Čerkez, it-​95-​ 14/​2-​a , Judgement, para. 28 (Dec. 17, 2004); Galić, it-​98-​29-​a, Judgement, para. 176 (Nov. 30, 2006); Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, para. 160 (May 19, 2010);

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each form of liability in this category, requiring either the intent for the crime of the principal to be carried out or, at minimum, that the accessory was aware of the substantial likelihood that the crime would be performed as a result of the objective element.61 1 Planning One accessorial mode of liability typically categorized as a form of encouragement is planning. Planning is a mode of liability that arises where an individual performs certain conduct pursuant to the commission of a crime with a degree of awareness that indicates acceptance of the crime.62 This modality allocates responsibility on the basis of conduct performed at a preparatory stage of criminal activity that is ultimately perpetrated. In effect, liability arising from planning the commission of a crime entails responsibility for a crime which is

61

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in ictr caselaw, see, e.g., Semanza, ictr-​97-​20-​a , Judgement, para. 361 (May 30, 2005); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 481 (Nov. 28, 2007); Setako, ictr-​04-​81-​ a, Judgement, para. 240 (Sept. 28, 2011); Bagosora and Nsengiyumva, ictr-​98-​41-​a , para. 277 (Dec. 14, 2011); in scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, paras. 474 (May 18, 2012); and with the actus reus of instigating in icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 27 (Dec. 17, 2004); Haradinaj et al., it-​04-​84bis-​ t, Judgement, para. 623 (Nov. 29, 2012); Stanišić and Župljanin, it-​08-​91-​t, Judgement, para. 96 (Mar. 27, 2013); in ictr caselaw, see, e.g., Karemera and Ngirumpatse, ictr-​99-​ 44-​t, Judgement and Sentence, para. 1427 (Feb. 2, 2012); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 481 (Nov. 28, 2007); Gacumbtsi, ictr-​2001-​64-​a , Judgement, para. 129 (July 7, 2006); in scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 471 (May 18, 2012). Compare the mens rea of planning in icty caselaw, see, e.g., D. Milošević, it-​98-​29/​1-​a , Judgement, para. 268 (Nov. 12, 2009); Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 31 (Dec. 17, 2004); in ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 479 (Nov. 28, 2007); in scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 469 (May 18, 2012); with the mens rea of ordering in icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 30 (Dec. 17, 2004); Blaškić, it-​95-​14-​a , Judgement, para. 42 (July 29, 2004); in ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 481 (Nov. 28, 2007); Renzaho, ictr-​97-​31-​a , Judgement, para. 315 (Apr. 1, 2011); in scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 474 (May 18, 2012); and with the mens rea of instigating in icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​ 2-​a , Judgement, para. 32 (Dec. 17, 2004); Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, para. 160 (May 19, 2010); Haradinaj et al., it-​04-​84bis-​t, Judgement, para. 623 (Nov. 29, 2012); Stanišić and Župljanin, it-​08-​91-​t, Judgement, para. 95 (Mar. 27, 2013); in ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 480 (Nov. 28, 2007); Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1427 (Feb. 2, 2012); in scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 471 (May 18, 2012). Cf. Cassese et al., op. cit. 197–​198; Jérôme de Hemptinne, Planning, in de Hemptinne, op. cit. 355–​365.

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ultimately performed by others.63 Planning as a mode of liability is generally regarded as belonging to customary international law,64 and its elements are established in the caselaw of international courts and tribunals. The objective element of planning is satisfied where an individual or individuals design the commission of a crime (both preparation and execution) and the crime is performed within those parameters by others.65 Such planning by an accused must provide a substantial contribution to the crime performed.66 The subjective element of planning is satisfied by the intent to plan the commission of a crime (i.e., the intent that a crime will be committed in the plan’s execution) or, at minimum, by an awareness of the substantial likelihood that the execution of acts or omissions planned will result in the commission of a crime.67 Put differently, either intent or knowledge satisfies the subjective element for the modality of planning, to include “acceptance of the crime,” which appears to be satisfied by a standard of dolus eventualis.68 Although planning

63

See, e.g., Bagilishema, ictr-​95-​1A-​T, Judgement, para. 30 (June 7, 2001) (“An individual who participates directly in planning to commit a crime under the Statute incurs responsibility for that crime even when it is actually committed by another person.”); Blaškić, it-​95-​14-​t, Judgement, para. 278 (Mar. 3, 2000) (“in general, a person other than the person who planned, instigated or ordered is the one who perpetrated the actus reus of the offence”). 64 See, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 469 n. 1104 (May 18, 2012). Accord., e.g., Delalić et al., it-​96-​21-​t, Judgement, paras. 320–​321 (Nov. 16, 1998). 65 In icty caselaw, see, e.g., Galić, it-​98-​29-​t, Judgement and Opinion, para. 168 (Dec. 5, 2003); D. Milošević, it-​98-​29/​1-​a , Judgement, para. 268 (Nov. 12, 2009); Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 26 (Dec. 17, 2004). In ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 479 (Nov. 28, 2007); Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1426 (Feb. 2, 2012). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, paras. 469–​470 (May 18, 2012); Brima et al., scsl-​04-​16-​a , Judgement, para. 301 (Mar. 3, 2008). 66 In icty caselaw, see, e.g., D. Milošević, it-​98-​29/​1-​a , Judgement, para. 268 (Nov. 12, 2009); Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 26 (Dec. 17, 2004). In ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 479 (Nov. 28, 2007); Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1426 (Feb. 2, 2012). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, paras. 469–​470 (May 18, 2012); Brima et al., scsl-​04-​16-​a , Judgement, para. 301 (Mar. 3, 2008). 67 In icty caselaw, see, e.g., D. Milošević, it-​98-​29/​1-​a , Judgement, para. 268 (Nov. 12, 2009); Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 31 (Dec. 17, 2004). In ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 479 (Nov. 28, 2007). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 469 (May 18, 2012). 68 See, e.g., Blaškić, it-​95-​14-​a , Judgement, para. 42 (July 29, 2004); Kordić and Čerkez, it-​ 95-​14/​2-​a , Judgement, para. 30 (Dec. 17, 2004); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 479 (Nov. 28, 2007); Ntagerura et al., ictr-​99-​46-​a , Judgement, para. 365 n. 733 (July 7, 2006); Taylor, scsl-​03-​01-​a , Judgment, para. 439 (Sept. 26, 2013).

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is not expressly included as a mode of liability under the Rome Statute, it may be captured by the “otherwise assists” language at Article 25(3)(c).69 2 Ordering A second accessorial mode of liability typically classed as a form of encouragement is ordering. Ordering is a mode of liability that arises where an individual in a position of authority orders the commission of a crime.70 The modality of ordering is generally regarded as belonging to customary international law,71 and its elements are established in the caselaw of international courts and tribunals. The objective element of ordering is satisfied where an individual in a position of authority instructs another individual to commit a crime.72 Such ordering by an accused must provide a substantial contribution to the crime performed.73 Relevant caselaw indicates that a formal, superior-​subordinate relationship between the accused and the perpetrator of the underlying crime is not required to give rise to the responsibility of the accused; the touchstone of ordering is the use of authority to have caused the perpetrator to commit the underlying crime.74 Such exercise of authority must consist of some 69

Rome Statute (1998), Article 25(3)(c). Cf. Cassese et al., op. cit. 197–​198. See also Jérôme de Hemptinne, Planning, in de Hemptinne, op. cit. 359. 70 Cf. Cassese et al., op. cit. 196–​197; Werle and Jessberger, op. cit. 214–​216; Manuel J. Ventura, Ordering, in de Hemptinne, op. cit. 284–​305. 71 See, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 474 n. 1115 (May 18, 2012); Ventura, op. cit. 304. 72 In icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 28 (Dec. 17, 2004); Galić, it-​98-​29-​a , Judgement, para. 176 (Nov. 30, 2006); Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, para. 160 (May 19, 2010). In ictr caselaw, see, e.g., Semanza, ictr-​ 97-​20-​a , Judgement, para. 361 (May 30, 2005); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 481 (Nov. 28, 2007); Setako, ictr-​04-​81-​a , Judgement, para. 240 (Sept. 28, 2011); Bagosora and Nsengiyumva, ictr-​98-​41-​a , para. 277 (Dec. 14, 2011). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 474 (May 18, 2012). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 527 (July 26, 2010). 73 Id. As such, the crime in question must be performed in order for liability to arise under this modality, except before the icc, where attempt pursuant to such order is sufficient to trigger liability: see Rome Statute (1998), Article 25(3)(b) (“Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted” (emphasis added)). See infra, n. 76. 74 In icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 28 (Dec. 17, 2004); Galić, it-​98-​29-​a , Judgement, para. 176 (Nov. 30, 2006); Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, para. 164 (May 19, 2010). In ictr caselaw, see e.g., Semanza, ictr-​ 97-​20-​a , Judgement, para. 361–​363 (May 30, 2005); Setako, ictr-​04-​81-​a , Judgement, para. 240 (Sept. 28, 2011). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 475 (May 18, 2012).

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affirmative act by the accused, and is not satisfied by an omission on the part of the accused, though such act need not be explicit.75 The subjective element of ordering is satisfied where the individual issuing the order intends for a crime to be carried out or, at minimum, is aware of the substantial likelihood that a crime would be carried out.76 Put differently, either intent or knowledge satisfies the subjective element for the modality of ordering, to include “acceptance of the crime,” which appears to be satisfied by a standard of dolus eventualis.77 Ordering is included as a mode of liability under Article 25(3)(b) of the Rome Statute, which operates to allocate responsibility for completed crimes as well as attempts.78 Notwithstanding this distinction, the same objective and subjective elements identified above have been articulated by the icc in reference to tribunal caselaw.79 The icc has, however, adopted a subjective standard requiring that the accused at least be aware that the underlying crime “would be committed in the ordinary course of events,” which is not satisfied by a standard lower than dolus directus in the second degree.80 75 In icty caselaw, see, e.g., Haradinaj et al., it-​04-​84bis-​t, Judgement, para. 624 (Nov. 29, 2012); Galić, it-​98-​29-​a , Judgement, para. 176 (Nov. 30, 2006). In ictr caselaw, see, e.g., Bagosora and Nsengiyumva, ictr-​98-​41-​a , para. 277 (Dec. 14, 2011). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 476 (May 18, 2012). 76 In icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, paras. 29–​30 (Dec. 17, 2004); Blaškić, it-​95-​14-​a , Judgement, para. 42 (July 29, 2004). In ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 481 (Nov. 28, 2007); Renhazo, ictr-​ 97-​31-​a , Judgement, para. 315 (Apr. 1, 2011). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 474 (May 18, 2012). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​ 07-​2007/​e ccc/​t c, Judgement, para. 528 (July 26, 2010). 77 See, e.g., Blaškić, it-​95-​14-​a , Judgement, para. 42 (Jul. 29, 2004); Kordić and Čerkez, it-​95-​ 14/​2-​a , Judgement, para. 30 (Dec. 17, 2004); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 481 (Nov. 28, 2007); Ntagerura et al., ictr-​99-​46-​a , para. 365 n. 733 (July 7, 2006). 78 Rome Statute (1998), Article 25(3)(b) (“Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted”). Accord., e.g., Gbagbo, icc-​02/​11-​01/​ 11, Decision on the confirmation of charges against Laurent Gbagbo, para. 242 (June 12, 2014); Ntaganda, icc-​01/​04-​02/​06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, para. 145 (June 9, 2014). 79 See, e.g., Mudacumura, icc-​01/​04-​01/​12, Decision on the Prosecutor’s Application under Article 58, para. 63 (Jul. 13, 2012). 80 Lubanga, icc-​01/​04-​01/​06 A 5, Judgement on the appeal of Mr Thomas Lubanga Dyilo against his conviction, para. 447 (Dec. 1, 2014) (articulating this standard of foreseeability as “virtual certainty” (emphasis in original) in contrast to “the notion of ‘risk’.”). Accord. e.g., Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, paras. 362–​ 363 (June 15, 2009). Cf. Ventura, op. cit. 302–​303.

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3 Instigating A final accessorial mode of liability typically regarded as a form of encouragement is instigating. Instigating is a mode of liability that arises where one individual prompts another individual to perform a crime with a degree of awareness that indicates acceptance of the commission of that crime.81 The modality of instigating is generally regarded as belonging to customary international law and its elements are established in the caselaw of international courts and tribunals.82 The objective element of instigating is satisfied where the accused prompts another individual to commit a crime.83 The objective element may be satisfied through either an act or omission.84 As with the other modes of accessory liability in this category, such instigating by an accused must provide a substantial contribution to the crime performed.85 Although icc caselaw refers to a “direct effect” standard, there does not appear to be a practical difference between this and the substantial contribution standard.86 The subjective element of instigating is satisfied by the intent to instigate the commission of a crime or, at minimum, by an awareness of the substantial likelihood that the crime in question would be carried out as a result of the instigation.87 This element appears to be satisfied by a dolus eventualis 81

Cf. Cassese et al., op. cit. 197; Werle and Jessberger, op. cit. 213–​214; Antonio Coco, Instigation, in de Hemptinne, op. cit. 257–​282. 82 See, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 471 n. 1108 (May 18, 2012). Cf. Werle and Jessberger, op. cit. 213–​214; Coco, op. cit. 280–​281. 83 In icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 27 (Dec. 17, 2004); Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, para. 157 (May 19, 2010). In ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 480 (Nov. 28, 2007); Ndindabahizi, ictr-​01-​71-​a , Judgement, para. 117 (Jan. 16, 2007). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 471 (May 18, 2012). 84 In icty caselaw, see, e.g., Blaškić, it-​95-​14-​t, Judgement, para. 280 (Mar. 3, 2000); Milutinović et al., it-​05-​87-​t, Judgement, Vol. 1, para. 83 (Feb. 26, 2009); Tolimir, it-​05-​ 88/​2-​t, Judgement, para. 901 (Dec. 12, 2012). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 472 (May 18, 2012). 85 In icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 27 (Dec. 17, 2004); Haradinaj et al., it-​04-​84bis-​t, Judgement, para. 623 (Nov. 29, 2012); Stanišić and Župljanin, it-​08-​91-​t, Judgement, para. 96 (Mar. 27, 2013); see also Šešelj, mict-​16-​99-​a , Judgement, para. 153 (Apr. 11, 2018). In ictr caselaw, see, e.g., Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1427 (Feb. 2, 2012); Nahimana et al., ictr-​ 99-​52-​a , Judgement, para. 480 (Nov. 28, 2007); Gacumbtsi, ictr-​2001-​64-​a , Judgement, para. 129 (July 7, 2006). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 473 (May 18, 2012). 86 Cf. Coco, op. cit. 270. 87 In icty caselaw, see, e.g., Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 32 (Dec. 17, 2004); Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, para. 68 (May 19, 2010); Haradinaj

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standard.88 In effect, then, this subjective element consists of both intent on the part of the instigator vis-​à-​vis their own conduct and knowledge of its effect with respect to the perpetrator and crime in question. The instigator must also be aware of the essential elements of the crime in question.89 Instigating as a mode of liability is effectively included at Article 25(3)(b) of the Rome Statute, which contemplates liability for soliciting or inducing the commission, or attempted commission, of a covered crime.90 The icc has defined these elements by reference to tribunal caselaw, though it has adopted different terminology.91 The objective elements of the modality as applied by the icc are functionally equivalent.92 The icc has adopted a subjective standard requiring that the instigator at least be aware that the crime at issue “would be committed in the ordinary course of events,” which is not satisfied by a standard lower than dolus directus in the second degree.93

88 89

90

91 92 93

et al., it-​04-​84bis-​t, Judgement, para. 623 (Nov. 29, 2012); Stanišić and Župljanin, it-​08-​ 91-​t, Judgement, para. 95 (Mar. 27, 2013). In ictr caselaw, see, e.g., Nahimana et al., ictr-​ 99-​52-​a , Judgement, para. 480 (Nov. 28, 2007); Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1427 (Feb. 2, 2012). In scsl caselaw, see Taylor, scsl-​03-​01-​ t, Judgement, para. 471 (May 18, 2012). See, e.g., Orić, it-​03-​68-​t, Judgement, para. 279 n. 773 (June 30, 2006). See, e.g., id. para. 279 (explaining that this standard “does not require the instigator precisely to foresee by whom and under which circumstances the principal crime will be committed nor that it would exclude indirect inducement, the instigator must at least be aware of the type and the essential elements of the crime to be committed.”); Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence, para. 599 (Jan. 22, 2003). Rome Statute (1998), Article 25(3)(b) (“Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted”). Accord., e.g., Gbagbo, icc-​02/​11-​01/​ 11, Decision on the confirmation of charges against Laurent Gbagbo, para. 243 (June 12, 2014) (“The Chamber is of the view that ‘ordering’, ‘soliciting’ and ‘inducing’ in essence fall into a broader category of ‘instigating’ or ‘prompting another person to commit a crime’, in the sense that they refer to a conduct by which a person is influenced by another to commit a crime.”). See, e.g., Ntaganda, icc-​01/​04-​02/​06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, n. 625 (June 9, 2014). See supra, n. 90. See, e.g., Gbagbo, icc-​02/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, para. 242 (June 12, 2014); Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, para. 82 (Oct. 19, 2016). This standard does “not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention)”: Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, paras. 358–​360 (June 15, 2009). Accord. Ntaganda, icc-​01/​04-​02/​06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco

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Assistance iii A second category of accessorial modalities of attribution, which may give rise to responsibility in relation to crimes committed by others, is assistance. Assistance is a category of accessory modes of attribution of criminal responsibility under international law. The forms of liability generally included in this category are aiding and abetting,94 though the Rome Statute also includes an associated form of residual accessory liability.95 While aiding and abetting as a mode of liability is generally regarded as belonging to customary international law,96 residual accessory liability under the Rome Statute is not regarded as having a separate basis in international law.97 1 Aiding and Abetting The quintessential mode of liability in international criminal law belonging to the category of assistance is aiding and abetting. Aiding and abetting is a mode of liability applicable where an individual’s acts or omissions render that individual complicit in the commission of a crime by another.98 Although “aiding” and “abetting” are technically distinct forms of liability within this mode of attribution, the two are generally treated together as a single form of liability.99

Ntaganda, n. 625 (June 9, 2014). For discussion of the icc standard as higher than that of the ad hoc tribunals, see Coco, op. cit. 277. 94 See, e.g., icty Statute (1993), Article 7(1); ictr Statute, Article 6(1); Rome Statute, Article 25(3)(c) (“providing the means for its commission”). 95 Rome Statute (1998), Article 25(3)(d). 96 In icty caselaw, see, e.g., Furundžija, it-​95-​17/​1-​t, Judgement, paras. 190–​249 (Dec. 10, 1998). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 482 n. 1135 (May 18, 2012); Taylor, scsl-​03-​01-​a , Judgment, para. 362 (Sept. 26, 2013). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 475 (July 26, 2010). 97 See, e.g., Werle and Jessberger, op. cit. 219; Marjolein Cupido, Group Acting with a Common Purpose, in de Hemptinne, op. cit. 332. 98 Cf. Werle and Jessberger, op. cit. 216–​219; Cassese et al., op. cit. 193–​196; Ambos (2013), op. cit. 127–​132; Manuel J. Ventura, Aiding and Abetting, in de Hemptinne, op. cit. 173–​255. 99 See, e.g., Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence, para. 596 (Jan. 22, 2003) (“ ‘Aiding and abetting’ relate to discrete legal concepts. ‘Aiding’ signifies providing assistance to another in the commission of a crime. ‘Abetting’ signifies facilitating, encouraging, advising or instigating the commission of a crime. Legal usage, including that in the Statute and case law of the ictr and the icty, often inter-​links the two terms and treats them as a broad singular legal concept.” (internal citation omitted)). Accord, e.g., Semanza, ictr-​97-​20-​t, Judgement and Sentence, para. 384 (May 15, 2003) (noting aiding and abetting “are frequently employed together as a single broad legal concept.”); Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 533 (July 26, 2010); Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, para. 87 (Oct. 19, 2016).

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The objective element of aiding and abetting is satisfied where the accused provides “practical assistance, encouragement, or moral support” for the commission of a crime.100 This element may be established by a broad range of conduct, including both acts and omissions.101 Such conduct by the accused may occur before, during, or after the commission of the underlying crime by its perpetrator.102 The caselaw of international courts and tribunals has further defined other parameters of aiding and abetting liability, including that the accused need not be present during the perpetration of the underlying crime, and conversely, that mere presence can satisfy the objective element.103 Specific direction is not a requirement of the objective element of aiding and abetting.104 For a time, however, the icty had contemplated specific direction to be an objective element of aiding and abetting, most notably in Perišić,105 a requirement later rejected in the caselaw of international courts and tribunals.106 As with the modes of accessory liability falling within the category of encouragement, the practical assistance, encouragement, or moral support by the accused must have had a substantial effect on the commission of the

100 In icty caselaw, see, e.g., Blaškić, it-​95-​14-​a , Judgement, para. 46 (Jul. 29, 2004); Vasiljević, it-​98-​32-​a , Judgement, para. 102 (Feb. 25, 2004); Mrkšić and Šljivančanin, it-​ 95-​13/​1-​a , Judgement, para. 49 (May 5, 2009). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , Judgement, para. 530 (Dec. 13, 2004); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 482 (Nov. 28, 2007); Ntawukulilyayo, ictr-​05-​82-​a , Judgement, para. 214 (Dec. 14, 2011). In scsl caselaw, see Taylor, scsl-​03-​01-​ t, Judgement, para. 484 (May 18, 2012); Taylor, scsl-​03-​01-​a , Judgment, para. 362 (Sept. 26, 2013). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 533 (July 26, 2010). In icc caselaw, see, e.g., Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, paras. 88–​89 (Oct. 19, 2016). 101 In icty caselaw, see, e.g., Blaškić, it-​95-​14-​a , Judgement, para. 47 (Jul. 29, 2004); Mrkšić and Šljivančanin, it-​95-​13/​1-​a , Judgement, paras. 49, 200 (May 5, 2009). In ictr caselaw, see, e.g., Ntawukulilyayo, ictr-​05-​82-​a , Judgement, para. 214 (Dec. 14, 2011); Karemera and Ngirumpatse, ictr-​99-​44-​t, Judgement and Sentence, para. 1431 (Feb. 2, 2012). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, paras. 483, 487 (May 18, 2012). 102 In icty caselaw, see, e.g., Simić, it-​95-​9-​a , Judgement, para. 85 (Nov. 28, 2006). In ictr caselaw, see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 482 (Nov. 28, 2007). In scsl caselaw, see, e.g., Taylor, scsl-​03-​01-​t, Judgement, para. 484 (May 18, 2012). 103 See supra, n. 98. In icc caselaw, see, e.g., Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, para. 89 (Oct. 19, 2016). 104 Taylor, scsl-​03-​01-​a , Judgment, paras. 474–​475 (Sept. 26, 2013); Šianović et al., it-​05-​87-​a , Judgement, para. 1650 (Jan. 23, 2014). Cf. Ventura, op. cit. 191–​201. 105 Perišić, it-​04–​81-​a , Judgment, para. 36 (Feb. 28, 2013). 106 Taylor, scsl-​03-​01-​a , Judgment, paras. 474–​475 (Sept. 26, 2013); Šianović et al., it-​05-​87-​a , Judgement, para. 1650 (Jan. 23, 2014). See discussion infra, Chapter 6.b (Conclusions).

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underlying crime by its perpetrator.107 This substantial effect does not, however, require a causal relation such that the practical assistance, encouragement, or moral support by the accused is a condition precedent to the c­ ommission of the underlying crime.108 The subjective element of aiding and abetting is satisfied where the accused acted intentionally, and with knowledge or awareness that their conduct would lend assistance, encouragement, or moral support to the perpetrator of the underlying crime.109 While a number of international courts and tribunals have accepted a recklessness standard as satisfying the subjective element,110 this approach has been subject to criticism.111 The accused must also

107 In icty caselaw, see, e.g., Blaškić, it-​95-​14-​a , Judgement, paras. 45–​46 (Jul. 29, 2004); Vasiljević, it-​98-​32-​a , Judgement, para. 102 (Feb. 25, 2004); Mrkšić and Šljivančanin, it-​95-​ 13/​1-​a , Judgement, paras. 49, 200 (May 5, 2009). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , para. 530 (Dec. 13, 2004); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 482 (Nov. 28, 2007); Ntawukulilyayo, ictr-​05-​82-​a , Judgement, para. 214 (Dec. 14, 2011). In scsl caselaw, see Taylor, scsl-​03-​01-​a , Judgement, para. 362 (Sept. 26, 2013); Taylor, scsl-​03-​01-​t, Judgement, para. 485 (May 18, 2012). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 533 (July 26, 2010). Note that, in icc caselaw, the threshold that such effect must satisfy is subject to debate: see Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, paras. 90–​93 (Oct. 19, 2016). Cf. Ventura, op. cit. 208–​212. 108 In icty caselaw, see, e.g., Blaškić, it-​95-​14-​a , Judgement, para. 46 (Jul. 29, 2004); Mrkšić and Šljivančanin, it-​95-​13/​1-​a , Judgement, para. 200 (May 5, 2009). In ictr caselaw, see, e.g., Ndahimana, ictr-​01-​68-​a , Judgement, para. 149 (Dec. 16, 2013); Kayishema and Ruzindana, ictr-​95-​1-​a , Judgement, para. 201 (June 1, 2001). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 484 (May 18, 2012). Note that “specific direction” is also not required to engage aiding and abetting liability: see, e.g., id.; Mrkšić and Šljivančanin, it-​95-​13/​1-​a , Judgement, para. 159 (May 5, 2009). 109 In icty caselaw, see, e.g., Blaškić, it-​95-​14-​a , Judgement, paras. 45–​46, 49 (Jul. 29, 2004); Vasiljević, it-​98-​32-​a , Judgement, para. 102 (Feb. 25, 2004); Mrkšić and Šljivančanin, it-​95-​ 13/​1-​a , Judgement, paras. 49, 159 (May 5, 2009). In ictr caselaw, see, e.g., Ntakirutimana and Ntakirutimana, ictr-​96-​10-​a and ictr-​96-​17-​a , para. 530 (Dec. 13, 2004); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 482 (Nov. 28, 2007); Ntawukulilyayo, ictr-​05-​82-​a , Judgement, para. 222 (Dec. 14, 2011) (referring to knowledge). In scsl caselaw, see, e.g., Brima et al., scsl-​04-​16-​a , Judgement, paras. 242–​245 (Mar. 3, 2008); Taylor, scsl-​03-​01-​a , Judgement, paras. 403–​404 (Sept. 26, 2013); Taylor, scsl-​03-​01-​t, Judgement, para. 487 (May 18, 2012). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 535 (July 26, 2010). For a description of the “elevated” mens rea standard in icc caselaw, see, e.g., Bemba et al., icc-​0 1/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, paras. 97–​98 (Oct. 19, 2016). Cf. Ventura, op. cit. 213–​218. 110 Taylor, scsl-​03-​01-​a , Judgement, paras. 414, 438, 533 (Sept. 26, 2013). Accord. stl-​1 1-​0 1/​i , Interlocutory Decision on the Applicable Law, para. 227 (Feb. 16, 2011). See also Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 535 (July 26, 2010). 111 Ventura, op. cit. 224–​228.

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have “awareness of the crime,” that is, awareness of the essential elements of the crime committed by the perpetrator, though it is not necessary for the accused to share the mens rea of the perpetrator of the underlying crime.112 Such knowledge includes that of the dolus specialis of the perpetrator where the underlying crime includes specific intent as an element.113 Aiding and abetting as a mode of liability is reflected in Article 25(3)(c) of the Rome Statute.114 One notable difference in the operation of this modality at the icc is that, although aiding and abetting before the ad hoc tribunals requires the completion of the crime in question,115 Article 25(3)(c) does not require such completion; attempted commission of such crime is sufficient to give rise to aiding and abetting liability.116 Another important difference in aiding and abetting as defined in Article 25(3)(c) is its inclusion of a purposive mens rea requirement, such that the material element of the crime is performed “[f]‌or the purpose of facilitating the commission of such a crime.”117 It appears to be generally agreed that this element imposes a higher mens rea standard than that applied by the ad hoc tribunals and, as such, reflected in customary international law.118 Limited practice of the icc suggests that this 1 12 Id. 113 In icty caselaw, see, e.g., Simić, it-​95-​9-​a , Judgement, para. 86 (Nov. 28, 2006); Blagojević and Jokić, it-​02-​60-​a , Judgement, para. 127 (May 9, 2007). In ictr caselaw, see, e.g., Ntawukulilyayo, ictr-​05-​82-​a , Judgement, para. 222 (Dec. 14, 2011); Seromba, ictr-​ 2001-​66-​a , Judgement, para. 56 (Mar. 12, 2008). In scsl caselaw, see Taylor, scsl-​03-​01-​t, Judgement, para. 487 (May 18, 2012). In eccc caselaw, see, e.g., Kaing alias Duch, 001/​18-​ 07-​2007/​e ccc/​t c, Judgement, para. 535 (July 26, 2010). 114 Rome Statute (1998), Article 25(3)(c) (“For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”). See, e.g., Mbarushimana, icc-​ 01/​41-​01/​10, Decision on the confirmation of charges, paras. 281–​283 (Dec. 16, 2011). 115 See, e.g., Aleksovski, it-​95-​14/​1-​a , Judgement, para. 165 (Mar. 24, 2000); Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence, para. 597 (Jan. 22, 2003); Brima et al., scsl-​04-​ 16-​t, Judgement, para. 775 (June 20, 2007); Kaing alias Duch, 001/​18-​07-​2007/​e ccc/​t c, Judgement, para. 534 (July 26, 2010). 116 Rome Statute (1998), Article 25(3)(c) (“its commission or its attempted commission” (emphasis added)). 117 Rome Statute (1998), Article 25(3)(c). 118 Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, paras. 97–​98 (Oct. 19, 2016) (Describing Article 25(3)(c) as “introduce[ing] a higher subjective mental element [which] means that the accessory must have lent his or her assistance with the aim of facilitating the offence.”); Mbarushimana, icc-​01/​41-​01/​10, Decision on the confirmation of charges, para. 274 (Dec. 16, 2011) (“The Chamber notes that, unlike the jurisprudence of the ad hoc tribunals, article 25(3)(c) of the Statute requires that the person act with the purpose to facilitate the crime; knowledge is not enough for responsibility under this article.” (internal citation omitted)). Cf. Ventura, op. cit. 213-​217; Robert

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purposive element constitutes an element of mens rea additional to the knowledge element that such an accessory must have in relation to the crime of the principal.119 There is a close relation between aiding and abetting as a mode of liability and the concept of complicity arising specifically in the context of genocide.120 Complicity, which appears in the substantive provisions of the icty and ictr statutes pertaining to genocide, seems to have been incorporated by reference to the concept as it arises in the Genocide Convention.121 The role of complicity in the context of genocide vis-​à-​vis aiding and abetting as a mode of liability has generated some debate, though it appears in practice that the two concepts largely overlap to the extent that complicity arises in the context of modes of liability in international criminal law.122 Complication in this regard may be a result of incorporation of a prohibition on State conduct contained in Cryer et al., an Introduction to International Criminal Law and Procedure 374 (Cambridge: 3d ed. cup 2014) (describing the purposive element as “a higher requirement [than] the ‘knowledge’ required by the icty and ictr.”); Ambos (2008), op. cit. 760 (“This concept introduces a subjective threshold which goes beyond the ordinary mens rea requirement within the meaning of article 30.”); van Sliedregt, op. cit. 128. 119 Bemba et al., icc-​01/​05-​01/​13, Judgement pursuant to Article 74 of the Statute, paras. 97–​ 98 (Oct. 19, 2016) (Describing “the twofold intent of the accessory (viz. firstly, the principal offence and, secondly, the accessory’s own conduct),” and clarifying “that this elevated subjective standard relates to the accessory’s facilitation, not the principal offence.”). There remains some academic debate on this point: cf. Ventura, op. cit. 213–​217. 120 Genocide Convention (1948), Article iii(e); icty Statute (1993), Article 4(3)(e); ictr Statute (1994), Article 2(3)(e). See, e.g., Semanza, ictr-​97-​20-​t, Judgement and Sentence, para. 395 (May 15, 2003) (defining complicity to commit genocide as “[a]‌ll acts of assistance or encouragement that have substantially contributed to, or have had a substantial effect on, the completion of the crime of genocide.”). 121 Compare icty Statute (1993), Article 4(2)-​4(3), and ictr Statute (1994), Article 2(2)-​2(3), with Genocide Convention (1948), Articles ii-​i ii. Cf. Ventura, op. cit. 238–​248. 122 See, e.g., Semanza, ictr-​97-​20-​t, Judgement and Sentence, paras. 394–​395 (May 15, 2003) (noting there is “no material distinction” between complicity and aiding and abetting (citing Akayesu, ictr-​96-​4 -​t, Judgement, para. 546 (Sept. 2, 1998))); Kristić, it-​98-​ 33-​t, Judgement, para. 640 (Aug. 2, 2001). Further, the subjective element for complicity is often regarded to be the same as aiding and abetting and other forms of accomplice liability, discussed immediately supra, to include knowledge of specific intent: see Semanza, ictr-​97-​20-​a , Judgement, paras. 316, 369 (May 20, 2005); Semanza, ictr-​97-​20-​ t, Judgement, para. 395 (May 14, 2003); Musema, ictr-​96-​13-​t, Judgement and Sentence, paras. 180–​181 (Jan. 27, 2000); Akayesu, ictr-​96-​4-​t, Judgement, para. 546 (Sept. 2, 1998). See similarly Nahimana et al., ictr-​99-​52-​a , Judgement, para. 482 n. 1165 (Nov. 28, 2007). For a contrary view, that complicity constitutes a broader form of liability, see Kristić, it-​98-​33-​a , Judgement, para. 139 (Apr. 19, 2004); Ntakirutimana and Ntakirutimana, ictr-​ 96-​10-​a and ictr-​96-​17-​a , Judgement, para. 371 (Dec. 13, 2004) (citing Kristić). Cf. van Sliedregt, op. cit. 171–​179.

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the Genocide Convention into provisions of international criminal law. While practice suggests that such questions may be unlikely persist in the context of individual criminal responsibility,123 where aiding and abetting has generally served as the relevant mode of liability with respect to genocide, this practice does not impact the function of complicity for purposes of State responsibility in relation to obligations arising under the Genocide Convention.124 2 Assisting in Commission of a Crime by a Group A distinct mode of accessorial liability typically regarded as belonging to the category of assistance consists of assisting in the commission of a crime by a group. Assisting in the commission of a crime by a group is a “residual form of accessory liability” created by Article 25(3)(d) of the Rome Statute.125 As a residual mode of liability, included alongside other modalities at Article 25(3), this modality is described as a “catchall form of liability” that would only be expected to be applied where other modalities at Article 25(3)(a)-​(c) of the Rome Statute are unavailable.126 This modality is applicable to a person who “[i]‌n any other way contributes to the commission or attempted commission of [a crime within the jurisdiction of the court] by a group of persons acting with a common purpose.”127 Aspects of this form of liability can be viewed in relation to jce in terms of its allocation of liability for crimes committed by groups pursuant to a common plan.128 As noted above, residual accessory liability under the Rome Statute is not regarded as customary international law.129 123 Ventura, op. cit. 238–​248; Miles Jackson, Complicity in International Law 96–​97 (Oxford: oup 2015). 124 See discussion supra, Chapter. 5.b (Sources of Law). See, e.g., Application of the Genocide Convention (2007), paras. 418–​424. Cf. ilc Articles on State Responsibility, Article 16 (“Aid or assistance in the commission of an internationally wrongful act”). 125 Rome Statute (1998), Article 25(3)(d). See Lubanga, icc-​01/​04-​01/​06, Decision on the confirmation of charges, para. 337 (Jan. 29, 2007) (describing this form of liability as “a residual form of accessory liability”); see also Katanga, icc-​01/​04-​01/​07, Judgement pursuant to article 74 of the Statute, paras. 1616–​1642 (Mar. 7, 2014). Cf. Cassese et al., op. cit. 198–​199; Werle and Jessberger, op. cit. 219–​220; Cupido, op. cit. 309–​334. 126 See, e.g., Katanga, icc-​01/​04-​01/​07, Judgement Pursuant to article 74 of the Statute, para. 1618 (Mar. 7, 2014); Ruto et al., icc-​01/​09-​01/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 354 (Jan. 23, 2012) (referring to “a residual mode of accessorial liability, which is triggered only when subparagraphs (a)-​(c) are not satisfied.”). 127 Rome Statute (1998), Article 25(3)(d). 128 Cf. Mbarushimana, icc-​01/​41-​01/​10, Decision on the confirmation of charges, para. 282 (Dec. 16, 2011). 129 See, e.g., Werle and Jessberger, op. cit. 219; Cupido, op. cit. 332.

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The objective element of assisting in the commission of a crime by a group is the commission or attempted commission of a crime by a group acting pursuant to a common purpose.130 As with other modes of accessory liability, the contribution of the accused must be substantial such that it has bearing on the commission of the crime or the manner of its commission.131 The subjective element of assisting in the commission of a crime by a group requires that the contribution of the accused to the group must be intentional and made with the knowledge that such conduct contributes to the common purpose of the group.132 In addition, one of two alternatives expressly provided at Article 25(3)(d) must be satisfied. In particular, the contribution must either be “made with the aim of furthering the criminal activity or criminal purpose of the group,” or “in knowledge of the intention of the group to commit the crime.”133 iv Superior Responsibility A form of responsibility distinct from the categories of principal and accessorial liability identified above is superior responsibility. Liability for a superior arises in relation to the crimes of their subordinates where the superior has failed to perform their duties as a superior to “exercise control” over their subordinates.134 As such, superior responsibility is a form of liability arising from an omission, which omission can only arise where international law imposes an obligation in the first instance.135 Various sources of such obligations have 130 Rome Statute (1998), Article 25(3)(d). Cf. Katanga, icc-​01/​04-​01/​07, Judgement Pursuant to article 74 of the Statute, paras. 1624–​1631 (Mar. 7, 2014). 131 See, e.g., Katanga, icc-​01/​04-​01/​07, Judgement Pursuant to article 74 of the Statute, paras. 1632–​1633 (Mar. 7, 2014); Mbarushimana, icc-​01/​41-​01/​10, Decision on the confirmation of charges, paras. 276–​277 (Dec. 16, 2011). 132 See Mbarushimana, icc-​01/​41-​01/​10, Decision on the confirmation of charges, para. 288 (Dec. 16, 2011); Katanga, icc-​01/​04-​01/​07, Judgement Pursuant to article 74 of the Statute, paras. 1637–​1639 (Mar. 7, 2014). 133 Rome Statute (1998), Article 25(3)(d). Cf. Mbarushimana, icc-​01/​41-​01/​10, Decision on the confirmation of charges, para. 289 (Dec. 16, 2011); Ruto et al., icc-​01/​09-​01/​11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 351 (Jan. 23, 2012). 134 Cf. Werle and Jessberger, op. cit. 221–​234; Ambos (2013), op. cit. 180–​232; Miles Jackson, Command Responsibility, in de Hemptinne, op. cit. 409–​430; Guénaël Mettraux, The Law of Command Responsibility (Oxford: oup 2009); Ilias Bantekas, The Contemporary Law of Superior Responsibility, 93(3) ajil 573–​595 (1999). 135 See Simić et al., it-​95-​9-​t, Judgement, para. 137 (Oct. 17, 2003) (referring to “a culpable omission … where it is established that he had a duty to act[.]‌”); Blagojević and Jokić, it-​ 02-​60-​t, Judgement, para. 694 (Jan. 17, 2005) (“It is commonly understood that individual criminal responsibility will attach for “committing” a crime where it is established that

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been identified to include customary international law,136 treaty-​based international humanitarian law,137 and a superior’s position of authority.138 At base, the test for superior responsibility is predicated upon the existence of an obligation to act as a condition precedent, and it is the failure to perform such obligation that may give rise to the responsibility of a superior in relation to the crimes of their subordinates.139 Superior responsibility may arise in relation to all of the modes of attribution, both principal and accessory forms of liability, under international criminal law.140 Superior responsibility does not operate to attribute the underlying crimes of subordinates to their superiors as such,141 but rather, is characterized as a distinct basis of responsibility often described

the accused … personally omitted to act when required to do so under law.”); Ntagerura et al., ictr-​99-​46-​a , para. 334 (July 7, 2006) (“It is not disputed … that any criminal responsibility for omissions requires an obligation to act”); Brima et al., scsl-​04-​16-​t, Judgement, para. 783 (June 20, 2007) (“a superior is responsible not for the principal crimes, but rather for what has been described as a ‘dereliction’ or ‘neglect of duty’ to prevent or punish the perpetrators of serious crimes.”). Cf. Ambos (2013), op. cit. 191. 136 See, e.g., Halilović, it-​01-​48-​a , Judgement, para. 63 (Oct. 16, 2007). 137 See, e.g., Rutaganira, ictr-​95-​1c-​t, Judgement and Sentence, paras. 78–​79 (Mar. 14, 2005); Orić, it-​03-​68-​t, Judgement, para. 304 (June 30, 2006). Because States are the subjects of legal obligations under international humanitarian law instruments, and accordingly individuals are not subject to obligations under relevant international agreements, derivation of obligations of superiors from treaty-​based sources presents complications. 138 Karadžić, it-​95-​5/​18-​t, Public Redacted Version of Judgement Issued on 24 March 2016, para. 3493 (Mar. 24, 2016) (“The Chamber finds that in light of his position of authority over [his subordinates], the Accused had a legal duty to prevent and punish crimes committed by them.”). 139 As described in further detail below, superior responsibility does not require an explicit finding that the accused had a duty to act. Rather, the requisite obligation may be viewed as a product of the superior-​subordinate relationship and a function of the effective control exercised by the superior over the subordinate. 140 See, e.g., Blagojević and Jokić, it-​02-​60-​a , Judgement, para. 280 (May 9, 2007); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 484–​486 (Nov. 28, 2007); Brima et al., scsl-​04-​16-​t, Judgement, para. 783 (June 20, 2007). But see Bemba, icc-​0 1/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, para. 175 n. 389 (Mar. 21, 2016) (“noting” this practice of ad hoc tribunals). 141 See, e.g., Krnojelac, it-​97-​25-​a , Judgement, para. 171 (Sept. 17, 2003) (“It cannot be overemphasised that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control.”); Aleksovski, it-​95-​14/​1-​t, Judgement, para. 72 (June 25, 1999) (“superior responsibility … must not be seen as responsibility for the act of another person. Superior responsibility derives directly from the failure of the person against whom the complaint is directed to honour an obligation.”). Cf. Chantal Meloni, Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?, 5(3) jicj 619–​637 (2007).

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to be sui generis.142 It bears noting that this proposition is not unproblematic and remains subject to disagreement, particularly as it relates to conformity with the principle of culpability underlying modes of liability in international criminal law.143 The responsibility of superiors under international law in relation to the crimes of their subordinates has its origins in the prosecution of military and civilian leaders following the Second World War.144 Superior responsibility is provided for in the statutes of contemporary international courts and tribunals,145 and is well established in the caselaw of those bodies.146 Superior responsibility is generally regarded as belonging to customary international law.147 The elements of superior responsibility are threefold: (1) A superior-​subordinate relationship existed between the accused and the individual for whose criminal conduct he or she is alleged to be responsible; (2) The accused knew or had reason to know that the criminal conduct in question was about to be, was being, or had been committed by one or more subordinates; and (3) The accused failed to take the necessary and reasonable measures to prevent or punish the subordinate criminal conduct in question.148 142 See, e.g., Bemba, icc-​01/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, paras. 170–​174 (Mar. 21, 2016); Halilović, it-​01-​48-​t, Judgement, para. 78 (Nov. 16, 2005). Cf. Guénaël Mettraux, The Law of Command Responsibility 38 (Oxford: oup 2009) (describing superior responsibility in this sense as “sui generis”); Meloni, op. cit. 631–​633 (same); van Sliedregt, op. cit. 196 (describing superior responsibility as a “hybrid form of liability” reflecting aspects of attribution and a separate offence); Jackson (2019), op. cit. 411–​412. 143 Cf. Darryl Robinson, Justice in Extreme Cases 143–​176 (Cambridge: cup 2020). 144 See In re Yamashita, 327 U.S. 1 (1946). 145 See icty Statute (1993), Article 7(3); ictr Statute (1994), Article 6(3); Rome Statute (1998), Article 28; untaet Regulation (2000), Section 16; eccc Law (2001), Article 29; scsl Statute (2002), Article 6(3); stl Statute (2007), Article 3(2); eac Statute (2013), Article 10. See also Additional Protocol i (1977), Articles 86–​87. See similarly Draft Code of Crimes (1996), Article 6 (“Responsibility of the superior”). 146 In icty caselaw, see, e.g., Delalić et al., it-​96-​21-​t, Judgement, para. 346 (Nov. 16, 1998); Blaškić, it-​95-​14-​t, Judgement, para. 294 (Mar. 3, 2000). In ictr caselaw, see, e.g., Akayesu, ictr-​96-​4-​t, Judgement, paras. 486–​491 (Sept. 2, 1998); Ntagerura et al., ictr-​99-​46-​t, Judgement and Sentence, paras. 627–​630 (Feb. 25, 2004). In scsl caselaw, see, e.g., Brima et al., scsl-​04-​16-​t, Judgement, paras. 781–​783 (June 20, 2007). 147 See, e.g., Ieng et al., 002/​19-​09-​2007-​e ccc/​o cij (ptc 145 & 146), Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order, paras. 190–​232 (Feb. 15, 2011); Milutinović et al., it-​05-​87-​t, Judgement, Vol. 1, para. 113 (Feb. 26, 2009); Brima et al., scsl-​ 04-​16-​t, Judgement, para. 782 (June 20, 2007). 148 For a modified formulation, discussed below, see Rome Statute (1998), Article 28.

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The first element of superior responsibility requires the existence of a superior-​ subordinate relationship between the accused and the individual for whose criminal conduct the accused is alleged to be responsible.149 Both de facto and de jure relationships are sufficient to satisfy this element.150 It is well established that superior responsibility may arise for positions of authority in both the military and non-​military contexts.151 The touchstone of the requisite relationship is “effective control,” which refers to the capacity of the superior to prevent the commission of the underlying offense or punish its principal.152 The parameters of the relevant powers of a superior necessarily differ between military and non-​military superiors.153 In the absence of the “necessary powers” of such effective control, or where control is “absent or too remote,” the relationship necessary to give rise to the duties of a superior in relation to a subordinate does not exist.154 The second element of superior responsibility constitutes the subjective element, which requires either actual or constructive knowledge of the underlying criminal conduct on the part of the accused. Specifically, this element requires that the accused knew, or had reason to know, that the underlying 149 See, e.g., Blaškić, it-​95-​14-​t, Judgement, paras. 300–​303 (Mar. 3, 2000); Delalić et al., it-​96-​ 21-​t, Judgement, paras. 354–​378 (Nov. 16, 1998). 150 See, e.g., Delalić et al., it-​96-​21-​t, Judgement, paras. 354–​378 (Nov. 16, 1998); Brima et al., scsl-​04-​16-​t, Judgement, paras. 784–​790 (June 20, 2007). 151 In icty caselaw, see, e.g., Delalić et al., it-​96-​21-​t, Judgement, paras. 355–​363 (Nov. 16, 1998) (identifying this scope as based in customary international law with precedent from post-​w wii prosecutions); Delalić et al., it-​96-​21-​a , Judgement, para. 196 (Feb. 20, 2001). In ictr caselaw, see, e.g., Akayesu, ictr-​96-​4-​t, Judgement, paras. 490–​491 (Sept. 2, 1998); Ntagerura et al., ictr-​99-​46-​t, Judgement and Sentence, para. 627 (Feb. 25, 2004). See similarly Rome Statute (1998), Article 28 (containing distinct provisions governing military relationships (Article 28(a)) and other superior and subordinate relationships (Article 28(b))). 152 In icty caselaw, see, e.g., Milutinović et al., it-​05-​87-​t, Judgement, Vol. 1, paras. 117–​118 (Feb. 26, 2009); Blaškić, it-​95-​14-​a , Judgement, paras. 67, 375 (July 29, 2004); Kordić and Čerkez, it-​95-​14/​2-​a , Judgement, para. 840 (Dec. 17, 2004); Delalić et al., it-​96-​21-​a , Judgement, paras. 196–​197 (Feb. 20, 2001). In ictr caselaw, see, e.g., Ntagerura et al., ictr-​ 99-​46-​t, Judgement and Sentence, para. 628 (Feb. 25, 2004); Kayishema and Ruzindana, ictr-​95-​1-​a , Judgement, para. 294 (June 1, 2001); Renzaho, ictr-​97-​31-​t, Judgement and Sentence, para. 745 (July 14, 2009); Karera, ictr-​01-​74-​t, Judgement and Sentence, para. 564 (Dec. 7, 2007). For a discussion of possible factors indicating “effective control” in icc caselaw, cf. Bemba, icc-​01/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, para. 188 (Mar. 21, 2016). 153 See, e.g., Aleksovski, it-​95-​14/​1 -​t, Judgement, paras. 75–​78 (June 25, 1999); Bagilishema, ictr-​95-​1A-​a , Judgement, para. 52 (July 3, 2002). See also Bemba, icc-​01/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, para. 178 (Mar. 21, 2016). 154 See, e.g., Delalić et al., it-​96-​21-​t, Judgement, para. 377 (Nov. 16, 1998).

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criminal conduct was about to be, was being, or had been committed by one or more of their subordinates.155 Actual knowledge refers to knowledge of the objective, but not the subjective, elements of the underlying criminal conduct.156 Constructive, or imputed, knowledge refers to knowledge that the accused had reason to know under the circumstances, such that the lack of actual knowledge constitutes a failure on the part of the accused to use the means available to learn about that conduct.157 In this regard, negligence alone is insufficient to satisfy the mental element with respect to constructive knowledge.158 However, Article 28 of the Rome Statute provides for separate mental elements applicable to military and non-​military superiors and, with respect to military superiors, provides for a “should have known” standard that has been interpreted as departing from the “had reason to know” standard adopted by the ad hoc tribunals.159 1 55 See, e.g., id. para. 383. 156 See, e.g., id. paras. 384–​386; Blaškić, it-​95-​14-​t, Judgement, paras. 307–​308 (Mar. 3, 2000); Brima et al., scsl-​04-​16-​t, Judgement, paras. 792–​793 (June 20, 2007). For factors that may indicate knowledge, see, e.g., Bemba, icc-​01/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, para. 193 (Mar. 21, 2016); Kordić and Čerkez, it-​95-​14/​2-​t, Judgement, para. 427 (Feb. 26, 2001). 157 See, e.g., Delalić et al., it-​96-​21-​t, Judgement, paras. 387–​393 (Nov. 16, 1998); Blaškić, it-​ 95-​14-​t, Judgement, paras. 314–​332, esp. 322 (Mar. 3, 2000) (“a commander may be liable for crimes by his subordinates if ‘he failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction’.” (internal citations omitted)). See also Hadžihasanović and Kubura, it-​01-​47-​a , Judgement, paras. 30–​31 (Apr. 22, 2008). 158 See, e.g., Blaškić, it-​95-​14-​a , Judgement, para. 62 (July 29, 2004); Brima et al., scsl-​04-​16-​t, Judgement, paras. 794–​796 (June 20, 2007); Akayesu, ictr-​96-​4-​t, Judgement, para. 489 (Sept. 2, 1998) (requiring “malicious intent, or, at least … that negligence was so serious as to be tantamount to acquiescence or even malicious intent.”); but see Renzaho, ictr-​97-​ 31-​t, Judgement and Sentence, paras. 746–​747 (July 14, 2009); Ntagerura et al., ictr-​99-​46-​ t, Judgement and Sentence, para. 629 (Feb. 25, 2004). 159 Rome Statute (1998), Article 28(a)(i) (“That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes” (emphasis added)). See Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, paras. 433–​434 (June 15, 2009). Compare with icty Statute (1993), Article 7(3) (“The fact that any of the acts … was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” (emphasis added)); ictr Statute (1994), Article 6(3) (same). See Krnojelac, it-​97-​25-​t, Judgement, para. 94 (Mar. 15, 2002). Cf. Jackson (2019), op. cit. 424-​425 (describing the mental element applicable to military superiors under the Rome Statute as departing from customary international law by admitting a negligence

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The third element of superior responsibility requires that the accused failed to take the “necessary and reasonable” measures to prevent or punish the underlying subordinate criminal conduct.160 Necessary and reasonable measures, a standard itself attributed to customary international law,161 refer to those measures within the subordinate’s power to undertake,162 and are therefore context specific.163 As such, necessary and reasonable measures have been viewed in relation to the effective control of the superior vis-​à-​vis their subordinate.164 Such measures relate to prevention and punishment as two distinct duties of the superior,165 and failure to take necessary and reasonable measures to prevent an offence “cannot be cured” by punishing such an offence.166 The failure to prevent, then, refers to the superior’s failure to take the necessary and reasonable measures to prevent the underlying criminal standard); Ambos (2013), op. cit. 224–​225. For discussion of negligence during Post-​w wii prosecutions, see Cassese et al., op. cit. 54–​55. 160 Compare with Rome Statute (1998), Article 28(a)(ii), (b)(iii) (referring to “fail[ure] to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”). It appears unlikely that the tripartite formulation of Article 28 captures omissions that would not also be captured by the bipartite “prevent and punish” formulation regarded as belonging to customary international law: see Jackson (2019), op. cit. 419. 161 Halilović, it-​01-​48-​a , Judgement, para. 63 (Oct. 16, 2007). 162 Delalić et al., it-​96-​21-​t, Judgement, paras. 394–​395 (Nov. 16, 1998); Aleksovski, it-​95-​14/​1-​t, Judgement, para. 81 (June 25, 1999) (“the measures which the superior can actually take.”); Blaškić, it-​95-​14-​t, Judgement, para. 302 (Mar. 3, 2000) (same). Accord. Bemba, icc-​01/​ 05-​01/​08, Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber iii’s “Judgment pursuant to Article 74 of the Statute,” para. 167 (June 8, 2018) (“The scope of the duty to take ‘all necessary and reasonable measures’ is intrinsically connected to the extent of a commander’s material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities for investigation and prosecution.”). See similarly Additional Protocol i (1977), Article 86 (“Failure to Act”); Draft Code of Crimes (1996), Article 6 (“all necessary measures within their power”). 163 Delalić et al., it-​96-​21-​t, Judgement, para. 394 (Nov. 16, 1998) (“[A]‌ny evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful.”). Accord, e.g., Bemba, icc-​01/​05-​01/​08, Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber iii’s “Judgment pursuant to Article 74 of the Statute,” paras. 168–​170 (June 8, 2018) (“[A]n assessment of whether a commander took all ‘necessary and reasonable measures’ will require consideration of what measures were at his or her disposal in the circumstances at the time.”). 164 See, e.g., Ntagerura et al., ictr-​99-​46-​t, Judgement and Sentence, para. 630 (Feb. 25, 2004). 165 See, e.g., Hadžihasanović and Kubura, it-​01-​47-​a , Judgement, para. 259 (Apr. 22, 2008); Orić, it-​03-​68-​t, Judgement, para. 326 (June 30, 2006). 166 Halilović, it-​01-​48-​t, Judgement, para. 72 (Nov. 16, 2005).

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conduct of their subordinate.167 The caselaw of international courts and tribunals indicates that assessing whether the superior failed to perform their duty to prevent is a question of fact rather than law168; it does not require a causal link, or “but for” relationship, between the superior’s failure and the underlying criminal conduct of their subordinate.169 The failure to punish refers to the superior’s failure to take the necessary and reasonable measures to punish the underlying criminal conduct of their subordinate.170 Whether the superior failed to perform their duty to punish has been viewed in relation to the circumstances and degree of effective control.171 Because the duty of punishment presupposes the commission of an underlying crime, a causal link, or “but for” relationship, between the superior’s failure and the underlying criminal conduct of their subordinate cannot follow.172 It should be noted that Article 28(a) of the Rome Statute provides for superior responsibility in relation to “crimes … as a result of his or her failure to exercise control properly.”173 In practice, this standard has not been interpreted to require a causal link between the superior’s failure and the underlying criminal conduct of their subordinate, but instead requires only that such failure “increased the risk” of the crimes in question.174 Even so, the separate opinions 167 Cf. Orić, it-​03-​68-​t, Judgement, paras. 327-​331 (June 30, 2006); Brima et al., scsl-​04-​16-​t, Judgement, paras. 797–​798 (June 20, 2007). 168 Hadžihasanović and Kubura, it-​01-​47-​a , Judgement, para. 33 (Apr. 22, 2008). For examples, see Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, para. 438 (June 15, 2009); Bemba, icc-​01/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, para. 204 (Mar. 21, 2016). 169 Hadžihasanović and Kubura, it-​01-​47-​a , Judgement, para. 41 (Apr. 22, 2008); Delalić et al., it-​96-​21-​t, Judgement, paras. 398–​400 (Nov. 16, 1998). But see Blaškić, it-​95-​14-​t, Judgement, paras. 335–​339 (Mar. 3, 2000). 170 Cf. Orić, it-​03-​68-​t, Judgement, paras. 332–​336 (June 30, 2006); Brima et al., scsl-​04-​16-​t, Judgement, para. 799 (June 20, 2007). 171 Boškoski and Tarčulovski, it-​04-​82-​a , Judgement, paras. 230–​231 (May 19, 2010) (It should be noted that this case—​involving relatively limited crimes over a short period of time—​ underscores the fact-​dependent nature of determining whether a superior has sufficiently discharged their duty to prevent). 172 See, e.g., Delalić et al., it-​96-​21-​t, Judgement, para. 400 (Nov. 16, 1998) (“The very existence of the principle of superior responsibility for failure to punish, recognized under [the icty Statute] and customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.”). Accord. Bemba, icc-​ 01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, para. 424 (June 15, 2009). 173 Rome Statute (1998), Article 28(a). 174 See, e.g., Bemba, icc-​01/​05-​01/​08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo, paras.

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appended to decisions of the icc Trial Chamber and Appeals Chamber in Bemba reflect different understandings of the “as a result” standard as it relates to causation,175 underscoring lingering questions about superior responsibility as a mode of liability in view of the culpability principle.176 v Inchoate Offences Responsibility may arise where the accused takes steps intended to produce a harmful effect, regardless of whether the intended harmful effect is realized.177 Under international criminal law, liability may arise for a limited category of such inchoate offences intended to bring about the commission of another crime. Forms of liability generally included in this category are attempt, conspiracy, and incitement.178 While the objective element of each mode of liability within this category differs in material ways, the subjective element across each form of liability in this category requires the accused to have the requisite mens rea of the intended crime. There is little indication that responsibility for inchoate offenses other than attempt presently arises under international law beyond the crime of genocide.

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420–​426 (June 15, 2009) (“There is no direct causal link that needs to be established … it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged[.]‌”); Bemba, icc-​0 1/​05-​01/​08, Judgement pursuant to Article 74 of the Statute, paras. 210–​213 (Mar. 21, 2016). See also Ntaganda, icc-​0 1/​04-​02/​ 06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, para. 174 (June 9, 2014). But see Ambos (2013), op. cit. 215–​217. Cf. Bemba, icc-​0 1/​05-​01/​08, Judgement pursuant to Article 74 of the Statute (Mar. 21, 2016), Sep. Op. Steiner, para. 24 (Adopting a threshold of “high probability” that discharge of duties would have impeded commission of crimes in question, or that crimes would not have been performed in the manner committed.); id., Sep. Op. Ozaki, para. 23 (Proposing to limit liability to “results that are reasonably foreseeable.”) See also Bemba, icc-​0 1/​05-​01/​08, Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber iii’s “Judgment pursuant to Article 74 of the Statute” (June 8, 2018), Joint Diss. Op. Monageng and Hofmański, para. 339 (Endorsing Judge Steiner’s “high probability” standard.); id., Sep. Op. Eobe-​Osuji, para. 166 (Referring to a causation standard requiring a “significant” contribution.). See discussion supra, n. 143. See, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 720 (Nov. 28, 2007) (“An inchoate offence (‘crime formel’ in civil law) is consummated simply by the use of a means or process calculated to produce a harmful effect, irrespective of whether that effect is produced.”). Id.

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1 Attempt Liability for an attempt to commit a crime may arise where an individual acts with intent to commit a crime but the crime is not completed.179 The proposition to extend international criminal liability to attempts to commit at least certain international crimes is reflected in both the 1954 ilc Draft Code of Offences and the 1996 ilc Draft Code of Crimes.180 Prior to the Rome Statute, genocide was the only international crime in relation to which attempts had been formally criminalized.181 The Rome Statute provides for criminal responsibility for “[a]‌ttempts to commit [] a crime [within the court’s jurisdiction] by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions.”182 It has been suggested that this formulation in the Rome Statute reflects customary international law,183 and more broadly that customary international law has included attempt as a form of liability since World War ii,184 though criminalization of attempts may “at best” reflect a general principle of law.185 179 Cf. Cryer et al., op. cit. 380; Ambos (2013), op. cit. 233–​265; Cassese et al., op. cit. 199–​201; van Sliedregt, op. cit. 147–​153. 180 Draft Code of Offences (1954), Article 2(13)(iv) (“Attempts to commit any of the offences”); Draft Code of Crimes (1996), Article 2(3)(g) (“Attempts to commit such a crime by taking action commencing the execution of a crime which does not in fact occur because of circumstances independent of his intentions.”). 181 Genocide Convention (1948), Article iii(d); icty Statute (1993), Article 4(3)(d); ictr Statute (1994), Article 2(3)(d). Accord. Akayesu, ictr-​96-​4-​t, Judgement, para. 473 (Sept. 2, 1998) (“the principle of individual criminal responsibility for an attempt to commit a crime obtained only in case of genocide.”); Krnojelac, it-​97-​25-​t, Judgement, para. 432 n. 1291 (Mar. 15, 2002) (regarding persecution as a crime against humanity, which “may in some circumstances amount to the inchoate offence of attempted persecution, but no such crime falls within the jurisdiction of this Tribunal.” (emphasis in original)). But see Mrða, it-​02-​59-​S, Amended Indictment, Count 3 (Aug. 4, 2003) (indictment for “attempted murder” as “inhumane acts” constituting a crime against humanity). 182 Rome Statute (1998), Article 25(3)(f). The provision also contemplates abandonment: “However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.” 183 Werle and Jessberger, op. cit. n. 628. But see Jérôme de Hemptinne, Attempt, in de Hemptinne, op. cit. 351–​352 (taking a more nuanced view, particularly with respect to the crime of aggression). 184 Cryer et al., op. cit. 380. See Types of Offences, 15 lrtwc 89 (London: His Majesty’s Stationery Office 1949). See also Cassese et al., op. cit. 200. 185 Ambos (2013), op. cit. 236.

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The rationale for criminalizing attempts to commit a crime under international law reflects the gravity accompanying even an unsuccessful attempt to carry out such a crime.186 Even so, questions arise over whether attempts are sufficient to meet the seriousness threshold often required to trigger the jurisdiction of an international court or tribunal.187 There is also uncertainty as to whether attempt is a modality of responsibility applicable to the crime of aggression, which itself presupposes a State act of aggression as a constituent element.188 The objective element of the modality of attempt is satisfied where an individual performs a “significant step” toward completion of a covered crime but the crime does not occur because of circumstances independent of that individual’s intentions. The objective element of attempt is necessarily distinct from the objective element of the underlying crime because the underlying crime, by definition, is not competed.189 Both the 1996 ilc Draft Code of Crimes and the Rome Statute define attempt in terms of “taking action commencing the execution of a crime” by means of a “substantial” or “significant” step.190 The formulation in the Rome Statute has been described as a “compromise formula” that reflects aspects of liability for attempts derived from different legal systems, resulting in a “mixed concept.”191 At least one icc ptc has interpreted the objective element as requiring conduct “adequate” to bring

186 See Draft Code of Crimes (1996), Article 2, Commentary, para. 17 (“The Commission decided to recognize this exception to the requirement that a crime in fact occurred … for two reasons. First, a high degree of culpability attaches to an individual who attempts to commit a crime and is unsuccessful only because of circumstances beyond his control rather than his own decision to abandon the criminal endeavour. Secondly, the fact that an individual has taken a significant step towards the completion of one of the crimes … entails a threat to international peace and security because of the very serious nature of these crimes.”). 187 Ambos (2013), op. cit. 240. But see, e.g., Gbagbo, icc-​0 2/​11-​01/​11, Decision on the confirmation of charges against Laurent Gbagbo, paras. 17, 241, 251, 259, 266 (June 12, 2014); Ntaganda, icc-​0 1/​04-​02/​06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, esp. para. 153 (June 9, 2014). 188 See discussion supra, Chapter 4, nn. 44–​49 (on the crime of aggression). Cf. de Hemptinne, Attempt, op. cit. 343–​345. 189 And so the significant or substantial “step” need not constitute fulfillment of one or more elements of the underlying crime: Ambos (2013), op. cit. 236–​237. 190 Compare Rome Statute (1998), Article 25(3)(f), with Draft Code of Crimes (1996), Article 2(3)(g), and id., Commentary, para. 17. 191 Cf. Cryer et al., op. cit. 380; Ambos (2013), op. cit. 252–​256; de Hemptinne, Attempt, op. cit. 341–​342.

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about the underlying crime.192 The subjective element of attempt is the same as that of the underlying offense.193 Defined in terms of its elements, liability for the inchoate crime of attempt may arise in relation to an underlying crime for which the objective elements are incomplete, while the subjective elements are complete.194 2 Conspiracy Conspiracy may give rise to criminal responsibility where individuals agree to commit a crime, whether or not the contemplated crime is completed.195 Prosecutions following the Second World War recognized liability for conspiracy in relation to crimes against peace, but not other international crimes.196 International law instruments at present appear to contemplate conspiracy only in relation to genocide.197 Conspiracy is absent from the Rome Statute and has not been recognized to give rise to criminal responsibility in relation 192 Banda and Jerbo, icc-​0 2/​05-​03/​09, Corrigendum of the “Decision on the Confirmation of Charges,” para. 96 (Mar. 7, 2011). 193 Katanga and Chui, icc-​0 1/​04-​01/​07, Decision on the confirmation of charges, para. 460 (Sept. 30, 2008). In other words, the non-​completion of the underlying crime is independent of the intent of the perpetrator. In this regard, on abandonment, see Ambos (2013), op. cit. 264–​265. 194 Katanga and Chui, icc-​0 1/​04-​01/​07, Decision on the confirmation of charges, para. 460 (Sept. 30, 2008). 195 See, e.g., Milutinović et al., it-​99-​37-​a r72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—​Joint Criminal Enterprise, para. 23 (May 21, 2003). Cf. Cryer et al., op. cit. 380–​381; Cassese et al., op. cit. 201–​203; van Sliedregt, op. cit. 179–​181; Jérôme de Hemptinne, Conspiracy, in de Hemptinne, op. cit. 367–​386. 196 imt Charter (1945), Article 6; Tokyo Charter (1946), Article 5 (note that each instrument provided for superior responsibility in relation to conspiracy to commit a covered crime); Control Council Law for Germany No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Article ii(1)(a) (Dec. 20, 1945), 3 Official Gazette of the Control Council for Germany 12 et seq. (1946), reprinted in Naval War College, xlv International Law Documents, 1946–​1 947 309 et seq. (Washington: U.S. Government Printing Office 1948) (hereinafter, “Control Council Law No. 10 (1945)”). Cf. Types of Offences, 15 lrtwc 89, 90–​99, esp. 90 (London: His Majesty’s Stationery Office 1949) (noting that the offence of conspiracy to commit the crime of “waging aggressive war does not seem to have been doubted” but that U.S. Military Tribunals and the imt “have not recognized as a separate offence conspiracy to commit war crimes or crimes against humanity.”); imt Judgement and Sentences (1946), 222 (“Conspiracy is not defined in the Charter. But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action.”). Cf. Ambos (2013), op. cit. 110–​111; de Hemptinne, Conspiracy, op. cit. 368. 197 Genocide Convention (1948), Article iii(b); icty Statute (1993), Article 4(3)(b); ictr Statute (1994), Article 2(3)(b).

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to the other international crimes.198 Functionally, conspiracy to commit genocide may be more accurately regarded as an independent substantive crime rather than a mode of liability.199 The objective element of conspiracy to commit genocide is “a concerted agreement,” between two or more persons, to act for the purpose of committing genocide.200 Such agreement need not be express and may be inferred from circumstantial evidence.201 The subjective element of conspiracy to commit genocide requires the individuals entering into such an agreement to satisfy the mens rea of genocide.202 Conspiracy is punishable even in the absence of genocide, that is, regardless of whether or not genocide results from the conspiracy.203 Because conspiracy is characterized as a continuing crime that culminates in the commission of the crime contemplated by the agreement, individuals can join the conspiracy, after the initial agreement is concluded, until the completion of the contemplated crime.204

198 stl-​11-​01/​i , Interlocutory Decision on the Applicable Law, para. 192 n. 300 (Feb. 16, 2011) (“[T]‌he only substantive crime of conspiracy that has developed in international criminal law is the conspiracy to commit genocide[.]”). See also Hamdan v. Rumsfeld, 548 U.S. 557, 620 (2006) (“[T]he only ‘conspiracy’ crimes that have been recognized by international war crimes tribunals … are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a ‘concrete plan to wage war’.”). Cf. de Hemptinne, Conspiracy, op. cit. 373–​378. 199 Compare, e.g., icty Statute (1993), Article 4(3)(b) and ictr Statute (1994), Article 2(3)(b) (in which conspiracy appears in the substantive provisions regarding the crime of genocide), with icty Statute (1993), Article 7(1) and ictr Statute (1994), Article 6(1) (providing general modes of attribution without reference to conspiracy). 200 In ictr caselaw: see, e.g., Nyiramasuhuko et al., ictr-​98-​42-​a , Judgement, paras. 469, 473 (Dec. 14, 2015); Seromba, ictr-​2001-​66-​a , Judgement, paras. 218, 221 (Mar. 12, 2008); Nahimana et al., ictr-​99-​52-​a , Judgement, paras. 894, 896 (Nov. 28, 2007); Musema, ictr-​ 96-​13-​t, Judgement, paras. 189–​191 (Jan. 27, 2000). In icty caselaw: see, e.g., Tolimir, it-​05-​ 88/​2-​t, Judgement, paras. 784–​787 (Dec. 12, 2012). 201 Nahimana et al., ictr-​99-​52-​a , Judgement, para. 896 (Nov. 28, 2007). 202 In ictr caselaw: see, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 894 (Nov. 28, 2007) (“the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnic, racial or religious group as such (mens rea).”); Musema, ictr-​96-​13-​t, Judgement, para. 192 (Jan. 27, 2000). In icty caselaw, see, e.g., Tolimir, it-​ 05-​88/​2 -​t, Judgement, para. 787 (Dec. 12, 2012). 203 Musema, ictr-​96-​13-​t, Judgement, paras. 193–​194 (Jan. 27, 2000). It follows that participation in genocide is not required for liability to arise for conspiracy to commit genocide. Accord. Gatete, ictr-​00-​61-​a , Judgement, para. 260 (Oct. 9, 2012); Tolimir, it-​05-​88/​2 -​t, Judgement, para. 786 (Dec. 12, 2012). 204 See, e.g., Tolimir, it-​05-​88/​2 -​t, Judgement, para. 785 (Dec. 12, 2012); Popović et al., it-​05-​88-​ t, Judgement, Vol. i, para. 876 (June 10, 2010); Nahimana et al., ictr-​99-​52-​t, Judgement

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3 Incitement Individual criminal responsibility for incitement of another individual to commit a crime is presently admitted under international law only in relation to genocide.205 In particular, the relevant offence is defined as “direct and public incitement” to commit genocide. Although the Rome Statute contains a specific subparagraph in its provision on modalities of liability specific to genocide, which provides for liability for direct and public incitement to commit genocide,206 incitement is perhaps more accurately characterized as a distinct substantive crime rather than a mode of liability.207 To the extent that the Genocide Convention, which prohibits direct and public incitement to commit genocide,208 is regarded to reflect customary international law, it has been inferred that direct and public incitement to commit genocide therefore belongs to customary international law.209 The objective element of direct and public incitement to commit genocide is satisfied where an individual both directly and publicly encourages others to commit genocide.210 The subjective element of direct and public incitement to commit genocide requires the accused to have the intent to incite others to commit genocide, which presupposes the mens rea of genocide.211 As an inchoate offence, incitement is punishable even if such incitement does not result in genocide.212 It follows that there need not be a causal relationship between and Sentence, para. 1044 (Dec. 3, 2003). On withdrawal from conspiracy, see Tolimir, it-​ 05-​88/​2-​t, Judgement, para. 785 (Dec. 12, 2012). 205 See, e.g., Rome Statute (1998), Article 25(3)(e); icty Statute (1993), Article 4(3)(c); ictr Statute (1994), Article 2(3)(c); Genocide Convention (1948), Article iii(c). Cf. Cassese et al., op. cit. 203; van Sliedregt, op. cit. 179–​181; Jérôme de Hemptinne, Incitement, in de Hemptinne, op. cit. 388–​405. But see Draft Code of Crimes (1996), Article 2(3)(f), and id., Commentary, para. 16. 206 Rome Statute (1998), Article 25(3)(e). 207 See, e.g., Nahimana et al., ictr-​99-​52-​a , Judgement, para. 678 (Nov. 28, 2007). Compare, e.g., icty Statute (1993), Article 4(3)(c) and ictr Statute (1994), Article 2(3)(c) (in which incitement appears in the substantive provisions regarding the crime of genocide), with icty Statute (1993), Article 7(1) and ictr Statute (1994), Article 6(1) (providing general modes of attribution without reference to incitement). 208 Genocide Convention (1948), Article iii(c). 209 See de Hemptinne, Incitement, op. cit. 403–​404. 210 Nzabonimana, ictr-​98-​44d-​a , Judgement, paras. 121, 234 (Sept. 29, 2014); Kalimanzira, ictr-​05-​88-​a , Judgement, para. 155 (Oct. 20, 2010); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 678 (Nov. 28, 2007). 211 Nzabonimana, ictr-​98-​44d-​a , Judgement, para. 121 (Sept. 29, 2014); Kalimanzira, ictr-​ 05-​88-​a , Judgement, para. 155 (Oct. 20, 2010); Nahimana et al., ictr-​99-​52-​a , Judgement, para. 677 (Nov. 28, 2007). 212 Nahimana et al., ictr-​99-​52-​t, Judgement and Sentence, para. 1015 (Dec. 3, 2003); Nahimana et al., ictr-​99-​52-​a , Judgement, paras. 677–​678 (Nov. 28, 2007). Nor is the

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incitement and the commission of genocide for liability to arise for direct and public incitement to commit genocide.213 b

Conclusions

International law admits various modes of attribution for purposes of individual responsibility for crimes under international law. These secondary rules provide modalities of participation in prohibited conduct sufficient to give rise to individual criminal responsibility for that conduct. In effect, these secondary rules inform an assessment of whether an individual has associated themselves with an international crime in a manner sufficient to trigger their criminal responsibility from the perspective of international law. The available modes of attribution in international criminal law establish the scope of criminal liability that may arise in connection with a given international crime: international law allocates responsibility not only to the actor who satisfies the elements of the crime as its principal, but also expands potential liability to accessorial actors who encourage or assist in such conduct, as well as to superiors for failing to discharge their duties with respect to responsible subordinates. The rules of attribution in international criminal law differentiate between principals and accessories and accept certain modes of liability that are unique to the organizational context in which international crimes may be perpetrated.214 That the rules of attribution in international criminal law are typically characterized as modes of liability underscores an important feature of these secondary rules: like the elements of crimes themselves, secondary rules of attribution in international criminal law contain both objective and subjective elements.215 The secondary rules of attribution look not only to the relevant physical conduct of an individual, but also, to whether such conduct was carried out with the requisite mens rea to engage that individual’s liability. The subjective elements of modes of attribution in international criminal law reflect an aspect of fault through which an individual associates themselves

commission of genocide sufficient to establish elements of incitement to commit genocide: see id. para. 709. 213 Id. 2 14 Cf. Miles Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29(3) Leiden Journal of International Law 879–​895 (2016); Gal, op. cit. 18-​19. 215 See discussion supra, Chapter 6.a (Modes of Attribution).

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with criminal conduct in such a way as to give rise to criminal responsibility. More specifically, the varying subjective elements in modes of attribution in international criminal law contribute to a differentiated model of participation in crime that captures the moral culpability of actors.216 This focus of international criminal law on the allocation of fault is characteristic of criminal law more generally, one that informs the assignment of punishment commensurate with the degree of responsibility borne by an actor.217 i Relevance to Attribution in the Law of State Responsibility For purposes of duality of responsibility in international law, as discussed in greater detail in Chapter 8, assessing individual responsibility for international crimes is the point of departure for assessing concurrent State responsibility.218 And, as a practical matter, in order to establish individual criminal responsibility under international law, both the elements of the crime and the elements of the applicable mode of attribution must be established beyond a reasonable doubt.219 However, while individual criminal responsibility is contingent upon establishing both the elements of crime and the elements of an applicable mode of attribution, State responsibility for an international crime is not predicated upon the prior attribution of such criminal conduct to an individual so as to engage their criminal responsibility.220 An illustration of 2 16 Cf. Jackson (2016), op. cit. 891. 217 See, e.g., Kupreškić et al., it-​95-​16-​t, Judgement, para. 852 (Jan. 14, 2000) (“The sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.”); See also Rules of Procedure and Evidence, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–​10 September 2002 (icc-​a sp/​1/​3 and Corr.1), part ii.A, Rule 145 (“In its determination of the sentence … the Court shall [b]‌ear in mind that the totality of any sentence of imprisonment and fine … must reflect the culpability of the convicted person.”) (hereinafter, “icc rpe”). 218 Application of the Genocide Convention (2007), para. 401. See discussion infra, Chapter 8.b (Double Attribution). 219 See, e.g., Chui, icc-​0 1/​04-​02/​12 A, Judgement on the Prosecutor’s appeal against the decision of Trial Chamber ii entitled “Judgement pursuant to article 74 of the Statute,” paras. 25, 109 (Apr. 7, 2015); Mrkšić and Šljivančanin, it-​95-​13/​1 -​a , Judgement, para. 217 (May 5, 2009); Fofana and Kondewa, scsl-​04-​14-​a , Judgement, esp. para. 63 (May 28, 2008) (applying the standard throughout); Ntagerura et al., ictr-​99-​46-​a , esp. para. 170 (July 7, 2006) (“Article 20(3) of the Statute … embodies a general principle of law, that the Prosecution bears the onus of establishing the guilt of the accused beyond reasonable doubt.”). 220 See discussion infra, Chapter 8.b (Double Attribution).

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this point is that a prior conviction of an individual for such criminal conduct by a competent court or tribunal is not necessary to establish the element of breach of a State’s international obligation that would give rise, if also attributed to an individual, to individual criminal responsibility.221 The icj suggested this possibility in its 2007 Application of the Genocide Convention decision, and again in its 2015 Application of the Genocide Convention decision, finding that State responsibility can arise for genocide under the Genocide Convention “‘withou t an ­individual being convicted of the crime or an associated one’.”222 Proceedings instituted by The Gambia in 2019 against Myanmar before the icj in Application of the Genocide Convention provide another opportunity for State responsibility to arise for genocide under the Genocide Convention in the absence of individual convictions for the crime or an associated one.223 Even so, an international court or tribunal adjudging State responsibility for a crime under international law may nevertheless find it necessary to undertake an analysis of modes of attribution under international criminal law. Such analysis may be required to identify actors bearing responsibility for an international crime as a predicate to application of the secondary rules of attribution in the law of State responsibility with respect to those actors.224 In this way, the secondary rules of attribution in international criminal law may be relevant to an assessment of State responsibility, particularly where an actor responsible for an international crime is liable by operation of a modality other than direct participation. One notable example in this regard is the 2007 Application of the Genocide Convention judgment, in which the icj looked to whether the elements of aiding and abetting, an accessory mode of attribution 221 See, e.g., ilc Articles on State Responsibility, Article 58, Commentary, para. 3, n. 839 (citing Streletz, Kessler and Krenz v. Germany (application Nos. 34044/​96, 35532/​97 and 44801/​98), judgment of 22 March 2001, Eur. Court H.R., Reports, 2001–​i i (para. 104) (“If the gdr still existed, it would be responsible from the viewpoint of international law for the acts concerned. It remains to be established that alongside that State responsibility the applicants individually bore criminal responsibility at the material time.”)). Cf. André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52(3) iclq 615, 627–​631 (2003). 222 Application of the Genocide Convention (2015), para. 128 (quoting Application of the Genocide Convention (2007), para. 182). Note that this observation by the icj may also be interpreted as referring to State responsibility that is complementary to individual responsibility: see discussion supra, Chapter 4, n. 15. 223 Application of the Genocide Convention (2020). 224 See Application of the Genocide Convention (2007), paras. 421–​424 (though not a perfect illustration of this point, the icj discussed whether accomplices shared the specific intent of principal perpetrators of genocide for purposes of State responsibility under Article iii of the Genocide Convention.).

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in international criminal law,225 had been established with respect to State officials such that attribution of their conduct might trigger State responsibility.226 In that case, the icj concluded in relevant part that, because the State organs in question did not act with knowledge of the dolus specialis of the principal perpetrators of genocide in such a way as could give rise to their accessorial liability for the crime of genocide, their conduct, even if attributable to the State, was insufficient to engage State responsibility for complicity in genocide.227 The elements of the relevant mode of attribution in international criminal law were therefore determinative as to whether State responsibility could arise under an analogous provision of the Genocide Convention. This example also illustrates a broader practical point: in the absence of a breach of a primary rule by an individual, there can be no question of State responsibility for their conduct.228 ii Identifying the Parameters of Modes of Attribution Because of this close functional relationship between modes of attribution in international criminal law and modes of attribution in the law of State responsibility, operation of the former will necessarily shape the latter in the context of duality of responsibility. As a result, however, issues, particularly regarding the potential for overbreadth in modalities of attribution in international criminal law, may be amplified in the field of State responsibility. Debate over the scope of aiding and abetting as a mode of liability warrants special attention in this regard. Recall that international criminal law contemplates accessorial liability where an individual knowingly contributes to the international crime of another.229 Controversy over whether “specific direction” is an element of this modality is emblematic of concern over the potential for its overbreadth.230 The icty, most notably in Perišić, had for a time contemplated 2 25 226 227 228

See discussion supra, Chapter 6.a.iii.1 (Aiding and Abetting). See Application of the Genocide Convention (2007), paras. 421–​424. Id. para. 421. See, e.g., Application of the Genocide Convention (2015), para. 441 (“It follows from the foregoing that Croatia has failed to substantiate its allegation that genocide was committed. Accordingly, no issue of responsibility under the Convention for the commission of genocide can arise in the present case.”). 229 See discussion supra, Chapter 6.a.iii.1 (Aiding and Abetting). 2 30 Cf. Ventura, op. cit. 191–​201; Antonio Coco and Tom Gal, Losing Direction: The icty Appeals Chamber’s Controversial Approach to Aiding and Abetting in Perišić, 12(2) jicj 345 (2014); Manuel J. Ventura, Farewell “specific direction”: aiding and abetting war crimes and crimes against humanity in Perišić, Taylor, Šainović et al., and US Alien Tort Statute Jurisprudence, in Stuart Casey-​Maslen [Ed.], The War Report: Armed Conflict in 2013 511 et seq. (Oxford: oup 2015).

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specific direction to be an objective element of aiding and abetting liability as a bulwark against undue expansion of individual criminal responsibility arising from this modality.231 Objections have been raised where such accessorial liability is contemplated in relation to assistance provided with neutral or even positive intentions.232 This complication arises because knowledge is sufficient to establish the requisite mens rea for aiding and abetting liability.233 The icty Appeals Chamber appears to have been grappling with this particular issue in Perišić, concluding that “the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to the crimes of the principal perpetrators.”234 Also noteworthy in Perišić is that evidence against the accused focused primarily on materiel assistance Serbia had provided to Republika Srpska forces operating outside of Serbia.235 One possible rationale for the Appeals Chamber’s application of a “specific direction” requirement in this context is in view of the possibility that State responsibility would be implicated in relation to individual criminal responsibility arising from the provision of assistance not intended to support criminal conduct. This concern was raised by Judge Moloto in his dissenting opinion appended to the Trial Chamber decision in Perišić.236 In other 231 Perišić, it-​04-​81-​a , Judgement, para. 36 (Feb. 28, 2013). The caselaw of international courts and tribunals has, however, since rejected this element. See Taylor, scsl-​03-​01-​a , Judgment, paras. 474–​475 (Sept. 26, 2013); Šianović et al., it-​05-​87-​a , Judgement, para. 1650 (Jan. 23, 2014). 232 See, in this regard, Miles Jackson, Virtuous Accomplices in International Criminal Law, 68(4) iclq 817–​835 (2019). 233 Id. at 821. See discussion supra, Chapter 6.a.iii.1 (Aiding and Abetting). 234 Perišić, it-​04-​81-​a , Judgement, para. 44 (Feb. 28, 2013). 235 Id. para. 3 (“Perišić was charged with aiding and abetting crimes in the Bosnian towns of Sarajevo and Srebrenica for his role in facilitating the provision of military and logistical assistance from the [Army of Yugoslavia] to the Army of the Republika Srpska.”). 236 Perišić, it-​04-​81-​t, Judgement (Sept. 6, 2011), Diss. Op. Judge Moloto on Counts 1 to 4 and 9 to 12, paras. 24–​34 (“[O]‌ne cannot simply ignore the reality that relations between states are often reinforced by the provision of significant military aid. Many foreign armies are dependent, to various degrees, upon such assistance to function. In this context, I am mindful that in many conflict zones around the world, the provision of military aid is aimed at supporting mutual interests such as the deterrence of war, the promotion of regional and global peace, stability and prosperity and other objectives. If we are to accept the Majority’s conclusion based solely on the finding of dependence, as it is in casu, without requiring that such assistance be specifically directed to the assistance of crimes, then all military and political leaders, who on the basis of circumstantial evidence are found to provide logistical assistance to a foreign army dependent on such assistance, can meet the objective element of aiding and abetting. I respectfully hold that such an approach is manifestly inconsistent with the law.”).

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words, the potential for overbreadth in the application of aiding and abetting liability may result not only in a problematic expansion of individual criminal responsibility, but may also reverberate at the level of State responsibility. The provision of the ilc Articles on State Responsibility addressing aid or assistance in the commission of an internationally wrongful act contemplates intent by a State organ to facilitate wrongful conduct of another State.237 The commentary to that provision states explicitly that “[a]‌State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.”238 In the absence of such a limiting principle in the aiding and abetting modality of liability in international criminal law, however, it is unclear how this provision may or may not impact the attribution to the State of conduct engaging individual criminal responsibility for aiding and abetting an international crime. iii Methodology and Sources of Law This last point, illustrating a debate waged not only in the academy but also within and between international criminal courts and tribunals themselves, underscores a doctrinal issue raised throughout this chapter. Modes of attribution in international criminal law are typically evaluated as belonging (or not) to customary international law.239 However the way in which courts and tribunals typically assess these modalities is not clearly based in opinio juris 237 ilc Articles on State Responsibility, Article 16 (Aid or assistance in the commission of an internationally wrongful act) (“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”). 238 ilc Articles on State Responsibility, Article 16, Commentary, para. 5 (emphasis added). 239 See, e.g., Tadić, it-​94-​1 -​t, Judgement, paras. 663–​669 (May 7, 1997); Tadić, it-​94-​1-​a , Judgement, para. 194 (July 15, 1999); Bagilishema, ictr-​95-​1A-​a , Judgement, para. 34 (July 3, 2002); Brima et al., scsl-​04-​16-​t, Judgement, para. 761 (June 20, 2007); Fofana and Kondewa, scsl-​04-​14-​t, Judgement, para. 202 (Aug. 2, 2007). See discussion supra, nn. 47 (the first two forms of jce as belonging to customary international law); 64 (planning as belonging to customary international law); 71 (ordering as belonging to customary international law); 82 (instigating as belonging to customary international law); 96 (aiding and abetting as belonging to customary international law); 147 (superior responsibility as belonging to customary international law). See also supra, nn. 23 (co-​perpetration as not belonging to customary international law); 47 (the third (extended) form of jce as not belonging to customary international law); 97 (residual accessory liability as not belonging to customary international law).

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evidenced by the practice of States, the constituent elements of customary international law.240 The methodology employed by international courts and tribunals with regard to the identification of modes of attribution and their content in international criminal law raises questions as to whether they are identifying customary international law, or whether in actuality the relevant formal source is general principles of law.241 The identification of modes of attribution often appears more akin to an assessment of general principles of law, upon which international criminal law more broadly relies.242 This methodological point presents a more fundamental question as to the formal source of modes of attribution in international criminal law. To be sure, international courts do not always clearly distinguish between customary international law and general principles of law.243 And the identification of customary international law is an area fraught with methodological issues as a general matter.244 Even so, with respect to modes of attribution in international criminal law in particular, it is unclear whether customary international law, given its requisite elements, offers a suitable source.245 In 240 icj Statute, Article 38(1)(b); Military and Paramilitary Activities in and against Nicaragua (1986), paras. 183–​186; North Sea Continental Shelf (1969), para. 77. 241 Neither is without criticism as a formal source of international criminal law: cf. Ambos (2013), op. cit. 74-​75; Mary Fan, Custom, General Principles and the Great Architect Cassese, 10(5) jicj 1063, 1065 (2012). 242 icj Statute, Article 38(1)(c). Cf. First Report on General Principles of Law (Marcelo Vázquez-​Bermúdez, Special Rapporteur), U.N. Doc. a/​c n.4/​732 (Apr. 5, 2019). In its First Report on General Principles of Law, the ilc identified two categories of general principles: those “derived from national legal systems” and those “formed within the international legal system.” Id., Annex (Draft conclusion 3). To the extent that such a clear ­delineation is practicable, it appears that international criminal law makes reference to both the first category of general principles, see id. paras. 213–​219, and the second category, see id. paras. 245–​249. See also id. paras. 53–​56 (general principles in the work of the ilc related to international criminal law), 113–​120 (general principles in relation to the Rome Statute), 133 (general principles in the judgments of international courts and tribunals). See discussion supra, n. 47. 243 Harmen van der Wilt, State Practice as Element of Customary International Law: A White Knight in Criminal Law?, 20(5) International Criminal Law Review 784, 802 (2019). 244 See, e.g., Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, 26(2) ejil 417–​443 (2015); Jörg Kammerhofer, Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems, 15(3) ejil 523–​553 (2004). For a discrete example, see Ingrid Wuerth, Pinochet’s Legacy Reassessed, 106(4) ajil 731–​768 (2012). 245 Larissa van den Herik, The Decline of Customary International Law as a Source of International Criminal Law, in Curtis Bradley [Ed.], Custom’s Future: International Law in a Changing World 244 (Cambridge: cup 2016) (Noting that “the capacity of [customary international law] to be a ground for rules on procedure and modes of liability is limited because of the domestic origins of these rules.”).

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an analogous instance the icty, in Kupreškić et al., attempted to overcome this issue by emphasizing the role of opinio juris in the absence of sufficient State practice.246 Such methodological creativity strains what might reasonably be expected from customary international law as a formal source, to say nothing of its interaction with the nullum crimen principle. General principles play a key role in various areas of international criminal law,247 in which customary international law does not supply the relevant principles and it is difficult to conceive of how such principles could be established through opinio juris evidenced by the practice of States.248 Confronted with the inability to establish the constituent elements of customary international law, one alternative is to approach a general principle, where appropriate, as such.249 This appears to have been the strategy of the icty in Furundžija, which looked to general principles in the absence of other formal sources of the substantive rule in question.250 The Rome Statute contemplates a similar

246 Kupreškić et al., it-​95-​16-​t, Judgement, para. 527 (Jan. 14, 2000) (“Admittedly, there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements of custom, namely usus or diuturnitas has taken shape. This is however an area where opinio iuris sive necessitatis may play a much greater role than usus. … In light of the way States and courts have implemented it, the Martens Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent.”). 247 See, e.g., discussion supra, Chapter 3.a (Elements of Individual Criminal Responsibility); Chapter 5.c (Standards of Proof); infra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law). 248 See Fan, op. cit. 1075–​1078 (“The launch of contemporary international criminal justice powerfully revived general principles from virtual destitude as a source of law in the new field where law was scarce and guideposts needed. International adjudication of individual rather than state liability for grave wrongs presents the challenge of filling in the basic and general parts of crimes, such as modes of liability, mens rea standards and defences.” (internal citation omitted)). 249 Cf. Niels Petersen, Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation, 23(2) American University International Law Review 275–​310 (2007); Ambos (2013), op. cit. 73-​78, esp. 76 (“The customary law problems may be countered by a stronger emphasis on general principles of law.” (emphasis in original)). 250 Furundžija, it-​95-​17/​1 -​t, Judgement, paras. 177–​178 (Dec. 10, 1998) (“This Trial Chamber notes that no elements other than those emphasised may be drawn from international treaty or customary law, nor is resort to general principles of international criminal law or to general principles of international law of any avail. The Trial Chamber therefore considers that, to arrive at an accurate definition of rape … it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws. Whenever international

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approach to applicable sources of law, providing that the icc shall first apply statutory sources before turning to general principles.251 In light of this provision, the icc Pre-​Trial Chamber has expressly departed from the icty’s treatment of modes of attribution as the domain of customary international law.252 The icc Trial Chamber appears to have relied upon general principles in relation to co-​perpetration as a mode of attribution.253 Treatment of modes of attribution as general principles is consistent with their classification in the Rome Statute as “general principles of criminal law.”254 The doctrinal issue raised by the practice of international courts and tribunals in this area has the potential to shape the available modes of attribution in international criminal law as well as their content in profound ways. This is especially so, for instance, where the icc applies modes of attribution under the Rome Statute not considered to belong to customary international law.255 Whether such modalities are regarded as the exclusive domain of treaty interpretation and application, somehow contributing to customary international law, or reflecting the development of general principles of law, necessarily informs the broader impact of the Rome Statute and icc caselaw on modes

251

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253 2 54 255

criminal rules do not define a notion of criminal law … international courts must draw upon the general concepts and legal institutions common to all the major legal systems of the world.”). Rome Statute (1998), Article 21(1) (Applicable law). Cf. Margaret M. deGuzman, Article 21, Applicable Law, in Otto Triffterer and Kai Ambos [Eds.], Rome Statute of the International Criminal Court: A Commentary 932 et. seq. (München: 3d ed. C.H. Beck 2016); Ambos (2013), op. cit. 73–​74. Katanga and Chui, icc-​0 1/​04-​01/​07, Decision on the confirmation of charges, para. 508 (Sept. 30, 2008) (“The [icty] Appeals Chamber rejected this mode of liability by stating that it did not form part of customary international law. However, under article 21(1)(a) of the [Rome] Statute, the first source of appliable law is the Statute. Principles and rules of international law constitute a secondary source applicable only when the statutory material fails to prescribe a legal solution. Therefore, and since the Rome Statute expressly provides for this specific mode of liability, the question as to whether customary law admits or discards the ‘joint commission through another person’ is not relevant for this Court. This is a good example of the need not to transfer the ad hoc tribunals’ case law mechanically to the system of the Court.”). See Lubanga, icc-​0 1/​04-​01/​06, Judgement pursuant to Article 74 of the Statute (Mar. 14, 2012), Sep. Op. Fulford, para. 10 (commenting on the court’s methodology in utilizing a general principle of law in this case). Rome Statute (1998), Article 25. See discussion supra, nn. 23 (co-​perpetration as not belonging to customary international law); 47 (the third (extended) form of jce as not belonging to customary international law); 97 (residual accessory liability as not belonging to customary international law).

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of attribution in international criminal law.256 As such, the doctrinal issue of the formal source of modes of liability is not merely academic, and has direct bearing on the potential scope of liability of individuals for crimes under international law and, in turn, the responsibility of States to which such conduct may be attributed. 256 See Rome Statute (1998), 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.”).

­c hapter 7

Rules of Attribution in the Law of State Responsibility State responsibility in international law is defined in terms of internationally wrongful acts.1 According to the ilc Articles on State Responsibility, there is an internationally wrongful act of a State when conduct, constituting an act or omission, is “attributable to the State under international law” and “constitutes a breach of an international obligation of the State.”2 An internationally wrongful act is therefore the result of a breach of a primary rule of international law that is attributable to the State, which thereby engages the international responsibility of the State. This chapter examines the secondary rules of attribution in the law of State responsibility. The function of attribution is “to establish that there is an act of the State for the purposes of responsibility.”3 Underlying the concept of attribution is a truism that any act of State “must involve some action or omission by a human being or group.”4 As the pcij noted in its 1923 German Settlers in Poland Advisory Opinion, “States can act only by and through their agents and representatives.”5 The secondary rules of attribution can be viewed as a “set of tests and principles” to identify whether conduct may be attributed to the State.6 The Iran-​U.S. Claims Tribunal explained, in this sense, that, “in order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State.”7 That this assessment requires the application of a set of rules indicates that attribution cannot be presumed, and that there are defined factual circumstances in which conduct is appropriately attributed to the State for purposes of engaging its responsibility under international law. 1 See discussion supra, Chapter 4 (Internationally Wrongful Acts). 2 ilc Articles on State Responsibility, Article 2. 3 Id., Part One, Chapter ii, Commentary, para. 4. 4 Id., Article 2, Commentary, para. 4. 5 German Settlers in Poland (1923), 22. 6 Carlo de Stefano, Attribution in International Law and Arbitration 1 (Oxford: oup 2020). 7 Kenneth P. Yeager v. The Islamic Republic of Iran, Iran-​U.S. Claims Tribunal, Partial Award No. 324-​10199-​1, para. 37 (Nov. 2, 1987), reprinted in 17 Iran-​U.S. Claims Tribunal Reports 92, 101–​102 (1987) (hereinafter “Yeager v. Iran (1987)”).

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The circumstances in which conduct is generally attributable to the State for purposes of responsibility have been summarized by the ilc in the following terms: “the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State.”8 The icj, in its 2007 Application of the Genocide Convention judgment, articulated a similar general statement when assessing the circumstances under which conduct constituting the international crime of genocide could be attributed to the State.9 The following sections identify the secondary rules governing the attribution of conduct to the State by its organs and de facto organs, the attribution of ultra vires conduct of such actors, as well as other exceptional circumstances in which conduct may be attributable to the State. a

Modes of Attribution

State Organs i Most generally, for purposes of attribution, the conduct of any State organ is considered an act of the State under international law.10 The icj articulated this rule in its 2007 Application of the Genocide Convention judgment as one belonging to customary international law in the following terms: [T]‌he well-​established rule, one of the cornerstones of the law of State responsibility, [is] that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State. This rule, which is one of customary international law, is reflected in Article 4 of the ilc Articles on State Responsibility[.]11 The icj referred to this rule in similar terms in its 1999 Advisory Opinion in Difference Relating to Immunity from Legal Process of a Special Rapporteur 8 9

10 11

ilc Articles on State Responsibility, Part One, Chapter ii, Commentary, para. 2. Application of the Genocide Convention (2007), para. 401 (“Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ilc Articles on State Responsibility.”). ilc Articles on State Responsibility, Article 4. Application of the Genocide Convention (2007), para. 385.

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of the Commission on Human Rights.12 Article 4 of the ilc Articles on State Responsibility articulates this rule as follows:



1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.13

This rule of attribution is broad in its formulation and contemplates that organs of the State include all branches of government.14 For purposes of attribution, organs of the State are not limited by seniority or hierarchy and include the range of levels of administration that may arise within the State (i.e., from central to local), reflecting a unitary theory of the State as a subject of international law.15 The broad applicability of this rule of attribution is further reflected in its operation with respect to units of a federal State.16 As formulated in the ilc Articles on State Responsibility, “person or entity” is intended to capture natural and legal persons, as the latter term is defined in the ilc Draft Articles on Jurisdictional Immunities of States and their Property.17 It is well established that the conduct of a State organ amounting to a crime under international law may be attributed to the State to engage its international responsibility.18 The ilc expressly contemplated this possibility in its 12 13 14

15 16 17 18

Difference Relating to Immunity (1999), para. 62 (“According to a well-​established rule of international law, the conduct of any organ of a state must be regarded as an act of that state. This rule [] is of a customary character.”). ilc Articles on State Responsibility, Article 4 (Conduct of organs of a State). Difference Relating to Immunity (1999), para. 62. See also Case Concerning Certain German Interests in Polish Upper Silesia (Merits), pcij, Series A, Judgement No. 7, p. 19 (May 25, 1926) (“From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.”). ilc Articles on State Responsibility, Article 4, Commentary, paras. 7–​8 (citing cases). LeGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, i.c.j. Reports 1999, p. 9, para. 28. ilc Articles on State Responsibility, Article 4, Commentary, para. 12. See discussion supra, Chapter 4.c.ii (Acta Jure Imperii).

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commentary to Article 4 of the ilc Draft Code of Crimes against the Peace and Security of Mankind.19 Another example of the attributability of conduct by State organs amounting to crimes under international law is reflected in the 2012 icj Jurisdictional Immunities of the State judgment, which concerned immunity of Germany from civil litigation in foreign domestic courts.20 While the responsibility of Germany for criminal conduct of its organs was not at issue in the case, the attribution of such conduct was recognized by the icj: Although the present case is unusual in that the illegality of the acts at issue has been admitted by Germany at all stages of the proceedings, the Court considers that this fact does not alter the characterization of those acts as acta jure imperii. … [T]‌he Court has already made clear … that the actions of the German armed forces and other organs of the German Reich giving rise to the proceedings before the Italian courts were serious violations of the law of armed conflict which amounted to crimes under international law.21 The icj left little question that conduct amounting to international crimes, performed by organs of the German State, constituted acta jure imperii and, as such, were attributable to Germany.22 The icj applied the rule at Article 4 of the ilc Articles on State Responsibility in its 2007 Application of the Genocide Convention judgment, which concerned the attribution to Serbia of conduct found by the icty to engage individual criminal responsibility for genocide.23 There, the icj assessed whether genocide perpetrated at Srebrenica was attributable to Serbia by operation of the secondary rule attributing the conduct of State organs to the State.24 The icj concluded that the criminal acts of genocide at issue could not be attributed to 19

20 21

22 23 24

Report of the International Law Commission on the Work of its Thirty-​Sixth Session, [1984] ii(2) YbILC 11, para. 17 (“Draft Code of Offences Against the Peace and Security of Mankind”) (“the criminal responsibility of individuals does not eliminate the international responsibility of States for the consequences of acts committed by persons acting as organs or agents of the State. But such responsibility is of a different nature and falls within the traditional concept of State responsibility.”). Jurisdictional Immunities of the State (2012). Id. paras. 60, 81. See also Jurisdictional Immunities of the State (Germany v. Italy), Application Instituting Proceedings, at 4 (Dec. 23, 2008) (“All of these claims should be dismissed since Italy lacks jurisdiction in respect of acts jure imperii performed by the authorities of the Third Reich for which present‑day Germany has to assume international responsibility.”). See discussion supra, Chapter 4.c.ii (Acta Jure Imperii). Application of the Genocide Convention (2007). Id. para. 385.

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Serbia because they were not performed by “its organs or by persons or entities wholly dependent upon it.”25 As a result, the responsibility of Serbia for an internationally wrongful act could not be engaged on the basis of this rule.26 Questions arise as to whether international crimes may be performed in a State organ’s official capacity.27 There is support for the proposition that crimes under international law are inherently ultra vires in character, such that the operative rules of attribution where international crimes are perpetrated by State organs or instrumentalities are those articulated at Article 4 of the ilc Articles on State Responsibility by operation of Article 7.28 This question of official capacity is discussed at length in Chapter 8.29 Importantly, such an approach does not call into question whether conduct by State organs amounting to a crime under international law is attributable to the State, but rather, concerns which secondary rules of attribution would operate to attribute that conduct to the State. ii De Facto State Organs For purposes of State responsibility, de facto State organs include persons or entities empowered to exercise governmental authority and organs of one State placed at the disposal of another State. The secondary rules applicable to de facto State organs are articulated at Articles 5 and 6 of the ilc Articles on State Responsibility. Where a person or entity is empowered by the State to exercise governmental authority, it is regarded as a de facto organ and its conduct, where it is operating in that capacity, is attributable to the State.30 Article 5 of the ilc Articles on State Responsibility provides this rule as follows: 25 26

27 28 29 30

Id. para. 395. Id. See also Armed Activities on the Territory of the Congo (2005), in which the icj assessed whether conduct by members of the Uganda People’s Defense Force (updf) violative of international humanitarian law and international human rights law was attributable to Uganda. The icj assessed the updf to be a State organ, and the conduct of its individual soldiers and officers to be attributable to Uganda. Id. para. 213. The icj therefore concluded that Uganda was “internationally responsible for violations of international human rights law and international humanitarian law committed by the updf.” Id. para. 220. See discussion infra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). See discussion infra, Chapter 7.a.iii (Ultra Vires Conduct). See discussion infra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). ilc Articles on State Responsibility, Article 5 (Conduct of persons or entities exercising elements of governmental authority).

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The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.31 The touchstone of this rule of attribution is that the person or entity in question is empowered to exercise elements of governmental authority.32 Whether a person or entity is so empowered is a function of the internal law of the State.33 This rule of attribution provides that, where such a relationship exists between a person or entity and the State, such person or entity is regarded as a de facto organ of that State. Conduct performed by a de facto organ in this capacity (i.e., in the exercise of governmental authority) is attributable to the State for purposes of international responsibility.34 A corollary of the applicability of this rule is that, where the status of such person or entity as a de facto organ is established, the broader set of secondary rules of State responsibility is applicable, including the attribution of ultra vires conduct of such person or entity to the State.35 A similar rule of attribution applies where an organ of one State is placed at the disposal of another State to exercise governmental authority of the latter State.36 Article 6 of the ilc Articles on State Responsibility states this rule in the following terms: The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.37 This rule, in effect, adds additional criteria to the rule articulated at Article 5 to clarify the parameters of attribution where a person or entity exercising governmental authority of one State holds the status of an organ of another 31 32 33 34 35 36 37

Id. Id., Commentary, para. 3. Id. paras. 5–​7. James Crawford, State Responsibility: The General Part 126 (Cambridge: cup 2013). de Stefano, op. cit. 49. ilc Articles on State Responsibility, Article 6 (Conduct of organs placed at the disposal of a State by another State). Id.

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State.38 The conduct of such organ is attributable to the former State where it has been “placed at the disposal of” that State and the conduct at issue is performed in that capacity.39 By contrast, where such organ retains elements of authority or government control of the sending State, its conduct is not attributable to the receiving State by operation of this rule.40 In its 2007 Application of the Genocide Convention judgment, discussed above, the icj assessed whether conduct found by the icty to engage individual criminal responsibility for genocide could be attributed to Serbia by operation of the rules articulated at Articles 5 and 6 of the ilc Articles on State Responsibility.41 The icj in that case found that the international crimes at issue were not committed by persons or entities which, while not organs of the State, were empowered by it to exercise elements of governmental authority.42 The icj similarly concluded that those crimes were not committed by organs of another State placed at Serbia’s disposal.43 The attribution of conduct of de facto State organs again raises the question of whether international crimes are properly regarded as ultra vires.44 As discussed immediately below, the rules of attribution applicable to ultra vires conduct of de facto State organs are those articulated at Articles 5 and 6 of the ilc Articles on State Responsibility, as appropriate, by operation of Article 7.45 This approach does not call into question whether conduct by a de facto State organ amounting to a crime under international law is attributable to the State, but rather, concerns which secondary rules of attribution would operate to attribute such conduct to the State. The question of official capacity is discussed in Chapter 8.46

38 39 40 41 42 43 44 45 46

Id., Commentary, para. 5. Id. para. 6 (citing the Chevreau case, unriaa, vol. ii (Sales No. 1949.v.1), p. 1113, at p. 1141 (1931) (finding that “the British Government cannot be held responsible for negligence by its Consul in his capacity as the person in charge of the Consulate of another Power.”)). Id. para. 7 (citing sources). Application of the Genocide Convention (2007), para. 414 (citing Articles 5 and 6 of the ilc Articles on State Responsibility). Id. Id. See discussion infra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). See discussion infra, Chapter 7.a.iii (Ultra Vires Conduct). See discussion infra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State).

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Ultra Vires Conduct iii The conduct of a State organ, or a de facto State organ, acting ultra vires (i.e., in breach of the rules to which it is subject), or “under the color of law,” is nevertheless attributable to the State.47 The ilc explained this result in its commentary to Article 4 of the Draft Articles on State Responsibility: Where such a person acts in an apparently official capacity, or under colour of authority, the actions in question will be attributable to the State. … The case of purely private conduct should not be confused with that of an organ functioning as such but acting ultra vires or in breach of the rules governing its operation. In this latter case, the organ is nevertheless acting in the name of the State.48 The attribution of ultra vires conduct in breach of the international obligations of the State may be considered in relation to, but as distinct from, the well-​established principle that a State cannot rely on lawfulness under internal law to excuse breach of an international obligation.49 Attribution of conduct is distinct from the question of lawfulness, meaning that the unlawful character of a State organ’s conduct does not shield the State from attribution of such conduct,50 provided that such conduct is performed in the name of the State. 47 48 49

50

ilc Articles on State Responsibility, Article 7. Id., Article 4, Commentary, para. 13. See, e.g., Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, pcij, Series A/​B, No. 44, Advisory Opinion, 24–​25 (Feb. 4, 1932) (“[A]‌ccording to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations duly accepted. … [C]onversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force. … The application of the Danzig Constitution may [] result in the violation of an international obligation incumbent on Danzig towards Poland, whether under treaty stipulations or under general international law. … However, in cases of such a nature, it is not the Constitution and other laws, as such, but the international obligation that gives rise to the responsibility of the Free City.”); Vienna Convention on the Law of Treaties, Article 27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”); ilc Articles on State Responsibility, Article 3 (“The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”). See Elettronica Sicula S.p.A. (elsi), Judgment, i.c.j. Reports 1989, p. 15, para. 73. Cf. ilc Articles on State Responsibility, Article 7, Commentary, para. 10.

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This rule is articulated at Article 7 of the ilc Articles on State Responsibility in the following terms: The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.51 The touchstone of this rule of attribution is that the State organ or de facto State organ whose conduct is at issue “acted with apparent authority” such that its conduct is regarded as an act of the State.52 This qualifier distinguishes conduct under color of law from purely private conduct, such that only the former is attributable to the State under this rule. The scope of the rule of attribution of ultra vires conduct is reflected in the reference of Article 7 to an “organ of the State” as well as “a person or entity empowered to exercise elements of the governmental authority,” which aligns with the subjects of Articles 4, 5, and 6 of the ilc Articles on State Responsibility. It follows that this rule of attribution operates in relation to both State organs and de facto State organs (those persons or entities whose conduct is attributable to the State by operation of the rules articulated at Articles 5 and 6 of the ilc Articles on State Responsibility).53 Applicability of the ultra vires rule to attribute to the State breaches of obligations under international human rights law and international humanitarian law is well established. For example, in Armed Activities on the Territory of the Congo (Congo v. Uganda), the icj assessed whether conduct by members of the Uganda People’s Defense Force (updf) violative of international human 51 52

53

ilc Articles on State Responsibility, Article 7 (Excess of authority or contravention of instructions). Id., Commentary, para. 8. See, e.g., Sixth Report on State Responsibility (García Amador, Special Rapporteur), U.N. Doc. a/​c n.4/​134, [1961] ii YbILC 1 et seq., at 52, U.N. Doc. a/​ cn.4/​s er.a/​1 961/​Add. 1 (Commentary to Article 12) (distinguishing “between acts ultra vires that may give rise to the international responsibility of the State [] and situations in which, although the organs or officials may to some extent have relied on their official position or made use of the means available to them by virtue of that position, yet the very nature of the manner in which they exceeded their competence presupposes an act wholly outside their functions and powers.”). Cf. ilc Articles on State Responsibility, Article 4, Commentary, para. 13. Id., Commentary, para. 9 (however, the rule articulated at Article 7 is not per se applicable to other circumstances in which conduct may be attributable to the State, as described at Articles 8–​10 of the ilc Articles on State Responsibility).

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rights law and international humanitarian law was attributable to Uganda.54 The icj assessed the updf to be a State organ, and the conduct of its individual soldiers and officers to be attributable to Uganda.55 In an attempt to shield itself from responsibility for such conduct, Uganda averred that the personnel in question had acted ultra vires and that their conduct was not attributable to Uganda for purposes of engaging its responsibility. The icj quickly disposed of this argument: It is furthermore irrelevant for the attribution of their conduct to Uganda whether the updf personnel acted contrary to the instructions given or exceeded their authority. According to a well-​established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol i additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.56 Though the icj referred to the rule of attribution of ultra vires conduct in the context of armed conflict, and identified specific provisions in several international humanitarian law instruments which themselves express the rule, the court also affirmed the customary character of the rule and applied the rule to attribute to Uganda a range of unlawful conduct arising from breaches of other instruments. In so doing, the icj concluded that Uganda was internationally responsible for violations of international human rights law and international humanitarian law by the updf.57 This same rule has been articulated by the IACtHR, finding the ultra vires character of human rights violations perpetrated by State organs to be irrelevant for purposes of State responsibility.58

54 55 56 57 58

Armed Activities on the Territory of the Congo (2005). Id. para. 213. Id. para. 214. Id. para. 220. Velasquez Rodriguez Case (1988), paras. 169–​170 (“Whenever a State organ, official or public entity violates [the Convention], this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.”). Accord. Cruz Sánchez et al. v. Perú (2015), para. 281.

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There is support for the proposition that crimes under international law fall beyond the official capacity of a State organ.59 The rationale for this position, which arises most frequently in the context of immunity, is discussed at length in Chapter 8.60 If conduct by a State organ, acting under color of law, amounting to an international crime is not properly regarded as official because that conduct exceeds normal State functions, the result is that such conduct would be regarded as ultra vires from the perspective of international law. This same approach is in principle applicable also to the conduct of de facto State organs acting in such capacity. The practical effect of such an ultra vires characterization of crimes under international law is that, by operation of the rule provided at Article 7 of the ilc Articles on State Responsibility, the rules articulated at Articles 4, 5, and 6 would, as appropriate, nevertheless serve as the applicable rules of attribution where crimes under international law are at issue. Other Circumstances in which Conduct may be Attributable to the State 1 Instruction of the State or under Its Direction or Control Generally, the conduct of private persons or entities is not attributable to the State under international law.61 Under certain circumstances, however, the conduct of a person or entity that is not an organ or de facto organ of the State may nevertheless be regarded as an act of the State. Such circumstances pertain where a person or entity is operating at the instruction, or under the

iv

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See, e.g., Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction (Roman A. Kolodkin, Special Rapporteur), U.N. Doc. a/​c n.4/​631, para. 57 (June 10, 2010) (“The viewpoint, whereby grave crimes under international law cannot be considered as acts performed in an official capacity, and immunity ratione materiae does not therefore protect from foreign criminal jurisdiction exercised in connection with such crimes, has become fairly widespread.” (internal citation omitted)) (hereinafter, “Second Report on Immunity of State Officials (Roman A. Kolodkin, Special Rapporteur)”). Cf. Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46(4) Georgetown Journal of International Law 1151, 1199 (2015); Chemène I. Keitner, Transnational Limitation: Jurisdiction and Immunities, in Dinah Shelton [Ed.], The Oxford Handbook of International Human Rights Law 807 (Oxford: oup 2013); Beth Stephens, Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses, 44(5) Vanderbilt Journal of Transnational Law 1163, 1179–​1180 (2011). See discussion infra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). ilc Articles on State Responsibility, Article 8, Commentary, para. 1; id., Article 11, Commentary, para. 2.

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direction or control, of the State.62 This rule is reflected at Article 8 of the ilc Articles on State Responsibility: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.63 The icj indicated that this rule reflects customary international law in its 2007 Application of the Genocide Convention judgment.64 The two scenarios contained in the rule, articulated by the icj in Military and Paramilitary Activities in and against Nicaragua, reflect separate degrees of State association with the actor in question. First, where a person or entity carries out conduct at the instruction of the State, such conduct is attributable to the State.65 Second, in the absence of such instruction, where a person or entity is operating under the “direction or control” of the State, that actor may be regarded as acting on behalf of the State such that conduct related to the State’s direction or control is attributable to the State.66 This so-​called “effective control” test is generally regarded to be the appropriate standard for attribution of conduct by persons or entities operating under the direction or control of the State, notwithstanding the application of a more sweeping “overall control” test by the icty in the context of individual criminal responsibility.67 The touchstone of this rule of attribution is that the conduct at issue is sufficiently related to the State

62 63 64 65

66

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See Military and Paramilitary Activities in and against Nicaragua (1986), paras. 109, 115. ilc Articles on State Responsibility, Article 8 (Conduct directed or controlled by a State). Application of the Genocide Convention (2007), paras. 398, 407. Military and Paramilitary Activities in and against Nicaragua (1986), para. 115 (“even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State.”). Accord. ilc Articles on State Responsibility, Article 8, Commentary, para. 2. Id. para. 109 (“What the Court has to determine at this point is whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. … Yet … there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf.”). Accord. ilc Articles on State Responsibility, Article 8, Commentary, para. 7. Cf. Tadić, it-​94-​1-​a , Judgement, para. 145 (July 15, 1999). See Application of the Genocide Convention (2007), paras. 402–​407 (emphasizing this distinction).

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such that international law regards that conduct to have been performed in the name of that State. While conduct authorized by the State satisfies this rule,68 conduct performed by a person or entity under the effective control of the State that exceeds the scope of its authorization (i.e., ultra vires) raises questions as to whether that conduct is sufficiently related to its authorization to be regarded as an act of the State.69 The icj, in its 2007 Application of the Genocide Convention judgment, applied the rule at Article 8 of the ilc Articles on State Responsibility to assess whether conduct found by the icty to engage individual criminal responsibility for genocide could be attributed to Serbia.70 The icj in that case found that it had not been established that the international crime of genocide at issue was “committed on the instructions or under the direction of organs of the respondent State, nor that the Respondent exercised effective control over the operations in the course of which … the crime … [was] perpetrated.”71 Notwithstanding its ultimate conclusion, the reasoning by the icj illustrates the circumstances under which an international crime performed by a person or entity that is not an organ or de facto organ of the State, but which operates at the instruction or under the direction or control of the State, may be attributed to the State for purposes of engaging State responsibility.72 This result is distinct from the question of whether crimes under international law should be regarded as inherently private in character, a proposition discussed further in Chapter 8.73 2

Exercise of Governmental Authority in the Absence of Official Authority One exceptional circumstance presenting complicated questions for attribution arises where governmental authority is carried out by persons or entities in the absence of the official authority of a State. This scenario may arise, for example, where regular governmental authority is not functioning, for

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ilc Articles on State Responsibility, Article 8, Commentary, para. 2. Id. para. 8. Application of the Genocide Convention (2007), paras. 396–​413. Id. para. 413. Id. para. 419 (“[I]‌n the particular context of the application of the law of international responsibility in the domain of genocide, if it were established that a genocidal act had been committed on the instructions or under the direction of a State, the necessary conclusion would be that the genocide was attributable to the State, which would be directly responsible for it.”). See discussion infra, Chapter 8.d (Crimes under International Law Performed in a Private Capacity).

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example, during the course of armed conflict, occupation, or revolution, or where such authority is being restored.74 The conduct of persons or individuals exercising elements of de facto government authority may be attributed to the State under such circumstances where certain conditions are met—​this rule is articulated at Article 9 of the ilc Articles on State Responsibility: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.75 The first condition of this rule looks to whether the conduct in question is related to the exercise of elements of governmental authority.76 The second condition requires that such authority is carried out in the partial or complete absence of official authority.77 The third condition assesses whether the circumstances “called for,” or somehow justified, such exercise of elements of governmental authority.78 Where these conditions are satisfied, the relevant conduct of persons or entities may be regarded as acts of the State and attributed to the State for purposes of responsibility. In its 2007 Application of the Genocide Convention judgment, the icj considered whether conduct found by the icty to engage individual criminal responsibility for genocide could be attributed to Serbia by operation of the rule articulated at Article 9 of the ilc Articles on State Responsibility.79 The icj in that case found that “[t]‌he acts constituting genocide were not committed by persons … in fact exercising elements of the governmental authority in the absence or default of the official authorities of the Respondent.”80 The icj’s reasoning indicates that an international crime may be attributed to the State under the circumstances contemplated by Article 9 if the conditions set out in that provision are satisfied.

74 75 76 77 78 79 80

ilc Articles on State Responsibility, Article 9, Commentary, para. 1. Id., Article 9 (Conduct carried out in the absence or default of the official authorities). Id., Commentary, para. 4 (citing Aguilar-​Amory and Royal Bank of Canada Claims (Tinoco case) (Great Britain v. Costa Rica), unriaa, vol. i (Sales No. 1948.v.2), p.307, at pp. 381–​382). Id. para. 5. Id. para. 6 (citing the Sambiaggio case, unriaa, vol. x (Sales No. 60.v.4), p. 499, at p. 512 (1904)). Application of the Genocide Convention (2007), para. 414. Id. (citing ilc Articles on State Responsibility, Article 9).

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3 Insurrection Another exceptional circumstance, which also presents complicated attribution questions, is insurrection. The general rule with respect to an insurrection movement is that its conduct is not attributable to the State because there is no basis upon which to render such conduct an act of the State.81 This general rule is based on a presumption that an insurrection movement remains separate and distinct from the organization of the State. However, there may be circumstances that deviate from this presumption which may render its conduct attributable to the State. For example, where an insurrection movement succeeds and becomes the new government of a State, its conduct may be attributed to that State.82 Similarly, where a movement establishes a new State, the conduct of that movement may be attributable to that new State.83 This rule is articulated at Article 10 of the ilc Articles on State Responsibility:



1. The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law. 2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-​existing State or in a territory under its administration shall be considered an act of the new State under international law. 3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.84

When contemplating application of this rule in the context of the crime of genocide in its 2015 Application of the Genocide Convention judgment, the icj did not pronounce on whether this rule reflects customary international law.85 In that case, the icj was presented in part with a claim by Croatia against Serbia that acts of genocide by a “movement” were attributable to Serbia by operation of the rule articulated at Article 10(2).86 The icj found that it did

81 82 83 84 85 86

ilc Articles on State Responsibility, Article 10, Commentary, para. 2. Id. paras. 4–​5. Id., Article 10. Id. Application of the Genocide Convention (2015), paras. 104–​105 (with particular respect to Article 10(2) of the ilc Articles on State Responsibility). Id. para. 105.

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not have jurisdiction over the claim, which was brought under the Genocide Convention, because the Convention only entered into force with respect to Serbia after the conduct at issue; because such conduct could not have violated provisions of the Genocide Convention in relation to Serbia, even if it constituted a violation of customary international law attributable to Serbia, Article 10(2) could not operate to bring that conduct within the scope of the Convention.87 Even so, the rule articulated at Article 10 of the ilc Articles on State Responsibility would appear in principle to be applicable to crimes under international law for purposes of attribution to the State. 4 Conduct Acknowledged and Adopted by the State Finally, a State may acknowledge and adopt as its own conduct that is not otherwise attributable to it. This rule is consistent with the general principle that conduct by persons or entities not acting on behalf of the State is not considered an act of the State.88 The icj applied this rule of attribution in United States Diplomatic and Consular Staff in Tehran with regard to the occupation of the U.S. Embassy and detention of U.S. diplomatic and consular staff as hostages by Iranian militants.89 Ayatollah Khomeini announced a policy approving of and maintaining this situation with other organs of the Iranian State, which “translated continuing occupation of the Embassy and detention of the hostages into acts of State.”90 The rule illustrated by this reasoning is articulated at Article 11 of the ilc Articles on State Responsibility: Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.91

87 88 89 90 91

Id. The icj noted that the conduct at issue could only “at most” have violated the prohibition of genocide under customary international law, however this was not sufficient to establish jurisdiction under the Genocide Convention. ilc Articles on State Responsibility, Article 11, Commentary, para. 2. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, p. 3 (hereinafter, “United States Diplomatic and Consular Staff in Tehran (1980)”). Id. para. 74 (“The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible.”). ilc Articles on State Responsibility, Article 11 (Conduct acknowledged and adopted by a State as its own).

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Attribution by operation of this rule is distinct from whether the conduct in question is internationally wrongful, a question viewed from the perspective of the international legal obligations of the adopting State.92 The icj considered application of this rule in assessing whether conduct found by the icty to engage individual criminal responsibility for genocide could be attributed to Serbia in its 2007 Application of the Genocide Convention judgment.93 Referring to Article 11, the icj concluded that “the Respondent has not acknowledged and adopted the conduct of the perpetrators of the acts of genocide as its own.”94 The 2012 icj Jurisdictional Immunities of the State judgment also warrants mention in this context. In that case, Germany expressly acknowledged the conduct in question as acts of the State.95 The international crimes underlying the dispute in that case would presumably have been attributable to Germany as conduct by organs of the State,96 meaning that Germany’s conduct in that case would not exemplify the rule at Article 11 because the conduct was otherwise attributable to the State. Even so, Germany’s acknowledgment of its responsibility for the underlying international crimes throughout those proceedings provides a different illustration of how a State might satisfy the rule at Article 11.97 b

Conclusions

The law of State responsibility provides that the international responsibility of the State may arise for an internationally wrongful act where conduct, constituting an act or omission, is attributable to the State under international law and constitutes a breach of an international obligation of the State.98 Attribution operates “to establish that there is an act of the State for the

92 93 94 95

96 97 98

Id., Commentary, para. 7. Application of the Genocide Convention (2007), para. 414. Id. Jurisdictional Immunities of the State (2012), paras. 52–​53, 60, 81. See also Jurisdictional Immunities of the State (Germany v. Italy), Application Instituting Proceedings, at 4 (Dec. 23, 2008) (“All of these claims should be dismissed since Italy lacks jurisdiction in respect of acts jure imperii performed by the authorities of the Third Reich for which present‑day Germany has to assume international responsibility.”). See discussion supra, Chapter 7.a.i (State Organs). This is not to suggest that Germany would have assumed responsibility for the underlying conduct if it were not otherwise attributable to it, but only to illustrate how State conduct could satisfy the rule articulated at Article 11 of the ilc Articles on State Responsibility. See discussion supra, Chapter 4.a (Elements of State Responsibility).

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purposes of responsibility.”99 The secondary rules of attribution serve to identify the circumstances in which such conduct is properly regarded as an act of the State. As noted at the outset of this chapter, “in order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State.”100 The secondary rules identified above provide modalities by which a State’s association with the agent behind impugned conduct is regarded to be sufficient for their conduct to be attributed to the State for purposes of international responsibility. i Secondary Rules of General Applicability The foregoing discussion illustrates that the ordinary secondary rules of State responsibility apply when assessing State responsibility arising from individual conduct amounting to a crime under international law.101 The icj has explained in this context that “the Court applies the rules of general international law on the responsibility of States for internationally wrongful acts.”102 The ilc expressed this same conclusion in its commentary to the Articles on State Responsibility, where it emphasized that neither the gravity of the breach of an international law obligation, nor the peremptory character of the ­primary rule at issue, impacts the applicable secondary rules of State responsibility.103 These positions are borne out in the limited judicial practice contemplating attribution of international criminal conduct to the State. With respect to secondary rules of attribution in particular, the icj has explicitly articulated this rule in relation to the international crime of genocide: The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ilc Articles on State Responsibility.104 99 ilc Articles on State Responsibility, Part One, Chapter ii, Commentary, para. 4. 100 Yeager v. Iran (1987), 101–​102. 101 See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). 102 Application of the Genocide Convention (2015), para. 128. 103 ilc Articles on State Responsibility, Article 12, Commentary, para. 6. 104 Application of the Genocide Convention (2007), para. 401.

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Practice indicates that the secondary rules of attribution in the law of State responsibility are sufficient to identify the circumstances in which individual criminal conduct is attributable to the State.105 It has been suggested, to the contrary, that some additional element of “State policy” is required in order for breach of a primary rule giving rise to individual criminal responsibility to be attributed to the State.106 Support for this proposition is ostensibly drawn from the discussion of duality of responsibility by the icty Trial Chamber in Furundžija.107 There, the icty observed that, “[u]‌nder 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.”108 The Trial Chamber added: “If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility.”109 However, it is unclear that this dicta in Furundžija was intended to suggest a limitation to the operation of the secondary rules of attribution in the law of State responsibility. The Trial Chamber’s latter observation that an “extensive practice” of torture may constitute “a particularly grave wrongful act” may perhaps be better interpreted as additive to, rather than a limitation of, its initial observation that “State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers.” The statement does not appear to provide strong support for the proposition that an additional element of “State policy” is required for individual conduct constituting a crime under international law to be attributed to the State. Even if it did, a court with competence to determine State responsibility might not attach significant weight to the views of a tribunal adjudging individual criminal responsibility on the applicability of secondary rules of State responsibility.110 1 05 See discussion supra, Chapter 7.a (Modes of Attribution). 106 See, e.g., Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 631–​648 (2007). See also Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 46–​52 (Leiden: Martinus Nijhoff 2009). 107 Id. See Furundžija, it-​95-​17/​1 -​t, Judgement, para. 142 (Dec. 10, 1998). 108 Id. 109 Id. 110 See Application of the Genocide Convention (2007), para. 403 (“[T]‌he Court attaches the utmost importance to the factual and legal findings made by the icty in ruling on the criminal liability of the accused before it. … The situation is not the same for positions

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It bears noting—​for purposes of distinction—​that breaches of certain primary rules (i.e., obligations arising from peremptory norms) may give rise to particular consequences under international law.111 These consequences are described in detail in Chapter 9. Such consequences are, however, distinct from the secondary rules governing attribution for purposes of establishing State responsibility.112 There does not appear to be a basis under present international law to deviate from the secondary rules of attribution of general applicability when attributing to the State breaches of obligations arising from primary rules whose breach also gives rise to individual criminal responsibility. The consequences arising for individuals and States for breach of primary rules that may be attributed to each subject are governed by secondary rules distinct from those governing attribution, and the former do not appear to have bearing on the operation of the latter. ii Actions and Omissions The discussion above identified the secondary rules of attribution of general applicability in the law of State responsibility. Examples of the operation of these secondary rules discussed above pertained to their application for purposes of State responsibility arising concurrently with individual criminal responsibility, that is, through attribution of crimes under international law to the State. Breach of an obligation of the State arising in relation to crimes under international law (e.g., by failing to prevent or punish crimes under international law), which may give rise to State responsibility that is complementary to individual criminal responsibility,113 does not appear to lend itself to similar analysis of secondary rules of attribution. This may be explained by the practical reality that, where breach of such an obligation is at issue, the non-​performance of that obligation by the State would generally arise from an omission rather than an affirmative action. The breach of an obligation through an omission by the State may not give rise to analysis of attribution in the same way as breach of an obligation established by affirmative actions. It is well established that an omission may give rise to the responsibility of the State for breach of an international obligation.114 While the distinction

111 1 12 113 114

adopted by the icty on issues of general international law which do not lie within the specific purview of its jurisdiction[.]”). See, e.g., ilc Articles on State Responsibility, Articles 40–​ 41. See discussion infra, Chapter 9.b (Consequences of an Internationally Wrongful Act). Id., Article 12, Commentary, para. 6. See discussion supra, Chapter 4.d (Complementary State Responsibility). ilc Articles on State Responsibility, Article 2 (defining an internationally wrongful act in terms of “conduct consisting of an action or omission.”); id., Article 1, Commentary,

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between action and omission may at times seem academic, establishing breach of an international obligation on the basis of an omission, vice action, is a distinction of practical significance to the application of secondary rules of attribution. The icj, in its 2007 Application of the Genocide Convention judgment, distinguished between obligations, the breach of which may be established by an action, and those that may be breached by an omission, in terms particularly relevant to dual responsibility: [C]‌omplicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission[.]115 The court described this distinction between “negative obligations” to refrain from prohibited conduct and “positive obligations” to prevent such conduct as “so significant as to make it impossible to treat the two types of violation in the same way.”116 One aspect of this differentiation in treatment is borne out in the

para. 8 (“the term ‘act’ is intended to encompass omissions.”). Accord., e.g., Corfu Channel (1949), Diss. Op. Winiarski, at 52 (“In international law, every State is responsible for an unlawful act, if it has committed that act, or has failed to take the necessary steps to prevent an unlawful act, or has omitted to take the necessary steps to detect and punish the authors of an unlawful act. Each of these omissions involves a State’s responsibility in international law, just like the commission of the act itself. This general principle is naturally capable of applications that differ according to the infinite variety of facts accompanying the act contrary to international law.”). Cf. Corfu Channel (1949), 23 (“These grave omissions involve the international responsibility of Albania.”); United States Diplomatic and Consular Staff in Tehran (1980), paras. 63–​67, esp. 67 (“[I]‌naction of the Iranian Government by itself constituted clear and serious violation of Iran’s obligations to the United States under the provisions of … the 1961 Vienna Convention on Diplomatic Relations, and … the 1963 Vienna Convention on Consular Relations.”); Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, Decision of 30 April 1990, xx riaa 215–​284, § 88, U.N. Sales No. E/​F.93.v.3 (1994) (hereinafter, “Rainbow Warrior (1990)”). See also Crawford, op. cit. 217–​219. 115 Application of the Genocide Convention (2007), para. 432. 1 16 Id. (The Court referred also to the distinction between an accessory’s knowledge of a principal’s criminal acts for purposes of complicity and the circumstances sufficient to engage a State’s responsibility for breach of an obligation of prevention.).

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application of secondary rules of attribution. As one commentator observes, this differentiation is at base a practical one: [G]‌iven the lack of any concrete acts, the operation of the rules of attribution of conduct in relation to omissions operates at a greater level of abstraction. In the absence of a positive act, necessarily performed by an actor, the operation of the rules of attribution in relation to omission can only operate by means of identifying the obligation breached, and therefore, the subject by which it is owed.117 Where breach of an obligation to prevent or punish criminal conduct is established by an omission on the part of the State, the above assessment follows because there would generally be no affirmative conduct to which to apply the secondary rules of attribution for purposes of establishing the responsibility of the State for such breach. The proposition that State responsibility complementary to individual criminal responsibility, arising from breach of an obligation associated with the prevention or punishment of international crimes through omission by the State, may not give rise to the same kind of attribution analysis as concurrent State responsibility is reflected in practice. For instance, in its 2007 Application of the Genocide Convention judgment, the icj distinguished between acts of genocide by persons or organs whose conduct is attributable to the State and that State’s breach of its obligations to prevent such conduct and punish its perpetrators.118 The court explained that “these are two distinct internationally wrongful acts attributable to the State, and both can be asserted against it as bases for its international responsibility.”119 However, while the question of whether prohibited acts of genocide were performed by persons or entities whose conduct is attributable to the State gave rise to an extensive analysis of secondary rules of attribution, the court undertook no parallel analysis of attribution for purposes of establishing Serbia’s responsibility for breach of its obligations erga omnes under the Genocide Convention for failing to prevent and punish those same acts of genocide.120 This same treatment of attribution is reflected in the 2012 Questions Relating to the Obligation to Prosecute or Extradite judgment, in which the icj found that 117 Franck Latty, Actions and Omissions, in James Crawford et al. [Eds.], The Law of International Responsibility 361 (Oxford: oup 2010). 118 Application of the Genocide Convention (2007), paras. 382–​383. 119 Id. para. 383. 120 Compare id. paras. 379–​424, with id. paras. 425–​450.

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Senegal had breached obligations erga omnes under the Torture Convention by failing to investigate and prosecute the case of Hissène Habré.121 While the court made passing reference to crimes under international law attributable to Habré,122 it undertook no attribution analysis with regard to Senegal’s international responsibility arising from breach of its obligations under the Torture Convention to investigate and prosecute those crimes.123 The icj’s treatment of attribution in relation to the breach of obligations erga omnes associated with the investigation and prosecution of perpetrators of torture under the Torture Convention in its Questions Relating to the Obligation to Prosecute or Extradite judgment mirrored its treatment of attribution in relation to the breach of obligations erga omnes associated with the prevention and punishment of genocide under the Genocide Convention in its 2007 Application of the Genocide Convention judgment. From these examples, a practical distinction is identifiable in the application of secondary rules of attribution with respect to State responsibility ­arising concurrently with, and complementary to, individual criminal responsibility. While attribution of individual criminal conduct to the State necessarily requires clear application of secondary rules of attribution to assess whether such conduct may engage State responsibility concurrently with that of the individual, attribution of breaches of ancillary obligations erga omnes of the State in relation to such conduct, established through omission, does not appear to entail a similar application of secondary rules of attribution. This treatment of attribution is a function of such ancillary obligations as consisting of positive duties,124 whose breach may be established in general by omissions rather than affirmative actions.125 Accordingly, an omission by the State in this regard does not seem to require explicit application of secondary rules of attribution in order to establish State responsibility for breach of an obligation by such omission. However, because attribution is an element of State responsibility without which State responsibility cannot be established,126 by finding State responsibility for such breaches, attribution must at minimum be 1 21 Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69, 88, 117. 122 See, e.g., id. paras. 52–​55 (referring to the existence of “a dispute [] between the Parties regarding the obligation for Senegal, under customary international law, to take measures in respect of the above-​mentioned crimes attributed to Mr. Habré.”). 123 Id. paras. 71–​117. 124 See discussion supra, Chapter 2.a.ii (State-​Directed Rules); Chapter 4.d.i (Obligations Erga Omnes). 125 Cf. Crawford, op. cit. 217–​219. 126 ilc Articles on State Responsibility, Article 2.

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presumed or implied, even in the absence of an explicit analysis applying the secondary rules of attribution. The distinction between “negative obligations” and “positive obligations” has implications beyond attribution. As discussed in Chapter 5, this distinction may influence the standard of proof applied by an adjudicating court.127 Notably, this distinction may also inform the content of consequences for the responsible State arising from breach.128 The consequences of internationally wrongful acts are discussed in Chapter 9. 1 27 See discussion supra, Chapter 5.c (Standards of Proof). 128 Crawford, op. cit. 218; Latty, op. cit. 362–​363.

­c hapter 8

Convergence and Divergence in Attribution a

Principles of Attribution: Culpability and Objectivity Distinguished

The different bodies of secondary rules of attribution in the fields of individual and State responsibility serve the same practical function: to determine whether the relationship between a subject of international law and impugned conduct is sufficient to give rise to the responsibility of that subject under international law. For the individual, and in particular to engage individual criminal responsibility, the relevant secondary rules provide modalities of individual participation in prohibited conduct sufficient to trigger criminal responsibility for that conduct, i.e., where an individual commits, encourages, or assists such conduct, or is otherwise responsible by operation of superior responsibility.1 By contrast, for the State, and in particular to engage its international responsibility, the relevant secondary rules provide modalities of State association with the agent behind conduct in breach of an international obligation sufficient to give rise to the international responsibility of the State for that conduct, i.e., where the agent performing such conduct is a State organ or de facto State organ, or where other circumstances pertain in which conduct is properly regarded as an act of the State, including where conduct is performed ultra vires.2 The secondary rules of attribution of individual and State responsibility may serve the same practical function, but their modalities indicate fundamental differences in their operation.3 The principle of culpability animates the operation of the secondary rules of attribution for purposes of individual responsibility for international crimes.4 The imt at Nuremberg referred in this 1 See discussion supra, Chapter 6 (Rules of Attribution in International Criminal Law). 2 See discussion supra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). 3 Compare discussion supra, Chapter 6 (Rules of Attribution in International Criminal Law), with discussion supra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). See, e.g., Shabtai Rosenne, State Responsibility and International Crimes: Further Reflections on Article 19 of the Draft Articles on State Responsibility, 30(1 & 2) New York University Journal of International Law and Policy 145, 162 (1997) (“[T]‌he attribution of an illegal act to a State rests on different propositions than the attribution of criminal responsibility to an individual for the same act.”). 4 Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 41–​42 (Oxford: 3d ed. oup 2014); Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part 93–​95 (Oxford: oup 2013).

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sense to “well-​settled legal principles, one of the most important of which is that criminal guilt is personal, and that mass punishments should be avoided.”5 It is in this sense that international criminal law differentiates between principals and accessories and conceives of certain modalities of liability that are unique to the organizational context in which international crimes may be perpetrated.6 Secondary rules of attribution in international criminal law capture the moral culpability of actors, which embody what may be conceived as a differentiated model of participation in crime and a normative model of principalship.7 Accordingly, these rules look not only to the relevant physical conduct of an individual, but also, to the way in which that conduct was carried out—​whether the individual manifested the requisite mens rea to engage their liability. This focus of international criminal law on the allocation of fault among actors is characteristic of criminal law more generally, one that informs the assignment of punishment commensurate with the degree of responsibility borne by an actor.8 The secondary rules of attribution in the law of State responsibility are defined, in contrast, by their objective character. The objective conception of an internationally wrongful act, and in particular the element of attribution, is generally attributed to Anzilotti and seen as a practical reality distinguishing the responsibility of States from that of individuals: “Malice and fault,” in the proper senses of the words, express human will as a psychological fact, and one cannot therefore speak of them except in relation to the individual. The point is, subsequently, whether an action contrary to international law, in order to be imputable to the State, has 5 imt Judgment and Sentences (1946), 251. 6 Miles Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29(3) Leiden Journal of International Law 879, 891 (2016). 7 Id. 8 See, e.g., Kupreškić et al., it-​95-​16-​t, Judgement, para. 852 (Jan. 14, 2000) (“The sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.”); Akayesu, ictr-​96-​4-​a , Judgement, para. 413 (June 1, 2001) (“[T]‌he Appeals Chamber endorses the well-​established principle applied by the Appeals Chamber of icty whereby ‘the litmus test for the appropriate sentence is the gravity of the offence’.”). See also icc rpe, Rule 145 (“In its determination of the sentence … the Court shall [b]ear in mind that the totality of any sentence of imprisonment and fine … must reflect the culpability of the convicted person.”). For discussion of factors relevant to the gravity of an offence, see, e.g., Karadžić, it-​95-​5/​18-​t, Public Redacted Version of Judgement Issued on 24 March 2016, paras. 6045–​6050 (Mar. 24, 2016).

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to be caused by malice or of fault by individual agents; in other words, whether the latters’ malice or fault is a condition laid down by the law in order for particular acts to lead to particular consequences for the State.9 Put differently, in the field of State responsibility, a subjective element is only relevant insofar as it must be established with respect to an individual under a given primary rule in order to determine the fact of breach of that primary rule. This approach is reflected in the Articles on State Responsibility, and the ilc articulated this same position in similar terms in its commentary: A related question is whether fault constitutes a necessary element of the internationally wrongful act of a State. This is certainly not the case if by “fault” one understands the existence, for example, of an intention to harm. In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of a State that matters, independently of any intention.10 The secondary rules of attribution in the field of State responsibility do not share the preoccupation with culpability that defines the secondary rules of attribution in international criminal law. The former seek only to determine whether the State is associated with the actors responsible for impugned conduct; these rules are unconcerned with how fault may be determined and allocated on the basis of participation in such impugned conduct. It is in this sense that the secondary rules of attribution for purposes of State responsibility have an objective character which is not rooted in the principle of culpability. As a result, where conduct attributed to the State itself incorporates a subjective element, as is the case with an international crime, attribution operates 9

10

Dionisio Anzilotti, I Cours de Droit International 466 et seq., at 498 (Paris: Librarie du Recueil Sirey, Gilbert Gidel trans. 1929) (“Le dol et la faute, dans le sens propre du mot, expriment des manières d’être de la volonté comme fait psychologique et on ne peut donc en parler qu’en se rapportant à l’inidividu. Il s’agit, par suite, de voir si l’attitude contraire au droit international, pour être imputable à l’Etat, doit être l’effet du dol ou de la faute des individus-​organes; en d’autres termes, si le dol ou la faute de ceux-​ci est une condition que le droit établit pour que des faits déterminés produisent pour l’Etat des conséquences déterminées.”), as reproduced and translated in Pierre-​Marie Dupuy, Dionisio Anzilotti and the Law of International Responsibility of States, 3(1) ejil 139, 141 (1992). See also Clyde Eagleton, The Responsibility of States in International Law 211–​212, esp. n. 12 (New York: New York University Press 1928) (quoting Anzilotti, in r.d.i.p., xiii, p. 287 (“Nous pensons, quant à nous, que la théorie de la faute doit être ici mise absolument hors de cause.”)). ilc Articles on State Responsibility, Article 2, Commentary, para. 10.

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to impute such conduct to the State as an objective breach of that State’s relevant international legal obligation.11 The objective character of the rules of attribution in the law of State responsibility therefore has the practical effect of “objectifying” criminal conduct attributed to the State. The secondary rules of attribution in the law of State responsibility contain no subjective element commensurate to the mental element of crimes under international law and associated modes of liability in international criminal law. This distinction in operative rules of attribution may help account, at least at a functional level, for the inability of international law to accommodate State criminality.12 Accordingly, where breach of a primary rule may give rise to individual criminal responsibility under international law, the attribution of such a crime under international law to the State does not translate to State criminality or otherwise impute criminal liability, even if the State may incur international responsibility for an internationally wrongful act arising from breach of the same primary rule in relation to the same underlying conduct.13 This distinction in modalities of attribution may be viewed in relation to differences in the character of responsibility and consequences arising therefrom. Following the Second World War, for example, Kelsen drew attention to differences between State responsibility and individual criminal responsibility that may be seen as a function of different secondary rules of attribution. Punishment is directed against the individual who, by his own conduct, has violated the law, has committed the crime; criminal law directs its sanctions against an individual precisely determined as the individual who by his own conduct has performed the act which constitutes the crime. Thus criminal law establishes individual responsibility. The specific sanctions of international law … are directed against the State as such, and that means against the subjects of the State—​against individuals who have not committed the delict or had the ability to prevent it. … International law answers the question, “Against whom are the sanctions to be directed?,” not, as national criminal law does, by determining a certain human being individually, but by determining a certain group of individuals—​individuals who stand in a certain legal relation to the person who, by his own conduct, has performed the act constituting the 11 12 13

See discussion supra, Chapter 5.a (Relationship Between Elements of Individual and State Responsibility). See discussion supra, Chapter 4.c.iii (Crimes of States). For discussion of the distinct consequences that may arise for the individual and the State under international law, see discussion infra, Chapter 9 (Consequences).

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delict—​namely, the individuals who are the subjects of the State whose organ has committed the delict. This is collective responsibility. The statement that according to international law the State is responsible for its acts means that the subjects of the State are collectively responsible for the acts of the organs of the State[.]‌14 The secondary rules of attribution continue to operate in the manner described by Kelsen with respect to crimes under international law, responding to distinct legal questions and producing divergent results in the fields of responsibility for individuals and States.15 It remains the case in international law that State responsibility reflects attributes of collective responsibility that distinguish State responsibility from individual criminal responsibility.16 It bears recalling the well-​established legal principle, noted by imt at Nuremberg as “one of the most important[,]‌which is that criminal guilt is personal, and that mass punishments should be avoided.”17 The development of international criminal law may be viewed as a departure from principles of State responsibility according to which responsibility is allocated on a collective basis, thereby promoting legalism and enabling accountability for individuals responsible for certain violations of international law. As a corollary, ­collective responsibility, anathema to criminal law, is tolerable in the law of State responsibility precisely because of the absence of the culpability principle. The law of State responsibility does not presume to determine the fault of the State for breaches of international law obligations attributed to it. As a result, State responsibility is both limited (in its rejection of criminal liability) and expanded (in its imposition of collective responsibility) as compared to individual responsibility for crimes under international law.18 This deviation may be understood in relation to the operation of secondary rules

14 15 16

17 18

Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31(5) California Law Review 530, 533–​534 (1943). See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). See, e.g., Werle and Jessberger, op. cit. 44 (“International criminal law takes account of the fact that every violation of international law can ultimately be ascribed to an individual person. … In contrast, the principles of state responsibility only apply to associatively structured subjects of international law.”). imt Judgment and Sentences (1946), 251. Collective responsibility in this sense is distinct from the attribution of criminal responsibility to co-​perpetrators of a crime: See discussion supra, Chapter 6.a.i.3 (Joint Criminal Enterprise).

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of attribution, respectively, in the fields of State responsibility and individual criminal responsibility. These fundamental differences in the operation of secondary rules of attribution are borne out in the distinct consequences that may arise for the individual and the State under international law for breaches of primary rules applicable to each subject, a discussion taken up in Chapter 9.19 b

Double Attribution

Implicit in the application of a category of primary rules to both the individual and the State is attribution of conduct in breach of such rules to each subject of international law.20 It is this availability of “double attribution” which ­enables individual and State responsibility to arise concurrently for the same conduct.21 The possibility of such double attribution and concurrent responsibility arising therefrom is illustrated, for example, by savings clauses in the Rome Statute and the ilc Articles on State Responsibility. The Rome Statute states, at Article 25(4), that “[n]‌o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”22 The corollary, at Article 58 of the Articles on State Responsibility, provides that “[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.”23 The concurrent responsibility of the individual and the State is predicated upon the attribution of conduct to each subject of international law. 19 20

21 22 23

See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). Elies van Sliedregt, Individual Criminal Responsibility in International Law 5–​6 (Oxford: oup 2012). Accord. André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52(3) iclq 615, 619 (2003). See similarly Katja Creutz, State Responsibility in the International Legal Order: A Critical Appraisal 35 (Cambridge: cup 2020); Hazel Fox, The International Court of Justice’s Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to the State, in Nisuke Ando et al. [Eds.], I Liber Amicorum Judge Shigeru Oda 147, 156–​163 (The Hague: Kluwer Law International 2002). For a different view, see Joachim Wolf, Individual Responsibility and Collective State Responsibility for International Crimes: Separate or Complementary Concepts under International Law?, in Bartłomiej Krzan [Ed.], Prosecuting International Crimes: A Multidisciplinary Approach 35, 43 (Leiden: Brill Nijhoff 2016) (questioning whether international crimes may be attributed to the State). Cf. Rosenne, op. cit. 160 (Suggesting that “criminal violations of international law have become dissociated from the accepted concept of State or international responsibility.”). Rome Statute (1998), Article 25(4). See similarly Draft Code of Crimes (1996), Article 4. ilc Articles on State Responsibility, Article 58.

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Double attribution may be viewed as a function of the primary rules in question, which themselves enable a departure from the generally binary allocation of responsibility under international law.24 Watts explains such departure in the following terms: While generally international law … does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute nor [sic] merely international wrongs (in the broad sense of a civil wrong) but rather i­ nternational crimes which offend against the public order of the international community. States are artificial legal persons: they can only act through the institutions and agencies of the State, which means, ultimately, through its officials and other individuals acting on behalf of the State. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal State and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice.25 The attributability of crimes under international law not only to the State, but also to the individual, is a function of obligations under relevant primary rules that apply to both the State and the individual. That breaches of such obligations may result in individual criminal responsibility in addition to State responsibility is a product of the particular rules that give rise to such obligations and may be seen to reflect the seriousness with which the international community regards their breach.26 It follows that individual conduct in breach of such a primary rule breaches an obligation not only with respect to the State to which his or her conduct is attributable, but also, an obligation applicable to the individual as a matter of international law. Watts is therefore quite correct in linking attributability crimes under international law to both the individual and the State to the applicability of certain primary rules to each subject 24

25 26

See discussion supra, Chapter 2.a.i (Individual-​Directed Rules). Accord, e.g., Werle and Jessberger, op. cit. 43 (“The addressee of international criminal law is the individual, not the state. Thus, international criminal law deviates from the traditional model of international law, according to which, under the rules of so-​called ‘state responsibility’ the consequences of conduct that violates international law can affect only the state, but not an individual.” (internal citation omitted)). Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, [1994 iii] 247 Recueil Des Cours 82 (Leiden: Martinus Nijhoff 1994). See discussion supra, Chapter 2.a (Primary Rules).

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of international law. This point bears emphasis: double attribution arises precisely from the capacity of both the individual and the State to incur responsibility because the primary rules in question generate obligations for both the individual and the State. Such concurrent responsibility is therefore unique to primary rules that apply to both the individual and the State. As a result of primary rules applicable to both the individual and the State, double attribution effectuates a departure from the generally binary character of responsibility under international law. Attribution, for purposes of State responsibility, is the nexus between individual conduct and the State necessary to engage the responsibility of the State for breach of an international obligation.27 Attribution of conduct to the State generally has the effect of shielding the individual from responsibility for such conduct manifesting an act of the State.28 This general result has been observed in practice, for example, by the icty Appeals Chamber: [State] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act. … This is a well-​established rule of

27 28

See discussion supra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). See, e.g., Hans Kelsen, Principles of International Law 235 (Clark: The Lawbook Exchange, Ltd. 2003) (“No state is allowed to exercise through its own courts jurisdiction over another State unless the other State expressly consents. … Since a state manifests its legal existence only through acts performed by human beings in their capacity as organs of the state, that is to say, through acts of state, the principle that no State has jurisdiction over another state must be interpreted to mean that a state must not exercise jurisdiction through its own courts over acts of another State unless the other state consents. Hence the principle applies not only in case a state as such is sued in a court of another state, but also in case an individual is the defendant or the accused and the civil or criminal delict for which the individual is prosecuted has the character of an act of state. Then the delict is to be imputed to the state, not to the individual[.]‌”); Kelsen (1943), op. cit. 556 (“The fact that an act is an act of State constitutes a problem of general international law which, as a rule, excludes individual responsibility for an act of State.” (internal citation omitted)). For discussion of the underlying principle, cf. R. Y. Jennings, The Caroline and McLeod Cases, 32(1) ajil 82, 92–​99 (1938) (McLeod’s Case). Cf. Hazel Fox and Philippa Webb, The Law of State Immunity 364 (Oxford: 3d ed. oup 2013) (“The doctrine of imputability of the acts of the individual to the State … in classical law … imputes the act solely to the State, who alone is responsible for its consequence. Accordingly, any act performed by the individual as an act of the State enjoys the immunity which the State enjoys.”).

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customary international law going back to the eighteenth and nineteenth centuries, restated many times since.29 Put differently, attribution of individual conduct to the State, constituting a breach of an international obligation of the State, has not only the effect of engaging State responsibility for that conduct, but also, as a general matter, excludes individual responsibility for that same conduct. As a result, under international law, the individual is ordinarily only subject to consequences for conduct that is private in nature, which, as such, is generally not attributable to the State by operation of relevant secondary rules of State responsibility.30 However, where primary rules obligate both the individual and the State under international law, conduct in breach of such rules may be attributed to each legal subject for purposes of establishing its responsibility.31 Attribution of a crime under international law to the State for purposes of its international responsibility does not, therefore, preclude its attribution to the individual for purposes of criminal responsibility. Instead, secondary rules of attribution in international criminal law define modalities of participation through which the individual may incur liability for crimes under international law, without regard to whether such conduct is attributable to a State.32 These secondary rules provide the basis for determining whether an individual has associated themselves with a crime under international law in a manner sufficient to trigger their responsibility for that crime from the standpoint of international law. One cannot lose sight of the reality that conduct giving rise to individual criminal responsibility is frequently linked closely to the exercise of State authority. As Crawford notes, “[i]‌t is characteristic of the worst crimes of the period since 1930 that they have been committed within and with the ­assistance of State structures.”33 Werle and Jessberger similarly observe that “[c]rimes under international law typically, though not necessarily, presume

29

30 31 32 33

Blaškić (1997), para. 38 (internal citations omitted) (Although a clear statement of this general rule, it bears noting that this decision by the icty Trial Chamber did not contemplate the non-​attributability of international crimes to State officials, but rather, concerned the powers of the Tribunal related to issuance of a subpoena duces tecum.). ilc Articles on State Responsibility, Article 8, Commentary, para. 1; id., Article 11, Commentary, para. 2. See, e.g., ilc Articles on State Responsibility, Article 58, Commentary, para. 3 (“Nor may those officials hide behind the State in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them.”). See discussion supra, Chapter 6 (Rules of Attribution in International Criminal Law). First Report on State Responsibility (James Crawford, Special Rapporteur), at 22, para. 89.

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state participation.”34 These observations—​reflected historically in the prosecution of individuals for crimes under international law—​underscore the important function of double attribution in an international legal system that contemplates responsibility not only of the individual, but also of the State, for the most serious violations of international law. To this end, it is important not only that attribution of crimes under international law to the State not shield the individual from criminal responsibility, but equally, that attribution of such crimes to the individual not preclude State responsibility. The secondary rules of attribution in the law of State responsibility operate to identify, with specificity, the circumstances under which such individual criminal conduct may be regarded as an act of the State for purposes of its international responsibility.35 The icj, in its treatment of the crime of genocide, has looked solely to the secondary rules of attribution in the law of State responsibility to assess the responsibility of States for crimes under international law.36 For example, in its 2007 Application of the Genocide Convention judgment, the icj concluded that States parties to the Genocide Convention “are bound not to commit genocide, through the actions of their organs or persons or groups whose acts are attributable to them,”37 and in view of this obligation assessed whether conduct established by the icty to engage individual criminal responsibility for genocide was attributable also to Serbia to engage its international responsibility pursuant to secondary rules of attribution.38 Again, in its 2015 Application of the Genocide Convention judgment, the icj applied secondary rules of attribution when it considered that breach of a State’s obligation not to commit genocide “may consist of acts, attributable to the State, committed by a person or a group of persons whose individual criminal responsibility has already been established.”39 Similarly, in its 2012 Jurisdictional Immunities of the State judgment, the icj assumed that individual conduct amounting to 34 35 36

37 38 39

Werle and Jessberger, op. cit. 44 (“Crimes under international law typically, though not necessarily, presume state participation.”); van Sliedregt, op. cit. 5 (“The organized and collective nature of crimes often suggests state involvement.”). See discussion supra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). See, e.g., Application of the Genocide Convention (2007), para. 385 (referring to “the well-​ established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State.”). See discussion supra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). Application of the Genocide Convention (2007), para. 167. Accord. Application of the Genocide Convention (2015), paras. 128–​129. Application of the Genocide Convention (2007), paras. 278–​297, 413–​415. Application of the Genocide Convention (2015), para. 128.

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crimes under international law were attributable to Germany so as to engage its international responsibility.40 In effect, then, the breach of a primary rule giving rise to individual criminal responsibility was regarded in each of these instances to be sufficient, if attributable to the State under the secondary rules of attribution in the law of State responsibility, to also constitute an internationally wrongful act of the State engaging its international responsibility.41 From the perspective of double attribution, where conduct is attributable to both the individual and the State, secondary rules of attribution may be understood to operate in consonance. The secondary rules governing individual criminal responsibility would be applied to assess whether individual participation in prohibited conduct triggers individual criminal responsibility; the secondary rules governing State responsibility would be applied to assess whether the State’s association with that agent is sufficient to trigger its international responsibility for that prohibited conduct as a breach of its international obligations. Double attribution may be viewed in this way as the c­ orresponding operation of secondary rules governing attribution for purposes of individual and State responsibility in relation to the same underlying conduct. While this correspondence suggests a natural order of operations according to which a prior determination of individual criminal responsibility may serve as a basis for a subsequent finding of State responsibility, the mechanics of attribution suggest that it is practically unlikely for this order to be reversed, such that State responsibility may serve as the basis for a subsequent determination of individual criminal responsibility.42 The different procedures of a criminal court or tribunal to those of a court or tribunal adjudging State responsibility present a significant complicating factor in this regard.43 It is 40

41 42 43

Jurisdictional Immunities of the State (2012), paras. 52–​53, 60, 81, 108 (Though State responsibility for international crimes was not at issue in the case: “The question whether Germany still has a responsibility towards Italy, or individual Italians, in respect of war crimes and crimes against humanity committed by it during the Second World War does not affect Germany’s entitlement to Immunity. Similarly, the Court’s ruling on the issue of immunity can have no effect on whatever responsibility Germany may have.”). Note that Germany also assumed international responsibility for the underlying criminal conduct: see Jurisdictional Immunities of the State (Germany v. Italy), Application Instituting Proceedings, at 4 (Dec. 23, 2008). See discussion supra, Chapter 7.b.i (Secondary Rules of General Applicability). Cf. van Sliedregt, op. cit. 7; Nollkaemper, op. cit. 627–​631. See, e.g., Application of the Genocide Convention (2015), para. 129 (“It is for the Court … to decide whether acts of genocide have been committed, but it is not for the Court to determine the individual criminal responsibility for such acts. That is a task for the criminal courts or tribunals empowered to do so, in accordance with appropriate procedures.”); Application of the Genocide Convention (2007), para. 181 (referring to “[t]‌he

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unlikely, for example, that an individual accused of an international crime would have been fully represented in proceedings concerning State responsibility and afforded the rights to which they would be entitled in a criminal proceeding.44 Along similar lines, a criminal conviction must satisfy a standard of proof that may be more demanding than that required for a determination of State responsibility for the same underlying conduct.45 One exception, in which a determination of State responsibility might logically precede a finding of individual criminal responsibility, may arise in the context of the crime of aggression, because the crime itself includes as a material element an act of aggression by the State.46 Even in this context, however, a prior determination of State responsibility may substantiate an element of the international crime of aggression, but would not as such entail attribution of State conduct adjudged to constitute aggression to the individual to establish individual criminal responsibility. While double attribution may result in allocation of responsibility for crimes under international law to both the individual and the State, it does not follow from the attributability of such conduct to each subject of international law that State responsibility for an international crime is predicated upon the prior attribution of such criminal conduct to an individual so as to engage their criminal responsibility. A prior conviction of an individual for such criminal conduct by a competent court or tribunal is not necessary to establish the element of breach of a State’s international obligation that would give rise, if attributed to an individual, to individual criminal responsibility.47

44

45 46

47

different procedures followed by, and powers available to, this Court and to the courts and tribunals trying persons for criminal offences.”). See, e.g., unsc Resolution 1966 (2010), On establishment of the International Residual Mechanism for Criminal Tribunals with two branches and the adoption of the Statute of the Mechanism, U.N. Doc. S/​Res/​1966 (Dec. 22, 2010), Annex 1 (Statute of the International Residual Mechanism for Criminal Tribunals), Article 19 (Rights of the Accused) (hereinafter, “mict Statute (2010)”); icc rpe, Article 67 (Rights of the Accused); ictr Statute (1994), Article 20; icty Statute (1993), Article 21. See discussion supra, Chapter 5.c (Standards of Proof). Rome Statue (1998), Article 8bis. Cf. Kai Ambos, The Crime of Aggression after Kampala, 53 German Yearbook of International Law 463, 482 (2010); Harold Hongju Koh and Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109(2) ajil 257, 262 (2015). See discussion supra, Chapter 4, nn. 44–​49 (on the crime of aggression). See, e.g., ilc Articles on State Responsibility, Article 58, Commentary, para. 3, n. 839 (citing Streletz, Kessler and Krenz v. Germany (application Nos. 34044/​96, 35532/​97 and 44801/​98), judgment of 22 March 2001, Eur. Court H.R., Reports, 2001–​i i (para. 104) (“If the gdr still existed, it would be responsible from the viewpoint of international law for the acts concerned. It remains to be established that alongside that State responsibility the applicants

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Under such circumstances, in the absence of a prior judicial determination of individual criminal responsibility, State responsibility would still depend upon the attribution of conduct amounting to a crime under international law, even if such State responsibility would not technically run concurrently with individual criminal responsibility. The icj suggested this possibility in its 2007 Application of the Genocide Convention judgment, and again in its 2015 Application of the Genocide Convention judgment, finding that State responsibility can arise for genocide under the Genocide Convention “without an individual being convicted of the crime or an associated one.”48 However, as a practical matter, in the absence of a breach of a primary rule by an individual, there can be no question of State responsibility for such conduct.49 Double attribution contemplates the operation of secondary rules to attribute breaches of certain primary rules to both the individual and the State, however this is distinct from the competence of a judicial organ to apply these secondary rules in adjudging responsibility for such breaches, which is a question of jurisdiction.50 The secondary rules of attribution are distinct from, and without prejudice to, the operation of secondary rules governing jurisdiction. Functionally, a single judicial organ is unlikely to enjoy the requisite jurisdiction to adjudge both individual responsibility arising from a crime under international law and State responsibility arising in relation to such conduct. Because the competence of an international criminal court or tribunal is presumptively limited by its constitutive instrument to natural persons,51 such a court adjudging individual criminal responsibility would lack the competence to adjudge State responsibility arising concurrently with, or complementary to, individual responsibility.52 Domestic courts adjudging individual criminal responsibility

48

49 50 51 52

individually bore criminal responsibility at the material time.”)). Cf. Nollkaemper, op. cit. 627–​631. Application of the Genocide Convention (2015), para. 128 (quoting Application of the Genocide Convention (2007), para. 182). Note that this observation by the icj may also be interpreted as referring to State responsibility that is complementary to individual responsibility: see discussion supra, Chapter 4, n. 15. See, e.g., Application of the Genocide Convention (2015), para. 441. For discussion of operative secondary rules of jurisdiction, see discussion infra, Chapter 11 (Jurisdiction). See, e.g., Rome Statute (1998), Article 25(1) (“The Court shall have jurisdiction over natural persons pursuant to this Statute.”). See, e.g., Application of the Genocide Convention (2007), para. 403 (“the icty was not called upon … nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons only.”); Prlić et al., it-​04-​74-​a , Decision on Application by the Republic of Croatia for Leave to Appear as Amicus Curiae and to Submit Amicus Curiae Brief, para. 9 (July 18, 2016) (“The Appeals Chamber further

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are also not well positioned to adjudge State responsibility for an internationally wrongful act arising from attribution of a crime under international law.53 By the same token, an international court or tribunal with j­urisdiction over disputes between States would be expected to lack the competence to adjudge the criminal responsibility of an individual, even if conduct attributable to the State for purposes of engaging State responsibility is determined to constitute a crime under international law.54 Accordingly, even if double attribution contemplates the concurrent operation of secondary rules of attribution in the fields of individual and State responsibility, this operation is separate and distinct from the competence of a judicial organ to apply those secondary rules in order to establish responsibility. c

International Crimes, Official Capacity, and Attribution to the State

The double attribution of conduct in breach of certain primary rules raises a number of issues associated with the secondary rules of attribution. One issue concerns how conduct constituting an international crime is regarded and how generalizations about such conduct may impact the attribution of such conduct to the State. The character of individual conduct is a threshold question for the operation of secondary rules of attribution for purposes of State responsibility. Assessing individual conduct that constitutes an international crime begins with the default presumption under international law that “‘the conduct of any

53 54

observes that the Tribunal’s jurisdiction is restricted to ‘natural persons’ and the Tribunal does not have the competency to make findings on state responsibility.”). See discussion infra, Chapter 11.b (Jurisdiction over States under International Law). See, e.g., icj Statute, Article 36 (referring to the jurisdiction of the Court in terms of States parties to the icj Statute). Accord., e.g., Application of the Genocide Convention (2015), para. 129 (“It is for the Court … to decide whether acts of genocide have been committed, but it is not for the Court to determine the individual criminal responsibility for such acts. That is a task for the criminal courts or tribunals empowered to do so, in accordance with appropriate procedures.”); Application of the Genocide Convention (2007), para. 181. See similarly, Eritrea-​Ethiopia Claims Commission—​Partial Award: Prisoners of War—​Eritrea’s Claim 17, Decision of 1 July 2003, xxvi riaa 23–​72, at 41, para. 47 (“The Commission is not a criminal tribunal assessing individual criminal responsibility. It must instead decide whether there have been breaches of international law based on normal principles of state responsibility.”). See similarly Eritrea-​Ethiopia Claims Commission—​ Partial Award: Prisoners of War—​Ethiopia’s Claim 4, Decision of 1 July 2003, xxvi riaa 73–​114, at 88, para. 38.

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organ of a State must be regarded as an act of that State’.”55 Conduct of a State organ is generally regarded under this rule as being undertaken in its “official capacity” for purposes of secondary rules of international law. If applicable, the default rule of official conduct would suggest that the act of a State organ constituting an international crime may be performed in its “official capacity” because, inter alia, the unlawful character of such conduct under international law has no bearing on its official character.56 There is, however, support for the proposition that individual conduct by a State organ or instrumentality constituting an international crime is not properly considered to be undertaken in its “official capacity” under international law.57 This position is reflected, for example, in the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal appended to the 2002 icj Arrest Warrant decision, in which the Judges explained, with apparent approval—​ It is now increasingly claimed in the literature … that serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform. … This view is underscored by the increasing realization that State-​related motives are not the proper test for determining what constitutes public State acts. The same view is gradually

55

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Armed Activities on the Territory of the Congo (2005), para. 213 (quoting Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, i.c.j. Reports 1999 (i), p. 87, para. 62) (describing this as “a well-​established rule of international law, which is of customary character.”). See ilc Articles on State Responsibility, Article 4, Commentary, para. 13 (comparing acts performed in an official capacity with those performed in a private capacity.). See discussion supra, Chapter 7.a.i (State Organs). The discussion that follows applies, mutatis mutandis, to de facto State organs: see discussion supra, Chapter 7.a.ii (De Facto State Organs). See, e.g., Dapo Akande and Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, 21(4) ejil 815, 832 (2011). See, e.g., Second Report on Immunity of State Officials (Roman A. Kolodkin, Special Rapporteur), para. 57. Cf. Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46(4) Georgetown Journal of International Law 1151, 1199 (2015); Chemène I. Keitner, Transnational Limitation: Jurisdiction and Immunities, in Dinah Shelton [Ed.], The Oxford Handbook of International Human Rights Law 807 (Oxford: oup 2013); Beth Stephens, Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses, 44(5) Vanderbilt Journal of Transnational Law 1163, 1179–​1180 (2011).

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also finding expression in State practice, evidenced in judicial decisions and opinions.58 By this reasoning, the fact that an international crime may be performed by a State organ is not sufficient to regard such conduct as undertaken in its official capacity because there are other factors—​such as whether conduct is a normal State function—​that should inform how such conduct is characterized.59 Further support for this position is found in various judgments by domestic courts in the context of immunity. The UK House of Lords, in proceedings against former Chilean President Augusto Pinochet involving acts covered by the Torture Convention, considered that such conduct was not a proper function of his office under international law.60 This same position was adopted by the Amsterdam Court of Appeal in proceedings against Desi Bouterse, the former military ruler of Suriname charged with crimes against humanity and torture under customary international law, which found that such conduct fell outside the official duties of his office.61 Litigation in the United States under a number of jurisdictional statutes also reflects this approach.62 For example, 58 59 60

61

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Arrest Warrant (2002), Joint Sep. Op. Higgins, Kooijmans & Buergenthal, para. 85 (citing sources). Cf. Arrest Warrant (2002), Diss. Op. Van Den Wyngaert, para. 36 (“The International Court of Justice should have made it clearer that its Judgment can never lead to this conclusion and that such acts can never be covered by immunity”). R. v. Bartle and the Commission of Police for the Metropolis and Others, Ex Parte Pinochet, [1998] ukhl 41, [2000] 1 ac 61 (Nov. 25, 1998), reprinted in 37(6) ilm 1302 et seq. (1998), at 1333 (Nicholls, L.) (“[T]‌orture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state.”); 1337 (Steyn, L.) (“[I]t seems … difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a Head of State.”) (hereinafter, “Pinochet (1998)”). See also R. v. Bartle and the Commission of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] ukhl 17, [2000] 1 ac 147 (Mar. 24, 1999), reprinted in 38(3) ilm 581 et seq. (1999), at 594–​95 (Browne-​Wilkinson, L.); 626 (Hope, L.); 638 (Hutton, L.) (“The alleged acts of torture by Senator Pinochet were carried out under colour of his position as a head of state, but they cannot be regarded as functions of a head of state under international law when international law expressly prohibits torture as a measure which a state can employ in any circumstances whatsoever and has made it an international crime.”); 643 (Saville, L.); 651 (Millett, L.); 663 (Phillips, L.) (hereinafter, “Pinochet (1999)”). Bouterse Case, Amsterdam Court of Appeal (Netherlands), Petition Nos. R 97/​163/​12 Sv & R 97/​176/​12 Sv, para. 4.2 (Nov. 20, 2000) [Unofficial International Commission of Jurists Translation] (“the commission of very serious offences as are concerned here—​cannot be considered to be one of the official duties of a head of state.”) (hereinafter, “Bouterse (2000)”). Chuidian v. Philippine National Bank, 912 F.2d 1095, 1106 (9th Cir. 1990) (“ ‘[W]‌here the officer’s powers are limited by statute, his actions beyond those limitations are considered

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in litigation for acts of torture under the Alien Tort Statute against the former President of the Philippines, Ferdinand Marcos, and his daughter, Imee Marcos–​Manotoc, the United States Court of Appeals for the Ninth Circuit rejected the argument that Marcos’ actions were “official” or “public” acts and similarly considered that Marcos–​Manotoc’s “acts were not taken pursuant to an official mandate.”63 On this same basis, the Federal Criminal Court of Switzerland dismissed a claim of functional immunity in criminal proceedings involving war crimes and torture against Kahled Nezzar, a former minister of defense who had been part of the ruling military junta of Algeria, as “contradictory and futile.”64 Importantly, this approach does not call into question whether conduct by a State organ amounting to a crime under international law is attributable to the State: ultra vires conduct by a State organ is attributable to the State by operation of secondary rules of attribution in the law of State responsibility.65 Even if an act by a State organ amounting to an international crime may not be regarded as undertaken in its official capacity, it remains likely that such conduct was carried out “under color of law.” The proposition that conduct by a State organ, operating under color of law, amounting to an international crime is not properly regarded as official because it exceeds normal State functions, would result in such conduct being regarded as ultra vires from the perspective of international law.66 The attribution of ultra vires acts of State organs—​acts exceeding their authority (i.e., in breach of the rules to which he or she is subject)—​finds

63 64

65 66

individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do[.]’” (quoting Larson, 337 U.S. at 689, 69 S.Ct. at 1461)). See In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493, 498 n. 10 (9th Cir. 1992) (“In so holding, we implicitly rejected the possibility that the acts … were public acts of the sovereign.”). A v. Office of the Attorney General of Switzerland, Federal Criminal Court (Switzerland), No. bb.2011.140, A, Bundesstrafgericht [BStR], para. 5.4.3 (July 25, 2012) (unofficial translation by trial) (“[I]‌t is generally recognized that the prohibition of serious crimes against humanity, including torture … and war crimes is mandatory in nature (jus cogens). … [I]t would be difficult to admit that conduct contrary to fundamental values of the international legal order can be protected by rules of that very same legal order. Such situation would be paradoxical. … It follows that, in the present case, the suspect cannot claim any immunity ratione materiae.”). See discussion supra, Chapter 7.a.iii (Ultra Vires Conduct). Black’s Law Dictionary, Ultra Vires (11th ed. 2019) (translating ultra vires as “beyond the powers (of),” meaning “[u]‌nauthorized; beyond the scope of power allowed or granted by a corporate charter or by law.”). Cf. Weatherall, op. cit. 1199; Keitner, op. cit. 807; Stephens, op. cit. 1179–​1180.

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expression in international practice.67 This rule is articulated in Article 7 of the ilc Articles on State Responsibility.68 According to this rule, for purposes of attribution, it is “irrelevant” whether a State organ “acted contrary to the instructions given or exceeded their authority,” elements which derive from the icj’s application of this rule in Armed Activities on the Territory of the Congo (Congo v. Uganda).69 As Crawford succinctly notes, “[w]‌hat matters is the exercise of state authority, not its propriety.”70 The rule, as expressed in Article 7 of the ilc Articles on State Responsibility, requires that such conduct be carried out by an organ of the State “in that capacity,” i.e., under color of law. Under such factual circumstances, conduct of a State organ constituting an international crime could be attributed to the State even if such conduct would not be regarded as “official” because it exceeded the official capacity of that organ. More generally, determining whether conduct by a State organ is undertaken in such a way as to render that conduct attributable to the State depends of course upon the facts and circumstances of a given case.71 Regarding international crimes by State organs as inherently ultra vires is not in tension with the characterization of international crimes as acta jure imperii for purposes of State responsibility. Where international criminal conduct is attributable to the State, such conduct would be expected to be characterized as acta jure imperii notwithstanding that it is unlawful.72 This conclusion is contingent only upon the attribution of an international crime to the State and is not dependent upon the modality by which such conduct is attributed. Put differently, an international crime attributable to the State

67

The decision of the French-​Mexican Claims Commission in Caire, a case concerning the attempted extortion and abuse of a French national by Mexican soldiers, is identified by Crawford as the locus classicus; it held—​ the two officers, even if they are deemed to have acted outside their competence … and even if their superiors countermanded an order, have involved the responsibility of the State, since they acted under cover of their status as officers and used means placed at their disposal on account of that status. James Crawford, State Responsibility: The General Part 137 (Cambridge: cup 2013) (citing Estate of Jean-​Baptiste Caire v. Mexico (France /​Mexico), (1929) 5 riaa 516). See ilc Articles on State Responsibility, Article 4, Commentary, para. 13; id., Article 7, Commentary, para. 5. 68 ilc Articles on State Responsibility, Article 7. 69 Armed Activities on the Territory of the Congo (2005), para. 214. 70 Crawford, op. cit. 136 (emphasis in original). 71 ilc Articles on State Responsibility, Article 4, Commentary, para. 13. 72 Jurisdictional Immunities of the State (2012), para. 60. See discussion supra, Chapter 4.c.ii (Acta Jure Imperii).

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could be regarded as jure imperii regardless of the operative rule of attribution that establishes such conduct as an act of the State.73 The close association of international crimes with jus cogens offers a limiting principle that distinguishes international crimes from the broader field of unlawful conduct.74 Because international crimes reflect the individual sanction for the violation of a primary rule “from which no derogation is permitted,”75 the violation of such a primary rule can never be authorized by the State as a matter of international law.76 It follows that such conduct per se exceeds the authority of a State organ from the perspective of international law.77 Regarding international crimes as inherently ultra vires therefore does not require drawing broader conclusions about the designation of unlawful conduct performed by State organs under color of law. Ultra vires acts, while distinguishable from official capacity conduct, are also distinct from private capacity conduct of State organs.78 The distinction between ultra vires acts and purely private acts is reflected in the secondary rules of attribution in the law of State responsibility and hinges on whether such conduct is performed in the name of the State.79 As the ilc explained in its commentary to Article 4 of the Articles on State Responsibility, the conduct of a State organ undertaken in an apparently official capacity (i.e., under color of law) distinguishes ultra vires acts from conduct undertaken by a State organ in a purely private capacity.80 The consequence of this distinction is that, while the private conduct of a State organ is not attributable to the State, the conduct of a State organ acting under the color of law is attributable to the State, even if such conduct contravenes instructions or exceeds its authority.81 73 74 75 76 77 78

79 80 81

See discussion supra, Chapter 7 (Rules of Attribution in the Law of State Responsibility). See discussion supra, Chapter 2.a (Primary Rules). Vienna Convention on the Law of Treaties, Article 53. This is consistent with the well-​established principle that a State cannot rely on lawfulness under internal law to excuse breach of an international obligation. See supra, Chapter 7, n. 49 (citing sources). Even so, as discussed above, such conduct may be attributed to the State: see, e.g., ilc Articles on State Responsibility, Article 7; Armed Activities on the Territory of the Congo (2005), para. 214. See contra Giovanni Boggero, Without (State) Immunity, No (Individual) Responsibility, 5(2) Goettingen Journal of International Law 375, 387 (2013) (“the qualification of grave violations of human rights as ultra vires acts is equally unacceptable. This qualification … lends itself to the objection on the basis of which rarely can acts of this nature be committed ‘in a private capacity’.”). ilc Articles on State Responsibility, Article 4, Commentary, para 13. See also Crawford, op. cit. 137. Id. Id., Article 7.

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Crimes under International Law Performed in a Private Capacity

As a general rule, private conduct is not attributable to the State for purposes of engaging State responsibility. Private conduct of a State organ is not attributable to the State.82 Conduct amounting to an international crime by a State organ carried out in a purely private capacity would accordingly be regarded as private. Relatedly, conduct by private persons or entities is only attributable to the State under particular circumstances and is presumptively not attributable to the State.83 Consequently, an international crime performed by a State organ that is purely private, or by a private person or entity, would generally not be attributable to the State for purposes of engaging its responsibility.84 In effect, where individual conduct that constitutes an international crime is properly regarded as private in character, this designation would have the practical consequence of limiting responsibility under international law for that international crime to the individual who performed the act so as not to give rise concurrently to State responsibility.85 Support for the proposition that individual conduct constituting a crime under international law, even by a State organ operating in that capacity, is properly regarded as private in character as a general matter is typically implied by reference to dicta in the icj’s 2002 Arrest Warrant decision.86 There, the icj explained in the context of immunity ratione personae that the immunities enjoyed under international law by a high State official would not bar criminal prosecution in certain circumstances, including after such official ceases to hold the office conferring immunity ratione personae.87 Where a high State official no longer enjoys immunity ratione personae, according to the icj—​ 82 83 84 85 86

87

Id., Article 8, Commentary, para. 1. Cf. id., Article 4, Commentary, para 13. See discussion supra, Chapter 7.a.iv (Other Circumstances in which Conduct may be Attributable to the State). See Marina Spinedi, State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur?, 13(4) ejil 895–​899 (2002). This conclusion is without prejudice to complementary State responsibility that may arise under obligations associated with primary rules that give rise to international crimes. See discussion supra, Chapter 4.d.ii.2 (Attribution of International Crime not a Prerequisite). Andrea Bianchi, State Responsibility and Criminal Liability of Individuals, in Antonio Cassese [Ed.], The Oxford Companion to International Criminal Justice 18–​19 (Oxford: oup 2009). But see Ingrid Wuerth, Pinochet’s Legacy Reassessed, 106(4) ajil 731, 741–​742 (2012) (noting that “scholars have increasingly rejected” this argument). Indeed, it is questionable whether crimes under international law may in practice be committed by State organs or instrumentalities in a private capacity except under extraordinary circumstances. See Giovanni Boggero, Without (State) Immunity, No (Individual) Responsibility, 5(2) Goettingen Journal of International Law 375, 387–​388 (2013). Arrest Warrant (2002), para. 61.

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[p]‌rovided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.88 By contemplating subsequent criminal prosecution for “acts committed during that period of office in a private capacity” in reference to international crimes, the icj at least seems to have contemplated the possibility that such conduct could be regarded as private in character. This observation by the court has been interpreted as support for the proposition that international crimes by State organs and instrumentalities may be regarded as private conduct as a general matter. Because international crimes can never be authorized by the State under international law, so it would go, such conduct cannot be carried out on behalf of the State and, accordingly, is inherently private in character. However, as discussed above, ultra vires conduct by a State organ operating under color of law is distinguishable from purely private conduct not undertaken in such capacity.89 Relatedly, as noted by the ilc, the unlawful character of an act undertaken in the name of the State is distinguishable from whether such act is undertaken in the name of the State.90 Moreover, the icj has since contemplated attribution to the State of individual conduct constituting an international crime for purposes of assessing the concurrent responsibility of the State,91 and has characterized international crimes attributable to the State as acte jure imperii,92 indicating that international crimes perpetrated by State organs are not presumptively performed in a private capacity. The proposition that international crimes are regarded as private in character is often directed at the denial of immunity ratione materiae for such ­conduct.93 For example, the icj’s purpose in Arrest Warrant for implying that conduct constituting an international crime may be private in character appears to have been directed at the subsequent denial of immunity ratione materiae for such conduct. While regarding international crimes as private 88 89 90 91 92 93

Id. (emphasis added). See discussion supra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). ilc Articles on State Responsibility, Article 4, Commentary, para 13. See, e.g., Application of the Genocide Convention (2015), paras. 201–​202. Jurisdictional Immunities of the State (2012), para. 60. See, e.g., Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction (Roman A. Kolodkin, Special Rapporteur), U.N. Doc. a/​c n.4/​601, paras. 80, 83 (May 29, 2008).

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conduct would prevent the sovereign immunity of the State from projecting downward to shield such conduct from jurisdiction—​rendering immunity ratione materiae in relation to such conduct unavailable—​this consequence would result from the non-​attributability of that conduct to the State in the first instance.94 This characterization would foreclose the possibility of State responsibility arising concurrently with individual criminal responsibility for breach of the same primary rule under international law.95 Although this result is not supported in practice, it has been suggested that responsibility for international crimes is most appropriately located with the individual to the possible exclusion of the concurrent responsibility of the State.96 In this sense, the imt at Nuremburg explained its jurisdiction over individuals rather than States as the parties principally responsible for international crimes.97 Allocating responsibility for international crimes solely with the individual is arguably consistent with primary rules of international law that apply to the individual, who is in turn primarily responsible for breaches of those rules.98 This position was echoed by Judges Shi and Vereshchetin in their joint declaration appended to the icj’s 1996 Application of the Genocide Convention judgment on jurisdiction, in which they raised questions about language in that judgment suggesting that the Genocide Convention “does not exclude any form of State responsibility.”99 The Genocide Convention, the Judges noted, “remains an instrument relating to the criminal responsibility of individuals,” and they cast doubt on whether individual conduct covered by the Convention is attributable to the State.100 From the standpoint of holding accountable those most responsible for international crimes, it arguably follows that individuals are the principal subjects of responsibility for international crimes. Whether this position should necessarily exclude concurrent State responsibility for international crimes through the operation of 94

See discussion infra, Chapter 8.e (Attribution to the State and Individual Immunity Ratione Materiae). 95 Support for this result may be implied in some commentary. See, e.g., Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 46–​52 (Leiden: Martinus Nijhoff 2009) (discussing the separation of state and individual responsibility); Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 631 (2007) (“under international law the criminal liability of individuals and state responsibility for genocide are not triggered by the violation of the same primary rule.”). 96 Cf. Nollkaemper, op. cit. 621–​622. 97 imt Judgment and Sentences (1946), 220–​221. 98 Cf. Thomas Weatherall, Jus Cogens 267–​276 (Cambridge: cup 2015). 99 Application of the Genocide Convention (1996), Joint Decl. Shi and Vereshchetin, 631. 100 Id. at 631–​632.

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secondary rules of attribution is unclear. In any event, treating international crimes by State organs as purely private in character does not appear in practice to be an available approach to prioritize individual responsibility to the exclusion of State responsibility. e

Attribution to the State and Individual Immunity Ratione Materiae

While the previous sections addressed the characterization of international crimes and its impact on their attributability to the State, this section considers the other side of the coin. The discussion above concerned attribution of conduct of the individual “upward” to the State; this section concerns the consequences of such attribution that flow “downward” from the State as a result of attribution in the field of immunity.101 The secondary rules of attribution govern whether conduct may be regarded as an act of the State and the secondary rules of immunity govern whether such conduct is shielded from jurisdiction. Generally, attribution and immunity operate in concurrence to allocate responsibility for the attributable conduct of individuals to the State and to preclude the operation of jurisdiction over such conduct with respect to those individuals because, ordinarily, the State is solely responsible for acts of the State under international law.102 As discussed in detail in Chapter 12,103 immunity ratione materiae refers to the immunity enjoyed by organs of the State for acts performed in their official capacity which the “State is entitled to claim … [as acts] attributed to the State, so that the individual organ may not be held accountable for those acts or transactions.”104 In effect, because such official conduct is attributed upward to the State, sovereign immunity extends to an individual official, and in particular to the conduct of that official, acting on behalf of that State. Immunity ratione materiae does not apply to acts of State organs beyond their official conduct.105 Where a State organ is impleaded for conduct falling beyond the 101 Cf. Carlo de Stefano, Attribution in International Law and Arbitration 17–​ 19 (Oxford: oup 2020); Hazel Fox, Imputability and Immunity as Separate Concepts: The Removal of Immunity from Civil Proceedings Relating to the Commission of an International Crime, in Kaiyan Homi Kaikobad and Michael Bohlander [Eds.], International Law and Power: Perspectives on Legal Order and Justice 165–​178 (Leiden: Brill Nijhoff 2009). 102 See discussion infra, Chapter 12.b (State Immunity under International Law). 103 See discussion infra, Chapter 12.a.ii (Immunity Ratione Materiae). 104 Blaškić (1997), para. 41. See Fox and Webb, op. cit. 364. 105 See discussion infra, Chapter 12.a.ii (Immunity Ratione Materiae).

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scope of its official functions, the State is not implicitly impleaded because an act of the State is not at issue. Generally, this unavailability of immunity indicates that the impugned conduct was not attributable upward to the State in the first instance so as to attract the downward projection of immunity ratione materiae.106 A substantial body of practice indicates that immunity ratione materiae is unavailable to State organs before international and domestic courts for international crimes.107 Yet it is well established that such conduct may be attributed to the State.108 International crimes appear to present an anomaly in the relation of secondary rules of attribution and immunity. The ilc, in its project on Immunity of State Officials from Foreign Criminal Jurisdiction, identified crimes under international law in respect to which immunity ratione materiae “shall not apply.”109 In its commentary, the special rapporteur explained that the phrase “shall not apply” was intended to capture two different explanations found in practice and doctrine for the inapplicability of immunity ratione materiae to international crimes, particularly with regard to whether crimes under international law may be performed in an official capacity: One view is that the commission of such crimes can never be considered a function of the State and they therefore cannot be regarded as “acts performed in an official capacity.” The contrary view holds that crimes under international law either require the presence of a State element (torture, enforced disappearance) or else must have been committed with the backing, express or implied, of the State machinery, so that there is a connection with the State, and such crimes can therefore be considered in certain cases as “acts performed in an official capacity.” Although the Commission did not find it necessary to come down in favour of one or the other of these interpretations, it noted that some national courts have not applied immunity ratione materiae in the exercise of their 1 06 Id. 107 Id. 108 See discussion supra, Chapter 4.c (Concurrent State Responsibility); Chapter 6.a (Modes of Attribution). 109 Seventh Report on Immunity of State Officials from Foreign Criminal Jurisdiction (Concepción Escobar Hernández, Special Rapporteur), U.N. Doc. a/​c n.4/​729 (Apr. 18, 2019), Annex i, Draft Article 7 (Draft articles on immunity of State officials from foreign criminal jurisdiction provisionally adopted by the Commission) (hereinafter, “ilc Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction”) (excerpted infra, Chapter 12, n. 57).

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criminal jurisdiction in respect of these crimes under international law, either because they do not regard them as an act performed in an official capacity or a characteristic function of the State, or because they take the view that, although crimes under international law may constitute such an act or function, such crimes (by virtue of their gravity or because they contravene peremptory norms) may not give rise to recognition of the perpetrator’s immunity from criminal jurisdiction.110 The two explanations for the inapplicability of immunity ratione materiae to international crimes identified by the ilc may be summarized as follows. The first, discussed in the previous section, is that international crimes cannot constitute acts performed in an official capacity and, as a result, do not attract immunity ratione materiae. The second presumes that international crimes may be performed in an official capacity but that such crimes, by virtue of the primary rules violated, do not attract immunity ratione materiae. The first explanation identified above for the unavailability of immunity ratione materiae in proceedings for international crimes may be explained in terms of breach. As the ilc observed, domestic courts in particular have frequently regarded international crimes as beyond the official functions of a State organ such that international crimes do not attract immunity ratione materiae, which applies only to acts undertaken in an official capacity.111 This is consistent with regarding international crimes as ultra vires where performed by State organs acting under color of law.112 According to this explanation, the breach of a primary rule that gives rise to an international crime necessarily exceeds the official capacity of a State organ because such conduct, which constitutes a violation of a peremptory norm, can never be authorized by the State so as to fall within the official function of an organ of the State from the perspective of international law.113 As a consequence, international crimes would not attract immunity ratione materiae because international law does not admit breach of the primary rule at issue as falling within the official functions of a State organ.114 110 Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 183 (2017) (Text of the draft article[s]‌, with commentary thereto, provisionally adopted by the Commission at its sixty-​ninth session, Article 7, Commentary, para. 11) (internal citation omitted). 111 Id. 112 See discussion supra, Chapter 7.a.iii (Ultra Vires Conduct). 113 Id. 114 Cf. Weatherall, op. cit. 1176–​1202. This conclusion applies, mutatis mutandis, to de facto State organs: see discussion supra, Chapter 7.a.ii (De Facto State Organs).

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The second explanation identified above for the unavailability of immunity ratione materiae in proceedings for international crimes may be explained in terms of attribution. Immunity ratione materiae reinforces the State as the sole subject of responsibility for acts of the State.115 The attribution of individual conduct, constituting a breach of an international obligation of the State, to the State has not only the effect of engaging State responsibility for that conduct, but also generally precludes individual responsibility for that same conduct. This operation is based at least in part on the premise that primary rules under international law generate obligations exclusively for the State. The State is accordingly entitled to claim those acts attributed to it as acts of the State so the individual acting in the name of the State “may not be held accountable for those acts.”116 In effect, the secondary rules of attribution and immunity concur.117 However, primary rules that give rise to international crimes expressly generate obligations for the individual as well as the State under international law,118 and conduct in breach of such rules may be attributed to each legal subject for purposes of responsibility,119 an operation defined above as “double attribution.”120 This double attribution is a feature of the primary rules in question and represents a departure from the general attribution of conduct, and allocation of responsibility, solely to the State under international law.121 The projection of sovereign immunity from the State to the individual that ordinarily follows as a consequence of attribution of conduct from the individual to the State would therefore be inconsistent with breaches of primary rules that also generate obligations for the individual under international law. Put differently, the application of immunity ratione materiae is inapposite to conduct in breach of such primary rules because the State is expressly not “entitled to claim” international crimes in order to prevent a State organ from being held responsible under international law.122 Otherwise, immunity ratione materiae

1 15 See Fox and Webb, op. cit. 364. 116 See, e.g., Blaškić (1997), para. 41. 117 de Stefano, op. cit. 19. See, e.g., Blaškić (1997), para. 38 (“[State] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-​called ‘functional immunity’.” (internal citations omitted)). 118 See discussion supra, Chapter 2.a.i (Individual-​Directed Rules). 119 See, e.g., ilc Articles on State Responsibility, Article 58, Commentary, para. 3. 120 See discussion supra, Chapter 8.b (Double Attribution). 121 Id. 122 See discussion supra, Chapter 2.a.i (Individual-​Directed Rules).

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would be virtually coextensive with international crimes performed by State organs, potentially disabling the legal architecture enabling prosecution of international crimes. As a result, immunity ratione materiae does not appear to be reconcilable with the double attribution of conduct amounting to crimes under international law. Whether the inapplicability of immunity ratione materiae to crimes under international law is explained in terms of breach or attribution, either explanation is a function of the primary rules at issue. The former is based on the inability of the State to sanction breaches of primary rules that give rise to international crimes and the latter arises from the attributability of such criminal conduct to both the individual and the State. These explanations are not mutually exclusive: both could apply where international crimes are regarded as inherently ultra vires. The ilc did not find it necessary to favor one explanation over the other given practice in support of each approach.123 Immunity ratione materiae is discussed in detail in Chapter 12.124 123 Cf. Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 183 (2017) (Text of the draft article[s]‌, with commentary thereto, provisionally adopted by the Commission at its sixty-​ninth session, Article 7, Commentary, para. 11) (excerpted infra, Chapter 12, n. 57). 124 See discussion infra, Chapter 12.a.ii (Immunity Ratione Materiae).

pa rt 4 Responsibility

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­c hapter 9

Consequences a

Consequences of Individual Criminal Responsibility

Purposes i The punitive consequences for an individual convicted of a crime under international law are a function of the purposes of criminal responsibility under international law. Arguably, the purposes of criminal responsibility under international law may be viewed analogously to the goals of incapacitation, deterrence, retribution, and rehabilitation that animate criminal law at the domestic level.1 Such analogy is potentially complicated at least in part by the international context of crimes under international law and, in turn, whether the stated goals of domestic criminal law apply with equal force to international crimes.2 International criminal courts and tribunals have focused on retribution and deterrence as the primary purposes of penalties for international crimes,3 while also taking rehabilitation into account and identifying other rationales for punishment unique to crimes under international law. Retribution appears to be a principal rationale for the punishment of perpetrators of crimes under international law.4 On the one hand, this rationale for punishment of international crimes has been closely linked to the principles underlying retribution as a purpose of punishment at the domestic level. For example, both the Appeals Chamber and Trial Chambers of the icty have explained retribution by reference to a decision by the Supreme Court of Canada, which explained that retribution should be seen as—​

1 See, e.g., Ewing v. California, 538 U.S. 11, 25 (2003) (citing 1 W. LaFave & A. Scott, Substantive Criminal Law § 1.5, pp. 30–​36 (1986) (explaining theories of punishment)). 2 Cf. Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13(3) ejil 561–​595 (2002) (also calling into question the viability of the stated purposes of criminal law at the domestic level, which is beyond the scope of this discussion). 3 See, e.g., Brđanin, it-​99-​36-​t, Judgement, para. 1090 (Sept. 1, 2004). 4 In the caselaw of the icty, see, e.g., Aleksovski, it-​95-​14/​1 -​a , Judgement, para. 185 (Mar. 24, 2000); Brđanin, it-​99-​36-​t, Judgement, para. 1090 (Sept. 1, 2004); Kordić and Čerkez, it-​95-​ 14/​2-​a , Judgement, para. 1075 (Dec. 17, 2004). In the caselaw of the ictr, see, e.g., Serushago, ictr-​98-​39-​S, Sentence, para. 20 (Feb. 5, 1999); Ntakirutimana and Ntakirutimana, ictr-​96-​ 10-​t and ictr-​96-​17-​t, Judgement, para. 882 (Feb. 21, 2003).

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an objective, reasoned and measured determination of an appropriate punishment which properly reflects the […] culpability of the offender, having regard to the intentional risk-​taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.5 In this sense, retribution in the context of international criminal law is informed by principles of proportionality that are seen to operate at the domestic level. In addition, in the context of international crimes, it appears that retribution is seen to capture an additional aspect of condemnation by the international community.6 For example, in explaining the function of retribution in this sense, the icty Appeals Chamber explained that—​ [retribution] is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes. This factor has been widely recognised by Trial Chambers of this International Tribunal as well as Trial Chambers of the International Criminal Tribunal for Rwanda. Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question and show “that the international community was not ready to tolerate serious violations of international humanitarian law and human rights.”7 While this same communitarian element may be seen to operate at least implicitly in the criminalization of conduct at the domestic level,8 it is notable in the context of international crimes that this element of disapprobation by

5 See, e.g., Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, para. 1075 (Dec. 17, 2004); Brđanin, it-​ 99-​36-​t, Judgement, para. 1090 (Sept. 1, 2004); Nikolić, it-​02-​60/​1-​s , Sentencing Judgement, paras. 86–​87 (Dec. 2, 2003) (quoting R. v. M. (C.A.), [1996] 1 s.c.r. 500, para. 80 (emphasis omitted)). 6 Aleksovski, it-​95-​14/​1 -​a , Judgement, para. 185 (Mar. 24, 2000); Brđanin, it-​99-​36-​t, Judgement, para. 1090 (Sept. 1, 2004); Nikolić, it-​02-​60/​1-​s , Sentencing Judgement, paras. 86–​87 (Dec. 2, 2003). 7 Aleksovski, it-​95-​14/​1-​a , Judgement, para. 185 (Mar. 24, 2000) (internal citation omitted). 8 R. A. Duff, Choice, Character and Criminal Liability, 12(4) Law and Philosophy 345, 381–​383 (1993).

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the international community has been frequently and explicitly articulated as a purpose underlying the retributive aspect of punishment.9 The other principal rationale for the punishment of perpetrators of crimes under international law is deterrence.10 The icty Appeals Chamber identified that penal consequences serve the goals of both individual deterrence, with respect to the accused, and general deterrence, to dissuade others from perpetrating the same or similar offences.11 This latter form of deterrence was described by the tribunal as “more accurately described as deterrence aiming at reintegrating potential perpetrators into the global society.”12 The ictr Trial Chamber similarly framed deterrence in terms of the international community, describing as its aim “to dissuade for good others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights.”13 In this way, chambers of both the icty and ictr have described a deterrent aspect of criminal penalties for international crimes to “make it abundantly clear that the international legal system is implemented and enforced,” and “to internalise these rules and the moral demands they are based on in the minds of the public.”14 The icty Appeals

9

See similarly Nikolić, it-​02-​60/​1-​s , Sentencing Judgement, paras. 86–​87 (Dec. 2, 2003); Ntakirutimana and Ntakirutimana, ictr-​96-​10-​t and ictr-​96-​17-​t, Judgement, para. 882 (Feb. 21, 2003). 10 In the caselaw of the icty, see, e.g., Aleksovski, it-​95-​14/​1 -​a , Judgement, para. 185 (Mar. 24, 2000); Tadić, it-​9 4-​1 -​a and it-​9 4-​1 -​a bis, Judgement in Sentencing Appeals, para. 48 (Jan. 26, 2000); Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, paras. 1076–​1078 (Dec. 17, 2004). In the caselaw of the ictr, see, e.g., Serushago, ictr-​98-​39-​s , Sentence, para. 20 (Feb. 5, 1999); Ntakirutimana and Ntakirutimana, ictr-​96-​10-​t and ictr-​96-​17-​t, Judgement, para. 882 (Feb. 21, 2003); Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence, para. 754 (Jan. 22, 2003); Kamuhanda, ictr-​99-​54a-​a , Judgement, para. 351 (Sept. 19, 2005). Cf. unsc Resolution 827, preamb. para. 7, U.N. Doc. S/​Res/​827 (May 15, 1993) (“Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.”); unsc Resolution 955, preamb. para. 6, U.N. Doc. S/​Res/​ 955 (Nov. 8, 1994) (same). 11 Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, paras. 1076–​1078 (Dec. 17, 2004). See also Ntakirutimana and Ntakirutimana, ictr-​96-​10-​t and ictr-​96-​17-​t, Judgement, para. 882 (Feb. 21, 2003) (“General deterrence is particularly emphasized in this respect.”). 12 Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, para. 1078 (Dec. 17, 2004). 13 Serushago, ictr-​98-​39-​s , Sentence, para. 20 (Feb. 5, 1999). 14 Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, paras. 1080–​1082 (Dec. 17, 2004). See also Nikolić, it-​02-​60/​1-​s , Sentencing Judgement, para. 87 (Dec. 2, 2003); Brđanin, it-​99-​36-​ t, Judgement, para. 1091 (Sept. 1, 2004); Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence, para. 754 (Jan. 22, 2003).

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and Trial Chambers noted, however, that deterrence does not enjoy “undue prominence” vis-​à-​vis retribution in the context of sentencing.15 While rehabilitation has been identified as a rationale for the punishment of perpetrators of international crimes, both Appeals and Trial Chambers of the icty indicated that rehabilitative considerations are secondary to retribution and deterrence as purposes of consequences of international criminal responsibility.16 The icty Appeals Chamber seemed to justify this subsidiary role for rehabilitation on the basis of the “serious nature of the crimes being prosecuted.”17 Punitive consequences for individuals convicted of crimes under international law may also serve broader purposes that receive particular emphasis in the context of international crimes. The means by which international criminal law advances its primary goals, through individual responsibility, is to enforce responsibility for crimes at the individual level, by contrast to the collective responsibility that characterizes the responsibility of States under international law.18 By allocating responsibility for international crimes in this way, international criminal law continues to reflect the famous statement by the imt at Nuremberg, 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.”19 The enforcement of international law in this sense serves purposes that are characteristic of criminal law, particularly its retributive and deterrent functions, that differentiate individual criminal responsibility from State responsibility.20 15 Aleksovski, it-​95-​14/​1 -​a , Judgement, para. 185 (Mar. 24, 2000); Tadić, it-​94-​1-​a and it-​ 94-​1-​a bis, Judgement in Sentencing Appeals, para. 48 (Jan. 26, 2000); Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, para. 1078 (Dec. 17, 2004). 16 Delalić et al., it-​96-​21-​a , Judgement, para. 806 (Feb. 20, 2001); Kordić and Čerkez, it-​95-​ 14/​2 -​a , Judgement, para. 1079 (Dec. 17, 2004). See also Kunarac et al., it-​96-​23-​t & it-​96-​ 23/​1-​t, Judgement, para. 844 (Feb. 22, 2001). 17 Delalić et al., it-​96-​21-​a , Judgement, para. 806 (Feb. 20, 2001). See also Brđanin, it-​99-​36-​t, Judgement, para. 1092 (Sept. 1, 2004). 18 International criminal law can also be seen to promote other goals, perhaps most notably national reconciliation. See, e.g., unsc Resolution 955, preamb. para. 7, U.N. Doc. S/​Res/​955 (Nov. 8, 1994); accord. Serushago, ictr-​98-​39-​s , Sentence, para. 19 (Feb. 5, 1999); Kamuhanda, ictr-​99-​54a-​t, Judgement and Sentence, para. 754 (Jan. 22, 2003); Kamuhanda, ictr-​99-​54a-​a , Judgement, para. 351 (Sept. 19, 2005). Cf. Antonio Cassese, Reflections on International Criminal Justice, 61(1) The Modern Law Review 1–​10 (1998). 19 imt Judgment and Sentences (1946), 221. 20 See discussion infra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences).

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Penalties ii International law provides that the consequences of individual responsibility for international crimes are penal in nature. The penal character of consequences of individual criminal responsibility is contemplated in instruments codifying international crimes, though often without specificity. For example, the Genocide Convention provides that States parties shall “provide effective penalties” for those convicted of genocide or associated offences.21 Similarly, the Geneva Conventions provide that States parties shall “provide effective penal sanctions” for grave breaches defined in the Conventions.22 The Torture Convention provides that States parties are to make covered offences “punishable by appropriate penalties.”23 Instruments addressing prevention and punishment of other crimes under international law similarly contemplate penal consequences for such conduct.24 The governing statutes of international criminal courts and tribunals provide greater specificity as to the content of penalties contemplated for crimes under international law. Historically, consequences for international crimes have constituted deprivation of life, liberty, or property interests of an individual convicted of an international crime. The Charter of the imt at Nuremberg contemplated death or other just punishment as the consequences for conviction of an international crime by the Tribunal.25 The Charter also contemplated the deprivation of stolen property by a person convicted by the Tribunal.26 Similarly, the Charter of the imt for the Far East contemplated the power of the Tribunal to impose death or other just punishment as the consequences of conviction of an international crime.27 The Tribunals imposed sentences on those convicted of international crimes ranging from death to fixed terms of imprisonment and forfeiture of property.28 Subsequent international criminal courts and tribunals have been empowered to impose penalties depriving individuals convicted of international crimes of liberty and property interests. The Statutes of the icty and ictr contain nearly identical provisions addressing penalties. Those Statutes 21 22 23 24 25 26 27 28

Genocide Convention (1948), Article v. Geneva Convention i (1949), Article 49; Geneva Convention ii (1949), Article 50; Geneva Convention iii (1949), Article 129; Geneva Convention iv (1949), Article 146. Torture Convention (1984), Article 4(2). See discussion supra, nn. 45–​53. imt Charter (1945), Article 27. Id., Article 28. Tokyo Charter (1946), Article 16. Cf. Mark A Drumbl, Atrocity, Punishment, and International Law 46–​50 (Cambridge: cup 2007).

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provide that the penalties to be imposed upon those convicted of international crimes are “limited to imprisonment.”29 The Statutes of the icty and ictr also contemplate the power of the respective tribunals to order the return of property and proceeds acquired by criminal conduct to its rightful owners.30 The Statute of the mict contains the same parameters of available penalties as the icty and ictr Statutes.31 The Rome Statute contemplates applicable penalties in similar terms. Article 77(1) of the Rome Statute provides for imprisonment for a period of years, or a term of life imprisonment, of a person convicted of a crime under the Statute.32 Article 77(2) contemplates potential additional consequences, including a fine and forfeiture of property.33 Article 80 provides that the penalties contemplated in the Rome Statute are without prejudice to the penalties prescribed by the national law of States parties, reflecting the complementary nature of the icc to domestic courts as well as the competence of domestic courts to prosecute international crimes.34 The penalties provided for in organizing instruments of hybrid courts and tribunals for convicted persons are also defined in terms of deprivation of liberty and property interests. The Statute of the scsl provides for imposition of penalties of imprisonment for a specified number of years and forfeiture of property unlawfully acquired.35 The penalty of imprisonment is provided for under the organizing Statute of the eccc, which also grants the Extraordinary Chamber of the trial court the power to order confiscation of property acquired unlawfully or through criminal conduct.36 The Statute of the stl provides for the imposition upon a convicted person of imprisonment for a period of years, or a term of life imprisonment.37 The Statute of the eac contains provisions on penalties that parallel those found in the Rome Statute. Specifically, the Statute provides for imprisonment for a period of years, or a term of life 29 30 31 32 33 34 35 36 37

icty Statute (1993), Article 24(1); ictr Statute (1994), Article 23(1). icty Statute (1993), Article 24(3); ictr Statute (1994), Article 23(3). mict Statute (2010), Article 22. Rome Statute (1998), Article 77(1). Id., Article 77(2). Id., Article 80. In this context, on the exclusion of the death penalty in the Rome Statute, cf. William A. Schabas, Life, Death and the Crime of Crimes: Supreme Penalties and the icc Statute, 2(3) Punishment & Society 263–​285 (2000). scsl Statute (2002), Article 19. eccc Law (2001), Articles 38–​39. stl Statute (2007), Article 24. Although the stl was organized to prosecute crimes under Lebanese law, its provision on penalties provides that, “[i]‌n determining the terms of imprisonment for the crimes provided for in this Statute, the Trial Chamber shall, as appropriate, have recourse to international practice regarding prison sentences and to the practice of the national courts of Lebanon.”

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imprisonment, of a person convicted of a crime under the Statute, as well as the possibility of a fine and forfeiture of property.38 In sum, the consequences of individual responsibility for international crimes—​prescribed by instruments codifying international crimes and authorized by the statutes governing international and hybrid judicial organs competent to prosecute such crimes—​are penal in character. Where such crimes are prosecuted before a competent criminal court or tribunal, deprivation of liberty and property interests are the primary penalties available for conviction of an international crime.39 b

Consequences of an Internationally Wrongful Act

Consequences for the Responsible State i The primary consequences for a State responsible for an internationally wrongful act are cessation of the wrongful conduct and reparation for such wrongful conduct.40 These consequences reflect the purposes of State responsibility to restore the lawful situation of a State in breach of its international obligations,41 and to “wipe out” the consequences of an internationally wrongful act so as to establish the situation that would have existed in the absence of the unlawful conduct.42 The breach of a primary rule associated with dual responsibility is contemplated at Article 41(3) of the ilc Articles on State Responsibility to give rise to the general legal consequences attendant to a breach of an international obligation attributed to the State.43 International law at present does not appear to give rise to other, specific consequences for the responsible State

38 39 40

41 42 43

eac Statute (2013), Article 24. This conclusion is without prejudice to the possible penal consequences of conviction of an international crime by a domestic court, as contemplated, for example, by Article 80 of the Rome Statute. ilc Articles on State Responsibility, Article 28, Commentary, para. 2. Accord., e.g., Clyde Eagleton, The Responsibility of States in International Law 182 (New York: New York University Press 1928) (“When an internationally illegal act has been committed, it is incumbent upon the injuring state chargeable therewith to restore the situation exactly to its former state; or, if this is impossible, to substitute in some manner, and to such an extent, as will be considered to have repaired the injury.”). See, e.g., Rainbow Warrior (1990), § 114. See discussion infra, Chapter 9.b.i.1 (Cessation). See, e.g., Factory at Chorzów (Merits), pcij, Series A., No. 17, Judgment No. 13, 47 (Sept. 13, 1928) (hereinafter, “Factory at Chorzów (Merits) (1928)”). See discussion infra, Chapter 9.b.i.2 (Reparation). Cf. ilc Articles on State Responsibility, Article 41, Commentary, para. 13.

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for breach of an obligation under a peremptory norm of general international law, however serious the breach.44 1 Cessation Cessation of wrongful conduct is the immediate consequence of State responsibility for an internationally wrongful act.45 The obligation of a State to cease wrongful conduct arises where a wrongful act is of a continuing character and the State remains subject to the obligation breached.46 The ilc has characterized cessation as a “negative” obligation associated with future performance of the primary rule whose breach gave rise to an internationally wrongful act.47 Cessation functions to restore the lawful relation of the breaching State to the primary rule at issue.48 A corollary of cessation is a “positive” obligation associated with future performance of the underlying primary rule which may, where appropriate, require the responsible State to provide “assurances and guarantees of non-​repetition.”49 An order for such assurances and guarantees is considered to be an exceptional remedy that is dependent upon circumstances that raise questions about future performance.50 Whether breach of an international obligation is established by an

44

45 46

47 48 49 50

Cf. Christian J. Tams, Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?, 13(5) ejil 1161, 1179–​1180 (2002); Hazel Fox, The International Court of Justice’s Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to the State, in Nisuke Ando et al. [Eds.], I Liber Amicorum Judge Shigeru Oda 147, 160 (The Hague: Kluwer Law International 2002) (“To allow any sanction other than reparation would surely turn [State responsibility] into a thinly disguised form of criminal responsibility.”). ilc Articles on State Responsibility, Article 30. Cf. id., Commentary, para. 4. Rainbow Warrior (1990), § 114 (“The authority to issue an order for the cessation or discontinuance of a wrongful act or omission results from the inherent powers of a competent tribunal which is confronted with the continuous breach of an international o­ bligation which is in force and continues to be in force. The delivery of such an order requires, therefore, two essential conditions intimately linked, namely that the wrongful act has a continuing character and that the violated rule is still in force at the time in which the order is issued.”). ilc Articles on State Responsibility, Article 30. Cf. id., Commentary, para. 1. Id., Commentary, para. 5. Id., Article 30. Cf. id., Commentary, para. 1. Cf. André Nollkaemper, Systemic Effects of International Responsibility for International Crimes, 8(1) Santa Clara Journal of International Law 313, 340–​344 (2010). See, e.g., Application of the Genocide Convention (2007), para. 466; LeGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 466, para. 124.

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action or omission attributable to the State may influence the content of an obligation of cessation.51 Orders for cessation of wrongful conduct may be found in judgments concerning breach of obligations erga omnes related to international crimes. For example, in its 2007 Application of the Genocide Convention judgment, the icj found that Serbia had breached obligations erga omnes under the Genocide Convention by failing to transfer Ratko Mladić, who had been indicted for genocide, to the icty for prosecution.52 The court accordingly ordered Serbia to take immediate steps to ensure full compliance with its obligations under the Genocide Convention, to transfer individuals accused of genocide to the icty, and to cooperate fully with the icty, consistent with the performance of obligations it was found to have breached.53 Similarly, in its 2012 Questions Relating to the Obligation to Prosecute or Extradite judgment, the icj found that Senegal had breached obligations erga omnes under the Torture Convention by failing to investigate and prosecute the case of Hissène Habré.54 The court ordered Senegal to extradite or prosecute Habré, consistent with the performance of obligations it was found to have breached.55 In each of these examples, the State responsible for an internationally wrongful act remained subject to the underlying primary rule and its breach was of a continuing character.56 Orders by the icj to perform obligations breached can be seen as requiring cessation of wrongful conduct in view of such wrongfulness as arising from omissions by the State. 51

52 53

54 55 56

James Crawford, State Responsibility: The General Part 218 (Cambridge: cup 2013); Franck Latty, Actions and Omissions, in James Crawford et al. [Eds.], The Law of International Responsibility 362–​363 (Oxford: oup 2010). See discussion supra, Chapter 7.b.ii (Actions and Omissions). Application of the Genocide Convention (2007), para. 471(6). Application of the Genocide Convention (2007), para. 471(8). The court further concluded, with respect to certain breaches of obligations under the Genocide Convention, that “the case is not one in which in which an order for payment of compensation, or … a direction to provide assurances and guarantees of non-​repetition, would be appropriate.” Id. para. 471(9). Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69, 88, 117. Id. para. 122(6). See similarly Application of the Genocide Convention (2020), para. 2 (The Gambia seeking an order that Myanmar “has breached and continues to breach its obligations under the Genocide Convention,” “must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention,” and “must offer assurances and guarantees of non-​repetition of violations of the Genocide Convention.”). In the context of breaches of obligations erga omnes more generally, see, e.g., Construction of a Wall (2004), para. 163.

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2 Reparation The obligation to make reparation for an internationally wrongful act is the other primary consequence of State responsibility.57 The function of reparation is to, “as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”58 There is no general requirement that a State must have suffered material injury in order to seek reparation for breach.59 Restitution, compensation, and satisfaction are the forms of reparation available for an internationally wrongful act.60 The function of restitution is “to re-​establish the situation which existed before the wrongful act was committed.”61 The pcij, in Factory at Chorzów, contemplated restitution to be the primary form of reparation for injury caused by an internationally wrongful act, a position endorsed by the ilc in its Articles on State Responsibility.62 Impossibility and proportionality (particularly in relation to the alternative of compensation) constitute limitations on the obligation to make restitution.63 The ilc, in its commentary to the Articles on State Responsibility, emphasized the importance of restitution where the obligation breached arises from a peremptory norm, and noted in such instances that restitution may more closely resemble cessation insofar as restitution is seen as an aspect of compliance with such primary rule.64 Restitution is the preferred form of reparation for an internationally wrongful act from the perspective of international law, except where restitution is materially impossible or disproportionate as compared to reparation through

57

58 59 60 61 62 63 64

Factory at Chorzów (Jurisdiction), pcij, Series A, No. 9, Judgment No. 8, 21 (July 26, 1927) (“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”). Accord., e.g., icj Statute, Article 36(2); Statute of the Permanent Court of International Justice, Article 36, 6 l.n.t.s. 389 (Dec. 16, 1920, entered into force Aug. 20, 1921). See ilc Articles on State Responsibility, Article 31(1). Factory at Chorzów (Merits) (1928), 47. Rainbow Warrior (1990), §§ 109–​110 (referring to damage “of a moral, political, and legal nature.”). Accord. ilc Articles on State Responsibility, Article 31(2). ilc Articles on State Responsibility, Article 34. Id., Article 35. Factory at Chorzów (Merits) (1928), 48. Cf. ilc Articles on State Responsibility, Article 35, Commentary, para. 3. ilc Articles on State Responsibility, Article 35. Id., Commentary, paras. 3, 6. Cf. Application of the Genocide Convention (2015), para. 50 (in which both Croatia and Serbia initially sought reparation that might be characterized as restitution).

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compensation.65 Where restitution does not provide reparation, a responsible State is under an obligation to provide compensation for damage caused by such act.66 According to the icj, in Gabčíkovo-​Nagymaros Project, “[i]‌t is a well-​established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it.”67 Compensation is based on “financially assessable damage” suffered by a State or its nationals and, as a result, whether such reparation is appropriate will depend upon the nature of the breach at issue.68 Relatedly, compensation for an internationally wrongful act is not punitive in character.69 In international law at present, the non-​punitive character of compensation pertains where human rights violations are attributable to the State.70 The same conclusion appears to apply with equal force to 65

66 67 68

69 70

Factory at Chorzów (1928) (Merits), 48 (“The impossibility, on which the Parties are agreed, of restoring the Chorzów factory could therefore have no other effect but that of substituting payment of the value of the undertaking for restitution.”). See ilc Articles on State Responsibility, Article 35. ilc Articles on State Responsibility, Article 36(1). Gabčíkovo-​Nagymaros Project (Hungary /​Slovakia), Judgment, i.c.j. Reports 1997, p. 7, para. 152 (hereinafter, “Gabčíkovo-​Nagymaros Project (1997)”). ilc Articles on State Responsibility, Article 36, Commentary, para. 4. See, e.g., Application of the Genocide Convention (2007), para. 471(9) (finding, with respect to Serbia’s breach of obligations to prevent genocide in Srebrenica, that “the case is not one in which an order for payment of compensation … would be appropriate.”). ilc Articles on State Responsibility, Article 36, Commentary, para. 4. Cf. Crawford, op. cit. 526 (“the idea of punitive damages under international law is currently unsustainable.”). See, e.g., Velasquez Rodriguez Case, IACtHR, Judgment of July 21, 1989, (Ser. C) No. 7, para. 38 (Compensatory Damages (Art. 63(1) American Convention on Human Rights)) (“The expression ‘fair compensation’, used in Article 63(1) of the [American] Convention [on Human Rights] to refer to a part of the reparation and to the ‘injured party’, is compensatory and not punitive. Although some domestic courts, particularly the Anglo-​American, award damages in amounts meant to deter or to serve as an example, this principle is not applicable in international law at this time.”); Guiso-​Gallisay v. Italy, ECtHR (Grand Chamber), No. 58858/​00, Judgment (Just satisfaction), paras. 85, 103 (Dec. 22, 2009) (“The criteria to be used in assessing damages for the purposes of Article 41 … must be such as to create a serious and effective means of dissuasion with regard to the repetition of unlawful conduct of the same type, without however assuming a punitive function. … [T]‌he Court considers that automatically assessing the losses sustained by the applicants as the equivalent of the gross value of the buildings erected by the State cannot be justified. … [S]uch a compensation method assigns a punitive or dissuasive role to c­ ompensation for pecuniary damage vis-​à-​vis the respondent State, rather than a compensatory role vis à-​ vis the applicants.”). See also ilc Articles on State Responsibility, Article 36, Commentary, para. 19. For a different perspective, see Dinah Shelton, Remedies in International Human Rights Law 402–​ 420 (Chapter 13—​ Punitive or Exemplary Damages) (Oxford: oup 2015).

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internationally wrongful acts arising from breaches of obligations of primary rules associated with international crimes.71 A third form of reparation for an internationally wrongful act is satisfaction.72 The ilc, in its Articles on State Responsibility, characterized satisfaction to be an exceptional remedy that is appropriate where reparation cannot be made through restitution or compensation.73 Satisfaction may be particularly appropriate in cases of “non-​material” injury, such as so-​called moral or legal damage, which may arise from the fact of breach itself, and where other forms of reparation may be inapposite.74 Satisfaction may consist, for example, in a finding of wrongfulness by a competent court or tribunal,75 or an apology by the responsible State.76 Punishment of individuals responsible for underlying conduct attributed to the State giving rise to an internationally wrongful act may constitute a form of satisfaction.77 As with other forms

71 72 73 74

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77

Cf. Tams, op. cit. 1166–​1170. See, e.g., Corfu Channel (1949), 35. ilc Articles on State Responsibility, Article 37. See, e.g., Rainbow Warrior (1990), § 122 (“There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities.”). Cf. ilc Articles on State Responsibility, Article 37, Commentary, paras. 3–​4. See, e.g., Corfu Channel (1949), 35 (“[T]‌o ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. This declaration … is in itself appropriate satisfaction.”); Arrest Warrant (2002), para. 75 (“The Court considers that the findings so reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo.”); Application of the Genocide Convention (2007), para. 471(9). Cf. ilc Articles on State Responsibility, Article 37, Commentary, para. 6. See, e.g., Case concerning the differences between New Zealand and France arising from the Rainbow Warrior affair, Ruling of 6 July 1986 by the Secretary-​General of the United Nations, xix riaa 199–​221, § 1, U.N. Sales No. E/​F.90.v.7 (1990). Cf. ilc Articles on State Responsibility, Article 37(2); id., Commentary, para. 7. Shabtai Rosenne, State Responsibility and International Crimes: Further Reflections on Article 19 of the Draft Articles on State Responsibility, 30(1 & 2) New York University Journal of International Law and Policy 145, 164 (1997) (“Adequate punishment of an accused whose acts are attributable to a State may be adequate satisfaction if the responsibility of that State is established. A judgment of an international court or tribunal can in itself constitute satisfaction in a case of international responsibility.”). See Report of the Commission to the General Assembly on the Work of its Forty-​Eighth Session, [1996] ii(2) YbILC 58 et seq., at 63, U.N. Doc. A/​51/​10, a/​c n.4/​s er.a/​1 996/​Add.1 (Part 2) (text of the draft articles provisionally adopted by the Commission on the first reading) (Article 45(2)(d)) (“In cases where the internationally wrongful act arose from

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of reparation for internationally wrongful acts, satisfaction is not punitive in character.78 The icj, in judgments finding breaches of obligations erga omnes related to international crimes, has contemplated reparation in terms of the modalities identified above. For example, in its 2007 Application of the Genocide Convention decision, the icj held, with respect to its findings that Serbia had breached its obligations to prevent genocide in relation to genocide at Srebrenica, that “the Court’s findings in those paragraphs constitute appropriate satisfaction.”79 The court further found that the case was not one in which an order for payment of compensation would be appropriate,80 and the circumstances of the case precluded restitution as an available remedy. In Questions Relating to the Obligation to Prosecute or Extradite, Belgium specifically sought declarations by the icj that Senegal had breached obligations erga omnes under the Torture Convention by failing to investigate and prosecute the case of Hissène Habré, which might be characterized as a form of satisfaction ultimately provided by the court.81 The icj has also identified obligations to make reparation in relation to breach of other obligations erga ommes,82 and breach of obligations under international human rights law and international humanitarian law.83 Practical differences between State responsibility arising concurrently with, and complementary to, individual responsibility may have implications for the appropriate modalities of reparation to be awarded. In this regard, the distinction between actions and omissions as the basis for establishing breach of an

78

79 80 81 82 83

the serious misconduct of officials or from criminal conduct of officials or private parties, [satisfaction may take the form of] disciplinary action against, or punishment of, those responsible.”). However, where punishment constitutes performance of associated obligations, it is unclear such punishment would be regarded as satisfaction. See Third Report on State Responsibility (James Crawford, Special Rapporteur), at 56, para. 192 (“Disciplinary or penal action is a further specific form of satisfaction … in practice [it has] occurred, although it may not always be clear whether prosecution of criminal conduct was sought by way of satisfaction or as an aspect of performance of some primary obligation.”). ilc Articles on State Responsibility, Article 37(3); id., Commentary, para. 8. For a different view, see Sixth Report on State Responsibility (García Amador, Special Rapporteur), para. 56, U.N. Doc. a/​c n.4/​134 & Add.1, [1961] ii YbILC 1 et seq., at 14, U.N. Doc. a/​c n.4/​s er.a/​ 1961/​Add.1 (describing satisfaction as “essentially and invariably penal in character.”). Application of the Genocide Convention (2007), para. 471(9) (this finding extended to Serbia’s failure to comply with the court’s provisional measures order in that case). Id. For commentary on this aspect of the decision, see Christian Tomuschat, Reparation in Cases of Genocide, 5(4) jicj 905–​912 (2007). Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 13–​14, 71. See, e.g., Construction of a Wall (2004), para. 163. Armed Activities on the Territory of the Congo (2005), para. 259.

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international obligation of the State bears recalling.84 One might extrapolate from the decisions above that an award for compensation might be relatively less likely in cases where State responsibility adjudged is of a complementary character, for example, by failing to perform obligations to prevent and punish unlawful individual conduct.85 By contrast, an award of compensation might be seen to be comparatively more likely in cases where criminal conduct is attributable to the State, such that State responsibility arises from attribution of unlawful individual conduct.86 This situation more closely resembles cases of breach of obligations under international human rights law and international humanitarian law attributable to the State.87 This approach is also reflected in awards of compensation by regional human rights courts to victims of human rights violations. To the extent that practice reflects such a distinction in modalities of reparation with respect to compensation, it may be influenced by whether breach is established by a wrongful action attributed to the State or by an omission of the State. Where reparation is sought by a third-​State on the basis of the erga omnes character of the primary rule at issue, such reparation is in the interest of the beneficiaries of the obligation breached rather than the State invoking responsibility.88 For example, in its 2019 application to the icj regarding alleged breaches of the Genocide Convention, the Gambia sought an order that Myanmar “perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group,” to include restitution.89 In this regard, although satisfaction is typically understood as a remedy for non-​material injury suffered by a State, where remedies are pursued on behalf of aggrieved people—​individual victims whose human dignity has been compromised by the violation of a relevant primary rule—​it is conceivable that such people, too, may benefit from satisfaction. The 2007 Application of the Genocide Convention judgment is notable in this regard, in which the icj held, with respect to genocide in Srebrenica, that its findings with respect to that atrocity constituted appropriate satisfaction.90 This aspect of satisfaction 84 85 86 87

88 89 90

See discussion supra, Chapter 7.b.ii (Actions and Omissions). See discussion supra, Chapter 4.d (Complementary State Responsibility). See discussion supra, Chapter 4.c (Concurrent State Responsibility). See, e.g., Armed Activities on the Territory of the Congo (2005), para. 259. Cf. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 1 July 2015, i.c.j. Reports 2015, p. 580, para. 8 (resuming proceedings on the question of reparations). See discussion infra, Chapter 9.b.iii.2 (Beneficiaries of Invocation of Responsibility). Application of the Genocide Convention (2020), para. 2. Application of the Genocide Convention (2007), para. 471(9).

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is exemplified where remedies are sought by a third-​State on the basis of the erga omnes character of the primary rule at issue, in the interest of the beneficiaries of the obligation breached rather than the State invoking responsibility.91 This is illustrated, for example, by proceedings referred to above instituted by The Gambia against Myanmar before the icj, the principal beneficiaries of which are Rohingya in Myanmar.92 ii Consequences beyond the Responsible State There is support for the proposition that breaches of primary rules associated with international crimes (i.e., peremptory norms), or obligations erga omnes arising therefrom, give rise to consequences not only for the responsible State, but also for third-​States.93 Such consequences, which may be viewed in the context of obligations erga omnes related to the prevention and punishment of violations of certain primary rules, have been conceived as a function of the erga omnes character of obligations associated with those primary rules. The ilc has analogized consequences for third-​States arising from breaches of such primary rules in similar terms to the entitlement of third-​States to invoke international responsibility on the basis of a common legal interest in the performance of obligations erga omnes.94 Because consequences for third-​States relate to the suppression of breaches of primary rules occurring beyond the jurisdiction of States to which such consequences would apply, 91 92 93

94

See discussion supra, Chapter 9.b.iii.2 (Beneficiaries of Invocation of Responsibility). Application of the Genocide Convention (2020), paras. 1–​2, 56. This language is intentionally vague. The ilc Articles on State Responsibility, at Article 40, contemplate such consequences in terms of the magnitude of a “breach of peremptory norms” and conceives of the seriousness of a breach in terms of the organization or intensity of “the violation … of the peremptory norms in question.” See ilc Articles on State Responsibility, Article 40, Commentary, paras. 7–​8. By contrast, the icj contemplates such consequences in relation to the erga omnes character of the obligation breached. See, e.g., Construction of a Wall (2004), para. 159; South West Africa (1971), para. 126. This divergence is discussion further infra. ilc Articles on State Responsibility, Part Two, Chapter iii, Commentary, para. 7 (“While peremptory norms of general international law focus on the scope and priority to be given to a certain number of fundamental obligations, the focus of obligations to the international community as a whole is essentially on the legal interest of all States in compliance—​i.e. in terms of the present articles, in being entitled to invoke the responsibility of any State in breach. Consistently with the difference in their focus, it is appropriate to reflect the consequences of the two concepts in two distinct ways. First, serious breaches of obligations arising under peremptory norms of general international law can attract additional consequences, not only for the responsible State but for all other States. Secondly, all States are entitled to invoke responsibility for breaches of obligations to the international community as a whole.”).

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these consequences resemble the scope of obligations to extradite or prosecute those allegedly responsible for international crimes.95 In both instances, States are empowered and in some respects obligated to take certain actions within their competence in relation to breaches of primary rules even if such breaches occur beyond their jurisdiction.96 These aspects of relevant primary rules can be understood in relation to the scope of those rules and, in particular, obligations erga omnes arising under such rules. 1 Serious Breaches In the view of the ilc, breaches of obligations arising under peremptory norms only give rise to consequences for third-​States where such breaches meet a threshold of seriousness.97 According to Article 40(2) of the ilc Articles on State Responsibility, a breach of an obligation arising under a peremptory norm “is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.”98 The terms “gross” and “systematic” are defined in the commentary to Article 40 as referring respectively to the intensity and organization of the violations at issue.99 Use of the term “violation,” rather than “breach,” suggests that the ilc contemplates the seriousness of a breach of an obligation arising under a peremptory norm in terms of violation of the associated peremptory norm itself. For example, the ilc explains in its commentary that the prohibitions of aggression and genocide “by their very nature require an intentional violation on a large scale” that would generally satisfy its criteria for the seriousness requirement.100 As such, violations of these primary rules would appear to indicate serious breaches of associated obligations erga omnes. Whether it is desirable for consequences for breaches of obligations erga omnes to be limited by a criterion of seriousness is unclear, as is the basis of 95 96

Cf. Thomas Weatherall, Jus Cogens 351–​383 (Cambridge: cup 2015). See discussion supra, Chapter 4.d.ii.2 (Attribution of International Crimes not a Prerequisite). 97 ilc Articles on State Responsibility, Article 40. 98 Id. 99 Id., Commentary, para. 8 (“To be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term ‘gross’ refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule. The terms are not of course mutually exclusive; serious breaches will usually be both systematic and gross. Factors which may establish the seriousness of a violation would include the intent to violate the norm; the scope and number of individual violations; and the gravity of their consequences for the victims.”). 100 Id.

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such a limitation in customary international law. In this regard, the icj, in judgments articulating consequences for third-​States arising from obligations erga omnes, has based such consequences only on the erga omnes character of the obligation breached, rather than whether such breach satisfies a threshold of seriousness.101 Relatedly, while the savings clause at Article 54 of the Articles on State Responsibility contemplates the entitlement of third-​States to undertake measures “in the general or collective interest,” the potential availability of such measures is not similarly conditioned upon the seriousness of the breach of the obligation at issue.102 Setting aside whether the seriousness criterion is reflected in customary international law, and whether it is desirable, its function as contemplated in the ilc Articles on State Responsibility is limited to ascertaining whether breach of an obligation erga omnes gives rise to consequences for States other than the responsible State. As such, the provisions of the Articles on State Responsibility that conceive of the seriousness criterion do not, by their terms, address the responsibility of the responsible State.103 While the seriousness criterion at Article 40 has been associated with the concept of an “aggravated” form of State responsibility,104 it does not appear that either the ilc Articles on State Responsibility or customary international law supports such a notion. As demonstrated above, the operation of secondary rules of State responsibility with respect to international crimes and associated primary rules is not contingent upon a criterion of seriousness and does not contemplate stratification between “ordinary” and “aggravated” State responsibility.105 2 Third-​State Consequences The icj has articulated three consequences for third-​States arising from breaches of obligations erga omnes by a responsible State: non-​recognition and

1 01 Construction of a Wall (2004), para. 159; South West Africa (1971), para. 126. 102 ilc Articles on State Responsibility, Article 54 (“This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.”). See id., Article 54, Commentary, para. 6. 103 Cf. James Crawford, International Crimes of States, in James Crawford et al. [Eds.], The Law of International Responsibility 409–​410 (Oxford: oup 2010). 104 Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes 75–​ 81 (Leiden: Martinus Nijhoff 2009). See similarly Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide, 18(4) ejil 635–​637 (2007). 105 See discussion supra, Chapter 4.a (Elements of State Responsibility).

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non-​maintenance of such breaches, and cooperation to bring such breaches to an end. The ilc has identified these same consequences as arising from serious breaches of obligations under peremptory norms at Article 41 of the Articles on State Responsibility. A Non-​recognition and Non-​maintenance Where a State is responsible for a breach of an obligation erga omnes, one consequence for third-​States is an obligation not to recognize the lawfulness of a situation resulting from, or maintained by, the breach of that primary rule. The icj has twice articulated this obligation in relation to obligations erga omnes, though not in the context of those obligations as they arise from peremptory norms in relation to international crimes.106 In these cases, the icj has articulated a parallel obligation that States not aid or assist in the maintenance of such a situation.107 Although the icj articulated these consequences in cases concerning continuing breaches of the right to self-​determination, such consequences would seem applicable in principle to situations arising from breaches of obligations erga omnes arising from peremptory norms. The ilc, at Article 41(2) of the Articles on State Responsibility, has articulated this rule in relation to serious breaches of obligations arising from peremptory norms in the following terms: “[n]‌o State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.”108 B Cooperation While the foregoing consequences might be characterized as negative in character, another consequence that has been articulated for third-​States where a State is responsible for a breach of an obligation erga omnes is affirmative and calls on third-​States to cooperate to bring an end to such breach. The icj has described this consequence as arising for third-​States, to the extent permitted by the Charter of the United Nations and international law.109 The ilc, at Article 41(1) of the Articles on State Responsibility, defined this rule in relation to serious breaches of obligations arising from peremptory norms: “States shall cooperate to bring to an end through lawful means any serious breach.”110 According to the ilc, where a responsible State has breached an obligation 1 06 107 108 109 110

See Construction of a Wall (2004), para. 159; South West Africa (1971), para. 126. Id. ilc Articles on State Responsibility, Article 41(2). Construction of a Wall (2004), para. 159; South West Africa (1971), para. 126. ilc Articles on State Responsibility, Article 41(1).

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arising under a peremptory norm, and such breach is serious in character, third-​States are under a “positive duty” to pursue cessation of that breach.111 At the time the Articles on State Responsibility were finalized, the ilc acknowledged in its commentary that such a duty may be an area of progressive development.112 Practice in this area suggests that cooperation to bring an end to breaches of obligations erga omnes is dependent upon the underling violations at issue.113 In its 1971 South West Africa advisory opinion, for example, the icj called on States to refrain from lending support or assistance to the maintenance of the situation in Namibia, and advised on various measures for States to undertake that appeared to be directed at bringing an end to the unlawful situation resulting from South Africa’s presence in Namibia.114 State practice suggests other examples of cooperation undertaken by third-​States in response to breaches of obligations arising from peremptory norms.115 Standing iii The common legal interest of States in the performance of obligations erga omnes confers upon those States the entitlement to invoke the international responsibility of a State in breach of such an obligation.116 This rule is reflected at Article 48 of the ilc Articles on State Responsibility, which provides in relevant part:



Any State other than an injured State is entitled to invoke the responsibility of another State … if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.117

111 Id., Article 41, Commentary, para. 2 (“States are under a positive duty to cooperate in order to bring to an end serious breaches in the sense of article 40.”). 112 Id., Commentary, para. 3. 113 Cf. Linos-​ Alexandre Sicilanos, Countermeasures in Response to Grave Violations of Obligations Owed to the International Community, in James Crawford et al. [Eds.], The Law of International Responsibility 1137–​1148 (Oxford: oup 2010). 114 South West Africa (1971), paras. 119, 122–​24. 115 Cf. Weatherall, op. cit. 355–​363. 116 See discussion supra, Chapter 2.a.ii (State-​Directed Rules). 117 ilc Articles on State Responsibility, Article 48(1).

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This consequence of the general legal interest of States in the performance of obligations erga omnes applies both to obligations erga omnes arising in relation to peremptory norms of general international law, as obligations owed to the international community as a whole (as contemplated by Article 48(1) (b)), as well as obligations erga omnes partes arising under certain multilateral international agreements, which obligations are owed to States parties to such agreements (addressed by Article 48(1)(a)).118 Article 48 represents an expansion of the general rule governing invocation of responsibility by an injured State, reflected at Article 42 of the Articles on State Responsibility.119 1 Common Legal Interest in Performance Standing to invoke international responsibility on the basis of the erga omnes character of an obligation represents an expansion upon the general rule governing invocation of responsibility, which is limited to injured States.120 This expansion might be viewed from the perspective of injury arising from the common legal interest of States in the performance of obligations erga omnes, such that all States to which such obligations are owed are injured by their breach. Article 48, however, contemplates this expansion upon the general rule governing invocation of responsibility as an entitlement of States not injured by such breach to invoke responsibility. From this standpoint, the standing to invoke international responsibility in the context of obligations erga omnes is perhaps better viewed in terms of common legal interest than injury. The entitlement of a non-​injured State to invoke international responsibility for breach of an obligation erga omnes on the basis of a common legal interest in its performance is reflected in the caselaw of the icj. In Questions Relating to the Obligation to Prosecute or Extradite, the icj articulated this position with respect to certain obligations under the Torture Convention: The States parties to the [Torture] Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. … All the other States parties have a common interest in compliance with [associated] obligations. … That common interest implies that the obligations 118 See id., Article 48, Commentary, para. 6 (noting that obligations owed to a group established for the protection of a collective interest may arise under multilateral treaties or customary international law). 119 See ilc Articles on State Responsibility, Article 42 (Invocation of responsibility by an injured State). 120 Id.

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in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved. These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case. … The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party.121 The court identified the common legal interest in the performance of obligations erga omnes as the basis for the entitlement of a State to which such obligation is owed to invoke the responsibility of a breaching State. In its 2020 provisional measures order in Application of the Genocide Convention, the icj restated this position and, in so doing, linked the common legal interest in the performance of obligations erga omnes with the “shared values” underlying the primary rules associated with such obligations: In view of their shared values, all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention.122 In sum, the common legal interest in the performance of obligations erga omnes of States to which such obligations are owed confers upon those States an entitlement to invoke the international responsibility of a State in breach of such obligations. Because all States to which an obligation erga omnes is owed have a ­common legal interest in its performance, it follows that a State invoking international responsibility for its breach requires no “special interest” in the performance of such obligation. On this basis, for example, the icj declined in Questions Relating to the Obligation to Prosecute or Extradite to pronounce on

121 Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69 (citing Barcelona Traction (1970), para. 33, and Reservations to the Genocide Convention (1951), 23). 122 Application of the Genocide Convention (2020), para. 41 (citing Reservations to the Genocide Convention (1951), 23).

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any special interest Belgium might have had in Senegal’s performance of its obligations under the Torture Convention with respect to the prosecution of Hissène Habré.123 The common legal interest of States parties to the Torture Convention was sufficient to entitle Belgium to invoke Senegal’s responsibility for breach of its obligations erga omnes. In its 2020 Application of the Genocide Convention provisional measures order, the icj went further in this regard to state explicitly that no special interest is necessary to invoke responsibility for breach of an obligation erga omnes. After referring to its earlier judgment in Questions Relating to the Obligation to Prosecute or Extradite, and analogizing obligations erga omnes arising under the Torture Convention to those under the Genocide Convention, the court concluded: It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.124 In the view of the icj, a State invoking responsibility for breach of an obligation erga omnes requires no special interest in compliance by a breaching State because the common legal interest in the performance of such obligation is a sufficient basis for the invocation of responsibility. 2 Beneficiaries of Invocation of Responsibility The absence of a requirement of injury or special interest by a State invoking responsibility for breach of an obligation erga omnes is relevant to the beneficiaries of the primary rules at issue. The icj noted, in Questions Relating to the Obligation to Prosecute or Extradite, that “[i]‌f a special interest were required for that purpose, in many cases no State would be in the position to make such a claim.”125 Indeed, with respect to obligations erga omnes related to international crimes, it may often be the case that no State can be said to have been injured by the breach of such an obligation; there may similarly be no State with a special interest in such a breach. Even in such a case, however, it does not follow that there is no beneficiary of the obligation breached. The ilc, in its commentary to Article 48 of the Articles on State Responsibility, noted in this regard a distinction “between the capacity of the applicant State to raise the

1 23 Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 69–​70. 124 Application of the Genocide Convention (2020), para. 41. 125 Questions relating to the Obligation to Prosecute or Extradite (2012), para. 69.

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matter and the interests of the beneficiaries of the obligation.”126 This distinction is illustrated by proceedings instituted by The Gambia against Myanmar in Application of the Genocide Convention, in which the principal beneficiaries of the obligations allegedly breached by Myanmar are Rohingya in Myanmar. In its 2020 provisional measures order in that case, the icj found: [T]‌he rights claimed by The Gambia and for which it is seeking protection—​namely the right of the Rohingya group in Myanmar and of its members to be protected from acts of genocide and related prohibited acts … and the right of The Gambia to seek compliance by Myanmar with its obligations not to commit, and to prevent and punish genocide in accordance with the Convention—​are plausible.127 The icj’s observation underscores the relationship between the common legal interest in the performance of obligations erga omnes and the beneficiaries of associated primary rules. Those beneficiaries may be people rather than States, injured or otherwise, and the “shared values” reflected by such rules, in the view of the icj, give rise to a common legal interest in performance of obligations erga omnes in favor of their beneficiaries.128 As the beneficiary of an obligation erga omnes may differ from the State invoking responsibility for its breach, the remedies that such State might claim may differ from those that might be claimed by an injured State. This is reflected at Article 48(2) of the ilc Articles on State Responsibility, which contemplates the remedies that might be claimed by a State other than an injured State. 126 See ilc Articles on State Responsibility, Article 48, Commentary, para. 12 (“In case of breaches of obligations under article 48, it may well be that there is no State which is individually injured by the breach, yet it is highly desirable that some State or States be in a position to claim reparation, in particular restitution. In accordance with paragraph 2 (b), such a claim must be made in the interest of the injured State, if any, or of the beneficiaries of the obligation breached. … [C]‌ertain provisions, for example in various human rights treaties, allow invocation of responsibility by any State party. In those cases where they have been resorted to, a clear distinction has been drawn between the capacity of the applicant State to raise the matter and the interests of the beneficiaries of the obligation.”). 127 Application of the Genocide Convention (2020), para. 56. 128 See similarly South West Africa (1971), para. 127 (“[A]‌ll States should bear in mind that the injured entity is a people which must look to the international community for assistance in its progress towards the goals for which the sacred trust was instituted.”). In the South West Africa cases, the “injured entity” was the people of South West Africa on whose behalf Ethiopia and Liberia had instituted proceedings. See South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, i.c.j. Reports 1962, p. 319; South West Africa, Second Phase, Judgment, i.c.j. Reports 1966, p. 6.

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Any State entitled to invoke responsibility … may claim from the responsible State:

(a) cessation of the internationally wrongful act, and assurances and guarantees of non-​repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.129

Practice illustrates that States invoking responsibility for breach of obligations erga omnes on the basis of their common legal interest in performance have sought such remedies that are not directed toward the benefit of the invoking State. In Questions Relating to the Obligation to Prosecute or Extradite, Belgium sought from the icj declarations that Senegal had breached certain obligations erga omnes, and that Senegal was required to cease its internationally wrongful acts by performing those obligations.130 Similarly, in Application of the Genocide Convention, The Gambia sought from the icj declarations that Myanmar had breached certain obligations erga omnes, and that Myanmar must cease its internationally wrongful acts by performing those obligations, ensure punishment of persons responsible for acts of genocide, perform its obligation of reparation toward beneficiaries of the obligations breached (namely, Rohingya in Myanmar), and offer assurances and guarantees of non-​ repetition.131 In each of these cases, the State invoking responsibility sought remedies not in its own interest, but rather, in furtherance of the obligations in which the invoking State shared a common legal interest in performance. Moreover, in Application of the Genocide Convention, remedies were pursued by The Gambia expressly in favor of Rohingya in Myanmar, the beneficiaries of obligations erga omnes allegedly breached by Myanmar. c

Differentiation in Forms of Responsibility and Their Consequences

That individual criminal responsibility and State responsibility pursue different aims is well established.132 The consequences arising from individual 1 29 130 131 132

ilc Articles on State Responsibility, Article 48(2). Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 13–​14, 71. Application of the Genocide Convention (2020), para. 2. Application of the Genocide Convention (2015), para. 129. Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 44 (Oxford: 3d ed. oup

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responsibility for crimes under international law serve retributive and deterrent ends, among others, leading to the possible deprivation of liberty and property interests of convicted individuals.133 By contrast, the purposes of State responsibility are to restore the lawful situation of a State in breach of its international obligations,134 and to “wipe out” the consequences of an internationally wrongful act so as to establish the situation that would have existed in the absence of the unlawful act.135 The obligations of cessation and reparation, as consequences arising as a result of an internationally wrongful act, are more analogous to civil remedies in domestic legal systems than sanctions to which an individual may be subject under criminal law.136 These distinctions between individual criminal responsibility and State responsibility pertain notwithstanding the applicability of a limited category of primary rules to both the individual and the State that may give rise to the responsibility of each subject concurrently. The divergent purposes and consequences of individual and State responsibility suggest that the law of State responsibility is ill-​suited to adopt the punitive ends of international criminal law. The modalities of the law of State responsibility would be required to change fundamentally—​both substantively and procedurally—​in order to accommodate a form of criminal State responsibility with concomitant penal consequences.137 This incongruence is compounded by fundamental differences between individuals and States as subjects of international law that inform the operation of the law itself, as

1 33 134 135 136 137

2014) (“The laws of state responsibility and criminal law also differ in their legal consequences. While the legal consequences under the law of state responsibility aim only to restore a situation that conforms to international law, sanctions in international criminal law are of a punitive and preventive nature.” (internal citation omitted)). See discussion supra, Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). See discussion supra, Chapter 9.a.ii (Penalties). See, e.g., Rainbow Warrior (1990), § 114. See discussion supra, Chapter 9.b.i.1 (Cessation). Factory at Chorzów (Merits) (1928), 47. See discussion supra, Chapter 9.b.i.2 (Reparation). See Ian Brownlie, 1 System of the Law of Nations: State Responsibility 23 (Oxford: oup 1983) (describing State responsibility as a “form of civil liability”). A possible exception might be in the field of compensation, however even here, the possibility of punitive damages as a form of reparation are generally excluded from the law of State responsibility. See, e.g., ilc Articles on State Responsibility, Article 36, Commentary, para. 4. Cf. Crawford, op. cit. 526 (“the idea of punitive damages under international law is currently unsustainable.”); see discussion supra, Chapter viii.a (Principles of Attribution: Culpability and Objectivity Distinguished).

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reflected, for instance, in secondary rules of attribution.138 The incompatibility between the corporate entity of the State and elements of crime complicates any State-​directed analogue to criminal law.139 Illustratively, as discussed at length above, there is no equivalent to an individual’s mens rea manifested by the State and, to the extent that attribution of individual criminal conduct incorporates an element of individual mens rea, such incorporation is technically objective in character.140 In light of this, it unclear how “State criminality” might be assessed separately from the criminality of individuals whose conduct might be attributed to the State. These factors may contribute to the lack of practice supporting State crimes.141 It remains the case, however, that crimes under international law are often also abuses of State authority.142 The evolution of international criminal law may itself be viewed as the product of progressive efforts to hold accountable State agents responsible for the most serious violations of international law. From the international criminal tribunals established after the Second World War, through the various ad hoc international criminal tribunals, and arguably to the establishment of a permanent international criminal court, 138 See discussion supra, Chapter 8.a (Principles of Attribution: Culpability and Objectivity Distinguished). See also Chapter 5.a (Relationship Between Elements of Individual and State Responsibility). 139 This point is acknowledged by at least one proponent of State crimes: see, e.g., Plan de Sánchez Massacre v. Guatemala (2004), Sep. Op. Cançado-​Trindade, para. 34 (“Aggravated responsibility is precisely the responsibility that corresponds to a State crime, even though this is not an attempt to suggest an inadequate analogy with categories of domestic criminal law.” (emphasis omitted)). 140 André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52(3) iclq 615, 633 (2003). See discussion supra, Chapter 5.a (Relationship Between Elements of Individual and State Responsibility). 141 See, e.g., ilc Articles on State Responsibility, Part Two, Chapter iii, Commentary, paras. 5–​7. 142 See, e.g., id., Article 58, Commentary, para. 3 (“Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them.”); Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13(3) ejil 561, 589 (2002) (“The criminality which has been regarded as the most serious in the history of international criminal law, and which the icty, the ictr and the icc are primarily meant to target, is normally committed in connection with the exercise of state power.”); Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 44 (Oxford: 3d ed. oup 2014) (“Crimes under international law typically, though not necessarily, presume state participation. … But crimes under international law and wrongful acts by a state will often coincide.” (internal citation omitted)); Elies van Sliedregt, Individual Criminal Responsibility in International Law 5 (Oxford: oup 2012) (“The organized and collective nature of crimes often suggests state involvement.”).

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the development of mechanisms to prosecute international crimes—​and those prosecuted by them—​have in many instances been a reaction to abuses of State authority. Similarly, specific crimes under international law, such as genocide and crimes against humanity, themselves contain elements that, for practical purposes, are likely to be intertwined with an abusive State policy when perpetrated, as is often the case, by a State organ.143 With respect to the crime of aggression, this linkage is explicit, so as to require a State act of aggression as an element of the crime.144 From the perspective of this often close association between crimes under international law and State authority, the proposition that State responsibility should in such cases reflect the gravity of the attributed conduct is not without merit.145 State responsibility, and in particular consequences that reflect its unstratified character, may be viewed accordingly as inadequate to appropriately address the seriousness of a breach of an international obligation established through attribution of a crime under international law.146 Efforts to alleviate this perceived shortcoming of the law of State responsibility have been both sustained and largely unsuccessful. For several decades, the ilc project on State responsibility contained provisions on crimes of States, only for the concept to be abandoned in the project’s final stages.147 While the final version of the Articles on State Responsibility contains provisions 143 See, e.g., Rome Statue (1998), Article 6 (defining genocide to constitute certain “acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such”) and Article 7 (defining crimes against humanity to constitute certain “acts when committed as part of a widespread or systematic attack directed against any civilian population”). Indeed, some commentators have suggested State responsibility cannot arise for an international crime in the absence of an established “State policy” pursuant to which they were perpetrated. See, e.g., Gaeta, op. cit. 631–​48. However, as discussed above, this approach seems overly restrictive. 144 Rome Statue (1998), Article 8bis. See discussion supra, Chapter 4, n. 46. 145 Torture, while it may not necessarily implicate State policy in the same way as the aforementioned crimes under international law, is defined as an act performed by or with the acquiescence of State officials or others acting in an official capacity: see Torture Convention (1984), Article 1(1) (“For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”) (emphasis added). 146 See, e.g., Nollkaemper (2010), op. cit. 331 (“even though the state can be subject to international responsibility, the consequences, compared to those for individuals, are relatively powerless and fall short of punishment.”). 147 Cf. James Crawford, Revising the Draft Articles on State Responsibility, 10(2) ejil 435, 442–​ 443 (1999). See discussion supra, Chapter 4.c.iii (Crimes of States).

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that contemplate consequences for “serious breaches” of obligations under peremptory norms, tellingly, these stated consequences do not include additional consequences in terms of responsibility for the breaching State.148 To be sure, Article 41(3) of the ilc Articles on State Responsibility was intended to leave open the door to the future development of legal consequences.149 This opening has been wielded to preserve the concept of State crimes and advance the idea that “serious breaches” of obligations under peremptory norms contemplated in the ilc Articles on State Responsibility entail additional consequences for the responsible State; the construct of “aggravated” State responsibility has emerged to advance the concept of State crimes.150 Whatever limited practice may be identified in this regard remains, however, bound by the parameters of “ordinary” secondary rules of general applicability in the law of State responsibility.151 In the absence of criminal consequences for the State, duality of responsibility reflects a wholly differentiated regime in which secondary rules allocate distinct forms of responsibility, and consequences, to the State and the individual under international law. Even if the present day law of State responsibility is ill-​equipped to integrate aspects of criminality, the important functions that State responsibility—​and, in particular, its attendant consequences—​may serve in relation to individual criminal responsibility ought not be discounted. Where State responsibility arises concurrently with, or complementary to, individual criminal responsibility, the practical impact of consequences for

148 Tams, op. cit. 1179–​1180. See discussion supra, Chapter 9.b.i (Consequences for the Responsible State). 149 Cf. ilc Articles on State Responsibility, Article 41, Commentary, para. 14 (“The fact that such further consequences are not expressly referred to in chapter iii does not prejudice their recognition in present-​day international law, or their further development. In addition, paragraph 3 reflects the conviction that the legal regime of serious breaches is itself in a state of development.”). 150 See, e.g., Bonafè, op. cit. 75–​81; Andrea Gattini, A historical perspective: from collective to individual responsibility and back, in André Nollkaemper and Harmen van der Wilt [Eds.], System Criminality in International Law 123–​124 (Cambridge: cup 2009); Santiago Villalpando, L’émergence de la communauté internationale dans la responsabilité des États 303–​304 (Geneva: Graduate Institute Publications 2005); Nollkaemper (2003), op. cit. 624. See similarly Cassese et al. [Eds.], International Criminal Law 7 (Oxford: 3d ed. oup 2013); Gaeta, op. cit. 635–​637. See also Alain Pellet, 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 55–​79 (2001). See discussion supra, Chapter 4.c.iv (Aggravated State Responsibility), esp. n. 75. 151 See discussion supra, Chapter 4.c.iv (Aggravated State Responsibility).

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the State contemplated under international law—​cessation and reparation—​ may themselves be of primary importance. In this regard, the significance of the obligation of cessation that arises from responsibility for ongoing breaches of international obligations is self-​ evident: to bring a State into conformity with the underlying primary rule. In the context of ongoing atrocities, the obligation of cessation may serve a critical practical function that is entirely distinct from the purposes of international criminal law. The complementary role of the obligation of cessation is illustrated, for example, by proceedings instituted by The Gambia in 2019 against Myanmar before the icj in Application of the Genocide Convention.152 Moreover, the obligation of cessation may also be synergistic vis-​à-​vis criminal responsibility, for instance, where that obligation arises in relation to breach of an obligation to prosecute or extradite alleged perpetrators of an international crime.153 This function is illustrated by the 2007 Application of the Genocide Convention judgment, in which the icj ordered Serbia to take immediate steps to ensure full compliance with its obligations under the Genocide Convention, to transfer individuals accused of genocide to the icty, and to cooperate fully with the icty, consistent with the performance of obligations erga omnes it was found to have breached.154 The same function is illustrated by the 2012 Questions Relating to the Obligation to Prosecute or Extradite judgment, in which the icj ordered Senegal to extradite or prosecute Hissène Habré consistent with the performance of obligations erga omnes under the Torture Convention that it was found to have breached.155 The obligation of reparation arising from State responsibility may also serve complementary, synergistic functions in relation to individual criminal responsibility. Given that international crimes are often performed through abuse of State authority, the availability of compensation from the State for international crimes attributed to it may provide a meaningful—​and, perhaps, the only—​avenue for such remedy to victims.156 Similarly, with respect to restitution, the State, rather than an individual perpetrator of an international crime, is for practical purposes the subject of international law best placed to restore a situation to some approximation of what it might have been prior to the wrongful act. Finally, regarding satisfaction, a State’s performance of obligations related to the punishment of a crime under international law may 1 52 153 154 155 156

Application of the Genocide Convention (2020), paras. 1–​2, 56. See, e.g., Nollkaemper (2003), op. cit. 638. Application of the Genocide Convention (2007), para. 471(8). Questions relating to the Obligation to Prosecute or Extradite (2012), para. 122(6). Cf. Tomuschat, op. cit. 905–​912.

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constitute satisfaction sufficient to discharge its obligation of reparation arising from State responsibility for an attributed crime under international law.157 While efforts to realize something akin to criminality in the law of State responsibility will undoubtedly persist, the available legal consequences for an internationally wrongful act may take on an outsized role in relation to primary rules subject to duality of responsibility. A contribution of the law of State responsibility, in the context of dual responsibility, may lie precisely in the fact that State responsibility, and in particular its consequences, is fundamentally dissimilar to international criminal law. A result of differentiation in forms of responsibility and associated consequences is that the law of State responsibility provides a host of remedies that may be viewed to supplement and promote the aims of international criminal law. That obligations of cessation and reparation may arise for a State to which international criminal conduct is attributed creates, in effect, a holistic range of possible remedies available for breaches of primary rules giving rise to both individual and State responsibility. Moreover, distinct consequences for individual and State responsibility may be viewed to be directed toward the subject of international law best placed to effectuate the underlying purposes of those consequences and their respective fields of responsibility.158 With respect to the individual, retribution and deterrence are advanced by penal consequences directed toward individual actors proximately responsible for prohibited conduct performed with the requisite criminal intent. With respect to the State, cessation and reparation are aimed at restoring the lawful relation between a State and the international legal obligation it has breached. The State is better suited to performing functions associated with cessation and reparation. From this perspective, differentiation between individual and State responsibility creates a depth of potential consequences whose simultaneous availability is unique to primary rules subject to duality of responsibility. 1 57 See supra, Chapter 9, n. 77. 158 Compare supra, Chapter 9.a (Consequences of Individual Criminal Responsibility), with supra, Chapter 9.b (Consequences of an Internationally Wrongful Act).

­c hapter 10

Defenses a

Exclusion of Responsibility for Crimes under International Law

Defenses1 may be defined as “all grounds which, for one reason or another, hinder the sanctioning of an offence—​despite the fact that the offence has fulfilled all definitional elements of a crime.”2 The substantive defenses applied in international criminal law rely largely upon general principles of law derived from domestic legal systems and have generally not been defined in the constitutive instruments of international courts and tribunals.3 Defenses, or grounds for excluding criminal responsibility, are typically not included in the elements of crimes themselves.4 Instead, it is generally the province of courts to determine the admissibility of defenses “in accordance with the general principles of law, in the light of the character of each crime.”5 The legal consequence of a successful defense is either acquittal, which precludes an individual’s criminal responsibility (i.e., a “full” or “perfect” defense), or mitigation, which impacts punishment arising from an individual’s criminal responsibility (i.e., a “partial” or “imperfect” defense).6

1 “Defenses,” for purposes of this book, refer to the equivalent of “affirmative” or “special” defenses found in domestic criminal law. 2 Albin Eser, ‘Defenses’ in War Crimes Trials, in Yoram Dinstein and Mala Tabory [Eds.], War Crimes in International Law 251 (The Hague: Martinus Nijhoff 1996). Accord. Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part 302 (Oxford: oup 2013); William Schabas, Genocide in International Law 367 (Cambridge: 2d ed. cup 2009). 3 See, e.g., Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, para. 449 (Feb. 26, 2001) (“The Trial Chamber notes that the Statute of the International Tribunal does not provide for self-​defence as a ground for excluding criminal responsibility. ‘Defences’ however form part of the general principles of criminal law which the International Tribunal must take into account in deciding the cases before it.”). Cf. Ambos, op. cit. 311; Roger O’Keefe, International Criminal Law, para. 6.1 (Oxford: oup 2015). The Rome Statute is the notable exception. 4 See Elements of Crimes, General Introduction, para. 5. 5 Draft Code of Crimes (1996), Article 14. 6 Ambos, op. cit. 303. Accordingly, mitigation is taken into account at sentencing. See, e.g., Draft Code of Crimes (1996), Article 15; icty rpe, Rule 101(B)(ii); ictr rpe, Rule 101(B)(ii); scsl rpe, Rule 101(B)(ii); icc rpe, Rule 145(2)(a). Cf. O’Keefe, op. cit. para. 6.42.

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Defenses may be characterized as either “failure of proof” defenses or justifications and excuses.7 Failure of proof defenses relate to the elements of an offence and often operate to vitiate the subjective element.8 If successfully established, a failure of proof defense negates an element of the crime and precludes criminal responsibility. By contrast, defenses characterized as justifications and excuses do not affect whether the elements of a crime are established.9 Instead, justifications and excuses consist of circumstances in which either responsibility or condemnation is precluded.10 A justification permits, or admits the rightness of, the impugned conduct and eliminates the criminal character of that conduct.11 An excuse, while not displacing the wrongness of the impugned conduct, exculpates the responsible actor.12 The availability and legal consequence of a defense under international criminal law may depend at least in part on the crime at issue.13 i Failure of Proof Defenses recognized under international criminal law typically characterized as failure of proof defenses include mental incapacity, intoxication, and error of fact or law. Mental incapacity generally refers to a situation in which a person suffers from a mental disease or defect that precludes the formation of the mental state sufficient to establish criminal responsibility.14 Where successfully established, 7

8 9 10

11 12 13 14

Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, Annex ii, para. 5, U.N. Doc. A/​50/​22, at 59–​60 (Sept. 6, 1995). This taxonomy was not adopted in Rome Statute. The Committee also identified a third category, defenses under public international law (e.g., self-​defense under Article 51 of the UN Charter), some of which are addressed infra as circumstances precluding wrongfulness for State responsibility. See also Schabas, op. cit. 368 (describing defenses establishing lack of specific intent as “special defenses.”). See, e.g., Robert Cryer et al., an Introduction to International Criminal Law and Procedure 399 (Cambridge: 3d ed. cup 2014); Ambos, op. cit. 307–​308. Draft Code of Crimes (1996), Article 14, Commentary, para. 2. Cf. Cryer et al., op. cit. 398–​399; Ambos, op. cit. 304–​307; Elies van Sliedregt, Individual Criminal Responsibility in International Law 215–​217 (Oxford: oup 2012). See, e.g., John Austin, A Plea of Excuses, in 57 Proceedings of the Aristotelian Society, New Series 1, 2 (1956–​1957) (“In the one defense, briefly, we accept responsibility but deny that it was bad; in the other, we admit that it was bad but don’t accept full, or even any responsibility.”). Draft Code of Crimes (1996), Article 14, Commentary, para. 2. Cf. Antonio Cassese et al. [Eds.], International Criminal Law 209 (Oxford: 3d ed. oup 2013). Id. Draft Code of Crimes (1996), Article 14. See, e.g., Rome Statute (1998), Article 31(1)(a) (“The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of

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mental incapacity often amounts to a failure of proof.15 “Diminished mental responsibility,” which may be conceived as a kind of mental incapacity short of insanity, has been recognized as a general principle of law that constitutes an excuse that does not preclude the establishment of criminal responsibility.16 This form of mental deficiency, recognized as a special defense, constitutes a mitigating factor relevant to sentencing rather than a ground for excluding criminal responsibility.17 Intoxication also precludes the formation of the mental state necessary to establish criminal responsibility.18 As such, where successfully established, incapacitation amounts to a failure of proof.19 International courts and tribunals have distinguished between voluntary and involuntary intoxication.20 Intoxication may be seen to operate similarly to mental incapacity such that, where proved as a complete defense, each reflects a circumstance undermining the mens rea necessary to establish criminal responsibility. In some cases,

his or her conduct, or capacity to control his or her conduct to conform to the requirements of law[.]‌”); Delalić et al., it-​96-​21-​a , Judgement, para. 582 (Feb. 20, 2001) (defining mental incapacity arising where, “more probably than not, at the time of the offence he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong.” (citing M’Naghten’s Case (1843) 10 Cl & Fin 200 at 210–​211; 4 St Tr (ns) 847 at 930–​931)). 15 Cryer et al., op. cit. 401; O’Keefe, op. cit. para. 6.11. 16 Peter Krug, The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation, 94(2) ajil 317, 318 (2000); Ambos, op. cit. 315. 17 See, e.g., icty rpe, Rule 67(B)(i)(b); ictr rpe, Rule 67(A)(ii)(b); mict rpe, Rule 72(B)(i) (b); icc rpe, Rule 145(2)(a)(i). Accord, e.g., Defence Pleas, 15 lrtwc 155, 185 (London: His Majesty’s Stationery Office 1949) (discussing prosecution of Wilhelm Gerbsch by Special Court in Amsterdam, where “ ‘mental faculties were defective and undeveloped’ at the time of the crimes” considered a mitigating circumstance); cf. Trial of Wilhelm Gerbsch, The Special Court in Amsterdam, First Chamber (Apr. 28, 1948), 13 lrtwc 131, 132 (London: His Majesty’s Stationery Office 1948); Delalić et al., it-​96-​21-​a , Judgement, para. 590 (Feb. 20, 2001) (accepting diminished mental responsibility as a general principle of law relevant to sentence to be imposed and not as a defense leading to acquittal). 18 See, e.g., Rome Statute (1998), Article 31(1)(b) (“The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court[.]‌”). 19 Cryer et al., op. cit. 402; O’Keefe, op. cit. para. 6.14; Ambos, op. cit. 324. 20 Kvočka et al., it-​98-​30/​1 -​t, Judgement, para. 706 (Nov. 2, 2001). For possible tests, see van Sliedregt, op. cit. 231–​232.

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intoxication has been regarded as a mitigating factor relevant to sentencing rather than a ground for excluding criminal responsibility.21 International criminal law recognizes that there are circumstances under which mistakes of fact or law may preclude the formation of the mental state necessary to establish criminal responsibility.22 A mistake of fact, a defense found in domestic legal systems, refers in this sense to a legally significant fact that would undermine the mens rea necessary to establish criminal responsibility.23 A mistake of law, more controversial and generally not recognized in domestic legal systems, is admitted at least in principle by international criminal law where such mistake undermines the mens rea necessary to establish criminal responsibility.24 However the universal and well-​known character of international crimes may call into question the general viability of such a defense, an observation reflected in the well-​known Llandovery Castle judgment.25

21 Kvočka et al., it-​98-​30/​1 -​t, Judgement, para. 706 (Nov. 2, 2001). Cf. Defence Pleas, 15 lrtwc 155, 185 (London: His Majesty’s Stationery Office 1949) (discussing cases in which this defense was rejected). 22 See, e.g., Rome Statute (1998), Article 32 (“1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.”). Cf. Cryer et al., op. cit. 409. 23 See, e.g., Defence Pleas, 15 lrtwc 155, 184 (London: His Majesty’s Stationery Office 1949) (“A mistake of fact, however, may constitute a defence in war crime trials just as it may in trials before municipal courts.”). 24 See, e.g., id. at 182–​184 (“In general, under municipal law systems, a mistake of law is not regarded as an excuse. There has, however, been some tendency to recognise that an alleged war criminal can not be expected to have been quite as well aware of the provision [sic] of international law as of those of his own municipal law.”). See also Lubanga, icc-​0 1/​04-​01/​06, Decision on the confirmation of charges, para. 316 (Jan. 29, 2007) (“the defence of mistake of law can succeed under article 32 of the Statute only if Thomas Lubanga Dyilo was unaware of a normative objective element of the crime as a result of not realising its social significance (its everyday meaning).”). 25 See Judgment in Case of Lieutenants Dithmar and Boldt (Hospital Ship “Llandovery Castle”), Imperial High Court (Germany) (July 16, 1921), reprinted in 16(4) ajil 708 et seq., at 724 (1922) (“Any violation of the law of nations in warfare is … a punishable offence. … The fact that his deed is a violation of international law must be well-​known to the doer. … In examining the question of the existence of this knowledge, the ambiguity of many of the rules of international law, as well as the actual circumstances of the case, must be borne in mind. … This consideration, however, cannot be applied to the case at present before the court. The rule of international law, which is here involved, is simple

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Justification and Excuse ii Defenses recognized under international criminal law typically characterized as justifications or excuses include self-​defense, duress, and superior orders.26 Self-​defense may be understood as “providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack, provided that the acts constitute a reasonable, necessary and proportionate reaction to the attack.”27 Such defense is recognized in domestic legal systems and is typically regarded as a rule of customary international law, though it may be more accurately characterized as a general principle of law.28 Whether self-​defense may be successfully established in relation international crimes—​beyond a subset of war crimes—​has been called into question. The icty Trial Chamber has indicated that serious violations of international humanitarian law cannot be justified by self-​defense.29 Moreover, it is difficult to conceptualize, for example, how a crime against humanity or an act of genocide might constitute a proportionate response to an imminent or unlawful attack.30 Scant practice applying self-​defense in the context of international crimes makes drawing broad conclusions about its availability difficult. Self-​defense at the individual level is separate and distinct

26 27

28 29 30

and is universally known. No possible doubt can exist with regard to the question of its applicability.”). For discussion of other defenses, particularly those rejected under international criminal law, cf. Cryer et al., op. cit. 415–​418. Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, para. 449 (Feb. 26, 2001). See also Defence Pleas, 15 lrtwc 155, 177 (London: His Majesty’s Stationery Office 1949) (“A plea of self-​ defence may be successfully put forward, in suitable circumstances, in war crimes trials as in trials held under municipal law.”); Rome Statute (1998), Article 31(1)(c) (“The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph[.]‌”). Note that the extension of self-​ defense beyond “life and limb” to include property has been referred to as lex lata: See Cassese et al., op. cit. 212; Antonio Cassese, The Rome Statute of the International Criminal Court: Some Preliminary Reflections, 10(1) ejil 144, 154–​155 (1999). Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, paras. 449, 451 (Feb. 26, 2001); Draft Code of Crimes (1996), Article 14, Commentary, paras. 7–​8. Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, para. 452 (Feb. 26, 2001) (though it is unclear from the context of this statement which form of self-​defense—​at the individual or State level—​the icty contemplated here). See, e.g., Ambos, op. cit. 336–​337, 342; O’Keefe, op. cit. para. 6.18.

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from self-​defense at the State level (i.e., within the meaning of Article 51 of the UN Charter), which is regulated by rules of public international law independent from the principle as it applies under international criminal law.31 Duress, sometimes understood to subsume necessity, provides a defense where impugned conduct is a necessary and reasonable response to duress resulting from threat of death or serious harm.32 Application of a defense of duress has also been assessed to incorporate an element of proportionality.33 Where established, duress may constitute either a complete defense or a mitigating factor at sentencing.34 In this regard, the icty Appeals Chamber concluded that duress does not provide a complete defense to a charge of a crime against humanity or a war crime involving the killing of innocent human beings.35 The Appeals Chamber endorsed the reasoning in the Joint Separate Opinion of Judge McDonald and Judge Vohrah on this point, which consisted of an extensive survey of legal authority and policy considerations, leading to the conclusion that the gravity of the international crimes at issue precluded the admission of duress as a complete defense.36 By contrast, necessity was 31

See, e.g., Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, para. 812 (Dec. 17, 2004) (“[W]‌hether an attack was ordered as pre-​emptive, defensive or offensive is from a legal point of view irrelevant. … The issue at hand is whether the way the military action was carried out was criminal or not.”); Martić, it-​95-​11-​a , Judgement, para. 268 (Oct. 8, 2008). Cf. Draft Code of Crimes (1996), Article 14, Commentary, para. 7; Cryer et al., op. cit. 405; Ambos, op. cit. 334–​335. This distinction is illustrated by the differentiation between the lawfulness of use of force (jus ad bellum) and the conduct of parties to an armed conflict (jus in bello). 32 See, e.g., Draft Code of Crimes (1996), Article 14, Commentary, para. 10; Defence Pleas, 15 lrtwc 155, 170–​175 (London: His Majesty’s Stationery Office 1949) (discussing post-​w wii precedent); Erdemović, it-​96-​22-​t, Sentencing Judgement, paras. 14–​20 (Nov. 29, 1996); Rome Statute (1998), Article 31(1)(d) (“The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) [m]‌ade by other persons; or (ii) [c]onstituted by other circumstances beyond that person’s control.”). Cf. Cryer et al., op. cit. 406–​408. 33 See Erdemović, it-​96-​22-​a , Judgement, para. 19 (Oct. 7, 1997); id., Joint Sep. Op. McDonald and Vohrah, para. 37; Rome Statute (1998), Article 31(1)(d). Cited in this regard, R. v. Dudley and Stephens (Mignonette Case), 14 qbd 273 (Dec. 9, 1884). Cf. Cryer et al., op. cit. 408; Ambos, op. cit. 359–​361. 34 See Defence Pleas, 15 lrtwc 155, 170–​175 (London: His Majesty’s Stationery Office 1949) (discussing post-​w wii precedent); Erdemović, it-​96-​22-​t, Sentencing Judgement, para. 14 (Nov. 29, 1996); Draft Code of Crimes (1996), Article 14, Commentary, para. 10. 35 Erdemović, it-​96-​22-​a , Judgement, para. 19 (Oct. 7, 1997). 36 Erdemović, it-​96-​22-​a , Joint Sep. Op. McDonald and Vohrah, para. 75 (Oct. 7, 1997) (“[W]‌e cannot but stress that we are not, in the International Tribunal, concerned with ordinary domestic crimes. The purview of the International Tribunal relates to war crimes

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contemplated by the icty as providing a complete defense for the plunder of cattle.37 These parameters call into question the availability of a defense of duress as a complete defense and signal limitation in relation to international crimes. Superior orders is a defense recognized under narrow circumstances by international criminal law. The general rule under international criminal law is that the defense of superior orders is not applicable to commands in violation of international law because, from the perspective of international law, a subordinate is bound only to obey lawful orders.38 However, Article 33 of the Rome Statute contemplates that a defense of superior orders is not unavailable for crimes under the jurisdiction of the icc where a subordinate is under an obligation to obey an order, that order is not manifestly unlawful, and the subordinate does not know that order is unlawful.39 The Rome Statutes expressly and crimes against humanity committed in armed conflicts of extreme violence with egregious dimensions. … We are concerned that, in relation to the most heinous crimes known to humankind, the principles of law to which we give credence have the appropriate normative effect upon soldiers bearing weapons of destruction and upon the ­commanders who control them in armed conflict situations. … If national law denies recognition of duress as a defence in respect of the killing of innocent persons, international criminal law can do no less than match that policy since it deals with murders often of far greater magnitude. If national law denies duress as a defence even in a case in which a single innocent life is extinguished due to action under duress, international law, in our view, cannot admit duress in cases which involve the slaughter of innocent human beings on a large scale. It must be our concern to facilitate the development and effectiveness of international humanitarian law and to promote its aims and application by recognising the normative effect which criminal law should have upon those subject to them.”). 37 Orić, it-​03-​68-​t, Oral Decision Rendered Pursuant to Rule 98bis in the Orić Case (June 8, 2005). 38 See, e.g., Hostages Trial (1948), 50 (“We are of the view, however, that if the illegality of the order was not known to the inferior and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the inferior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates International Law and outrages fundamental concepts of justice.”). 39 Rome Statute (1998), Article 33(1) (Superior orders and prescription of law) (“The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) [t]‌he person was under a legal obligation to obey orders of the Government or the superior in question; (b) [t]he person did not know that the order was unlawful; and (c) [t]he order was not manifestly unlawful.”). To the extent that this definition incorporates an aspect of mistake of legality, it is not necessary that it constitute a failure of proof undermining the requisite mental element: cf. Cryer et al., op. cit. 415.

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excludes orders to commit genocide or crimes against humanity from this defense because such orders would be “manifestly unlawful.”40 Although aggression is not expressly excluded from Article 33, because the crime of aggression as defined in the Rome Statute is defined as a “manifest violation” of the UN Charter,41 it may be implicitly excluded from a superior orders defense as contemplated by that instrument.42 Generally, where a defense of superior orders is successfully established, it is considered as a mitigating factor at sentencing but not as a complete defense.43 When considering this question, however, the icty did not “rule[] out absolutely” the possibility that duress or necessity stemming from superior orders might constitute a complete defense under “particularly strict” conditions.44 Questions arise regarding whether defenses characterized as justifications and excuses may operate as complete defenses to international crimes that constitute violations of peremptory norms of general international law, from which no derogation is permitted. Cassese introduces this question as one warranting caution when “transplanting” these particular aspects of domestic law to international crimes that constitute breaches of primary rules “which have the rank of jus cogens i.e. peremptory norms, and are therefore not derogable by either states or individuals.”45 In this sense, under the analogous secondary rules of State responsibility, reflected in the ilc Articles on State Responsibility, circumstances precluding wrongfulness are not applicable to breaches of peremptory norms on the basis that such norms permit no derogation.46 Indicia of the unavailability of justifications and excuses as complete defenses to international crimes that constitute breaches of peremptory 40

Rome Statute (1998), Article 33(2) (“2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”). 41 Rome Statute (1998), Article 8bis (crime of aggression). 42 Cryer et al., op. cit. 415. 43 Defence Pleas, 15 lrtwc 155, 157–​160, esp. 159 (London: His Majesty’s Stationery Office 1949). See Control Council Law No. 10 (1945), Article ii(4)(b) (“The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”). Accord. imt Charter (1945), Article 8; Tokyo Charter (1946), Article 6; icty Statute (1993), Article 7(4); ictr Statute (1994), Article 6(4); scsl Statute (2002), Article 6(4); Draft Code of Crimes (1996), Article 5. 44 Erdemović, it-​96-​22-​t, Sentencing Judgement, paras. 17–​20 (Nov. 29, 1996). 45 Cassese et al., op. cit. 210. See similarly Yoram Dinstein, International Criminal Law, 20(2–​ 3) Israel Law Review 206, 233–​242 (1985) (comparing “the two admissible defences based on lack of mens rea” with “other defence pleas”). 46 See discussion infra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts).

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norms appear in practice. As noted above, chambers of the icty have stated that self-​defense is unavailable as a complete defense to serious violations of international humanitarian law, and duress is unavailable as a complete defense to crimes against humanity and certain war crimes.47 Similarly, the Rome Statute expressly excludes genocide and crimes against humanity from the potential applicability of a defense of superior orders (which, in any event, is generally regarded as a mitigating factor).48 These prima facie exclusions are distinct from the question of whether, even if applicable in principle, the requisite elements of justifications and excuses could be satisfied where the impugned conduct violates a peremptory norm.49 If applicable in principle, and a justification or excuse were successfully established in such a case, such defense might be expected to be considered as a mitigating factor at sentencing.50 The icty Appeals Chamber reached this conclusion in Erdemović, finding that, although duress does not provide a complete defense to a charge of a crime against humanity or a war crime involving the killing of innocent human beings, such defense may instead be considered as a mitigating factor at sentencing.51 b

Circumstances Precluding Wrongfulness for Internationally Wrongful Acts

The law of State responsibility admits certain circumstances under which wrongfulness does not attach to a State’s breach of an international obligation.52 These circumstances, characterized as justifications and excuses, presuppose that the elements of an internationally wrongful act (i.e., breach and

47

See discussion supra, Chapter 10.a.ii (Justification and Excuse). See also Draft Code of Crimes (1996), Article 14, Commentary, para. 10. 48 Id. 49 With respect to self-​defense and duress, for example, whether breach of a primary rule belonging to jus cogens could ever satisfy a standard of proportionality appears doubtful: see discussion supra, Chapter 10.a.ii (Justification and Excuse). 50 See, e.g., Defence Pleas, 15 lrtwc 170–​175, esp. 172 (London: His Majesty’s Stationery Office 1949) (regarding duress, in trial of Gustav Alfred Jepsen and ors: “The Judge Advocate then went on to admit that if the plea of duress on the facts of the case failed as a complete defence it might be successful as a plea in mitigation of sentence.”). 51 Erdemović, it-​96-​22-​a , Judgement, para. 19 (Oct. 7, 1997). 52 See ilc Articles on State Responsibility, Part One, Chapter v (Circumstances Precluding Wrongfulness).

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attribution) are established and do not affect the underlying obligation.53 Rather, such circumstances operate to justify or excuse conduct not in compliance with the relevant obligation.54 In this way, circumstances precluding wrongfulness operate like defenses recognized in domestic legal systems.55 The ilc, in its Articles on State Responsibility, identified six circumstances precluding wrongfulness recognized under general international law.56 Consent by one State to conduct by another State precludes wrongfulness from arising for such conduct in relation to the first State.57 Lawful conduct in self-​ defense—​in conformity with the UN Charter—​precludes wrongfulness from arising with respect to such conduct.58 International law also admits countermeasures, subject to certain conditions, such that an internationally wrongful act by one State may justify conduct toward that State by another in breach of an international obligation of the latter State.59 It is well established that the excuse of force majeure precludes wrongfulness of a State’s breach of an international obligation.60 Similarly, under certain circumstances, distress may preclude the wrongfulness of a State’s breach of an international obligation

53 54 55

56 57 58

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Id., Commentary, para. 2. Id. See, e.g., Gabčíkovo-​Nagymaros Project (1997), para. 48 (“… implying that, in the absence of such a circumstance, [the State’s] conduct would have been unlawful.”). ilc Articles on State Responsibility, Part One, Chapter v, Commentary, para. 7 (citing C. von Bar, The Common European Law of Torts (Oxford University Press, 2000), vol. 2, pp. 499–​592). See also id. para. 8 (“the onus lies on that State to justify or excuse its conduct.”). See ilc Articles on State Responsibility, Part One, Chapter v. Id., Article 20. On limits of consent, cf. id., Commentary, para. 4 (citing “International Military Tribunal (Nuremberg), judgment and sentences October 1, 1946: judgment,” reprinted in ajil, vol. 41, No. 1 (January 1947) p. 172, at pp. 192–​194). Id., Article 21. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996, p. 226, paras. 38, 96. It should be noted that Article 21 appears to contemplate breach of obligations apart from those arising under the UN Charter, as self-​ defense measures consistent with the UN Charter would not require justification or excuse in relation to that instrument because such measures would not give rise to an internationally wrongful act in relation to the Charter in the first instance. ilc Articles on State Responsibility, Article 22. Cf. Gabčíkovo-​Nagymaros Project (1997), paras. 83–​85 (The icj considered that such measures “must be taken in response to a previous international wrongful act of another State and must be directed against that State,” and that “the injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it.” The icj also described as an important consideration “that the effects of a countermeasure must be commensurate with the injury suffered.”). ilc Articles on State Responsibility, Article 23. See, e.g., Gabčíkovo-​Nagymaros Project (1997), para. 102; Rainbow Warrior (1990), §§ 76–​77. See similarly, Vienna Convention on the Law of Treaties, Article 61 (Supervening Impossibility of Performance).

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as justified by the prevention of loss of life.61 Finally, a plea of necessity may preclude wrongfulness where a State breaches an international obligation in order “to safeguard an essential interest against a grave and imminent peril.”62 Circumstances precluding wrongfulness may not justify or excuse an act of a State in breach of a primary rule associated with international crimes (i.e., a peremptory norm).63 As norms from which no derogation is permitted, it follows a priori that international law does not recognize circumstances that would justify or excuse derogation from such a primary rule. The ilc adopted this position categorically, as reflected in Article 26 of the Articles on State Responsibility, which provides that circumstances precluding wrongfulness are not available for acts “not in conformity with an obligation arising under a peremptory norm of general international law.”64 The ilc elaborated on its reasoning to reach this conclusion in its commentary: [T]‌he circumstances precluding wrongfulness … do not authorize or excuse any derogation from a peremptory norm of general international law. For example, a State taking countermeasures may not derogate from such a norm: for example, a genocide cannot justify a counter-​genocide. The plea of necessity likewise cannot excuse the breach of a peremptory norm. It would be possible to incorporate this principle expressly in each of the articles of chapter v, but it is both more economical and more in keeping with the overriding character of this class of norms to deal with the basic principle separately. Hence, article 26 provides that nothing in chapter v can preclude the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.65 The reference by the ilc to a “counter-​genocide” arises from language in an order by the icj in Application of the Genocide Convention, in which the court opined that “in no case could one breach of the [Genocide] Convention serve as an excuse for another.”66 Notwithstanding limited practice in this area, it 61 62 63 64 65 66

ilc Articles on State Responsibility, Article 24. See Rainbow Warrior (1990), § 78 (appearing to acknowledge a broader application of distress to extend to serious risk to health short of risk to human life). ilc Articles on State Responsibility, Article 25. Cf. Gabčíkovo-​Nagymaros Project (1997), paras. 48–​52. ilc Articles on State Responsibility, Article 26. Id. Id., Commentary, para. 4 (internal citation omitted). Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-​claims, Order of 17 December 1997, i.c.j. Reports 1997, p. 243, para. 35.

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is consistent with jus cogens as a category of peremptory norms permitting no derogation that circumstances precluding wrongfulness recognized under general international law are not available to justify or excuse breach of such a primary rule.67 c

Points of Contact in Avoidance of Responsibility

It is often noted that defenses available under international law receive relatively little attention in commentary. This observation is especially so with regard to assessing defenses in international criminal law in light of circumstances precluding wrongfulness available in the law of State responsibility. Such comparative analysis is, however, necessary to ascertain whether defenses in the field of individual criminal responsibility have implications for State responsibility, particularly where the two may arise concurrently. In the context of duality of responsibility, it is desirable for circumstances precluding wrongfulness in the field of State responsibility to be reconcilable with defenses available in international criminal law, and to identify any areas in which they are not. As an initial matter, both defenses in international criminal law and circumstances precluding wrongfulness in the law of State responsibility are understood to derive from domestic law as general principles of law.68 In particular, defenses are often recognized as general principles of law, though they are sometimes characterized as customary international law.69 Circumstances precluding wrongfulness have been identified as general international law, 67 68 69

This conclusion has parallels to the availability of certain defenses under international criminal law: see discussion supra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law). These parallels are discussed immediately infra. See discussion supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). See, e.g., Draft Code of Crimes (1996), Article 14; Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, paras. 449, 451 (Feb. 26, 2001) (“ ‘Defences’ however form part of the general principles of criminal law. … The principle of self-​defence enshrined in this provision reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law.”). See discussion supra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law). See also Vladimir-​ Djuro Degan, Responsibility of States and Individuals for Genocide and other International Crimes, in Isabelle Buffard et al. [Eds.], International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner 523 (Leiden: Martinus Nijhoff 2008) (observing that the icty “often confused the concepts of general principles, customary law, and judicial precedent.”).

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and their recognition by reference to domestic law suggests that such circumstances are, more specifically, general principles of law.70 Because each ­category of pleas finds its basis in domestic law, regarding them as general principles of law may be the most accurate characterization.71 Defenses in international criminal law and circumstances precluding wrongfulness in the law of State responsibility find their respective bases in distinct aspects of domestic law. Defenses in international criminal law, as general principles of criminal law, refer to such principles as they arise in domestic criminal law systems.72 By contrast, circumstances precluding wrongfulness are different in character and appear to be derived primarily in reference to tort law typical of domestic legal systems. The ilc indicates as much in its commentary to the Articles on State Responsibility, where it supports the proposition that circumstances precluding wrongfulness are recognized in many legal systems by reference to a comparative review of European tort law.73 This suggests that the most natural domestic law analogue to the international law of State responsibility is the law of tort, which concerns private (or civil) wrongs entailing harm suffered for which remedy may be obtained, typically in the form of damages.74 That available defenses in each field of responsibility derive from general principles of law that hail from different areas of domestic law may be viewed as a product of the fundamental differences between international 70 71

72 73

74

See, e.g., ilc Articles on State Responsibility, Part One, Chapter v, Commentary, para. 7. See discussion supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). Conversely, it may be difficult to identify such pleas as arising from the constituent elements of customary international law, namely opinio juris and State practice, and it does not appear that such a methodology is typically used to identify applicable defenses or circumstances precluding wrongfulness. Regarding circumstances precluding wrongfulness, see, e.g. Rainbow Warrior (1990), §§ 76–​79. Regarding defenses, see, e.g., Delalić et al., it-​96-​21-​a , Judgement, para. 590 (Feb. 20, 2001); Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, para. 449 (Feb. 26, 2001). See discussion supra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law). ilc Articles on State Responsibility, Part One, Chapter v, Commentary, para. 7 (citing C. von Bar, The Common European Law of Torts (Oxford University Press, 2000), vol. 2, pp. 499–​592). See also id. para. 8 (“the onus lies on that State to justify or excuse its conduct.”). Black’s Law Dictionary, Tort (11th ed. 2019) (defining tort as “[a]‌civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.”). Accord., e.g., Ian Brownlie, 1 System of the Law of Nations: State Responsibility 23 (Oxford: oup 1983) (describing State responsibility as a “form of civil liability”).

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criminal law and the law of State responsibility.75 Notwithstanding this distinction, there are certain similarities between circumstances precluding wrongfulness for purposes of State responsibility and certain defenses in international criminal law. Circumstances precluding wrongfulness are characterized as justifications and excuses.76 This is not dissimilar to the subset of defenses characterized as justifications and excuses in international criminal law.77 In each instance, such pleas purport to justify or excuse conduct not in conformity with an international obligation and, as such, presume that the requisite elements of responsibility have been established.78 Justifications and excuses in relation to both individual criminal responsibility and State responsibility address the consequences arising for unlawful conduct. This is distinct, for example, from the operation of failure of proof defenses in international criminal law, which relate to the objective and subjective elements of a crime and often operate to vitiate the mental element of an offence.79 Failure of proof defenses in international criminal law find no analogue in the law of State responsibility. This absence is perhaps unsurprising given that failure of proof defenses generally concern the subjective element of crime—​the mens rea of the accused—​which has no functional equivalent in the law of State responsibility.80 While justifications and excuses are recognized in both the law of State responsibility and international criminal law, there is support for the proposition in each field of responsibility that such pleas are unavailable to preclude wrongfulness where breaches of peremptory norms are at issue. As norms from which no derogation is permitted, it follows a priori that no justification or excuse may permit derogation from a peremptory norm. This reasoning is applicable with equal force regardless of the subject of international law to which such conduct is attributed for purposes of responsibility, that is, to the 75 76 77 78 79 80

These differences are underscored by the purposes of, and consequences arising in, each field of responsibility: see discussion supra, Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). See discussion supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). See discussion supra, Chapter 10.a.ii (Justification and Excuse). Compare, e.g., id., with supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). See, e.g., Cryer et al., op. cit. 399; Ambos, op. cit. 307–​308. See discussion supra, Chapter 10.a.i (Failure of Proof). See discussion supra, Chapter 5.a (Relationship between Elements of Individual and State Responsibility) (discussing how the subjective element of an international crime has no analogue in the constituent elements of breach and attribution of an internationally wrongful act).

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individual or to the State. With respect to the law of State responsibility, the ilc has adopted this position categorically, concluding that circumstances precluding wrongfulness are not applicable to peremptory norms.81 Similarly, indicia of the unavailability of justifications and excuses as complete defenses precluding criminal responsibility for international crimes that constitute violations of peremptory norms appear in practice.82 The absence of a categorical statement to this effect in caselaw may result from the varied availability and potential legal consequences of such defenses, insofar as, even if such a defense is available in principle, but does not provide a complete defense to an international crime that constitutes violation of a peremptory norm, that defense might yet be considered as a mitigating factor for purposes of punishment.83 There is support across both international criminal law and the law of State responsibility for the proposition that justifications and excuses may not preclude responsibility where impugned conduct violates a peremptory norm. Because these secondary rules may be expected to concur in their application to breaches of peremptory norms, it seems unlikely that a situation might arise where a justification or excuse would apply disparately to conduct subject to double attribution so as to preclude responsibility for one subject (i.e., the individual or the State) but not the other.84 Even so, it bears recalling that defenses available in international criminal law and circumstances precluding wrongfulness recognized in the law of State responsibility are governed by different secondary rules.85 As such, the operation of defenses and circumstances precluding wrongfulness are functionally independent from one another. With this caveat, the foregoing 81 82 83

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ilc Articles on State Responsibility, Article 26. See discussion supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). See discussion supra, Chapter 10.a.ii (Justification and Excuse). See, e.g., Cassese et al., op. cit. 210. See discussion supra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law) (discussing that the legal consequence of a successful defense is either acquittal, which precludes an individual’s criminal responsibility (i.e., a “full” or “perfect” defense), or mitigation, which impacts punishment arising from an individual’s criminal responsibility (i.e., a “partial” or “imperfect” defense). Even if justifications and excuses operated differently with regard to conduct subject to double attribution vis-​à-​vis the individual and the State, because circumstances precluding wrongfulness and defenses are distinct, such a result would not reflect divergent application of the same rules to different subjects, although that outcome would be inconsistent with the reasoning above. Compare, e.g., supra, Chapter 10.a (Exclusion of Responsibility for Crimes under International Law), with supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts).

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discussion permits a number of observations regarding the relationship between defenses in international criminal law and circumstances precluding wrongfulness in the law of State responsibility. Because circumstances precluding wrongfulness are not available for breaches of peremptory norms, and international crimes constitute breaches of peremptory norms, where conduct amounting to an international crime is attributed to a State, it does not appear that a circumstance precluding wrongfulness may apply to preclude the international responsibility of the State.86 Conversely, it seems unlikely that State responsibility may arise in relation to individual conduct otherwise constituting an international crime if a complete defense precludes individual responsibility for that conduct. This would follow because the operation of a complete defense to preclude individual responsibility results in the absence of breach of a primary rule in the first instance, such that there is no breach that might be attributed to a State.87 This assessment is consistent with the relationship between elements of individual and State responsibility and the methodology of the icj when assessing concurrent State responsibility.88 Self-​defense warrants particular mention because it appears as both a defense in international criminal law and a circumstance precluding wrongfulness in the law of State responsibility. Self-​defense operates distinctly in the fields of State responsibility and international criminal law.89 In the field of State responsibility, self-​defense refers to circumstances in which the use of force is rendered lawful under Article 51 of the UN Charter and, therefore, not a

86 87

88 89

To the extent that a breach of international humanitarian law does not constitute a violation of a peremptory norm, a circumstance precluding wrongfulness might in principle be available where such conduct is attributed to a State. This conclusion would most clearly result from a successful failure of proof defense, which would indicate that the elements of the relevant crime are not established. For the reasons discussed above, it does not appear that a defense of justification or excuse would displace this conclusion. See discussion supra, Chapter 5.a (Relationship between Elements of Individual and State Responsibility). Draft Code of Crimes (1996), Article 14, Commentary, para. 7 (“It is important to distinguish between the notion of self-​defence in the context of criminal law and the notion of self-​defence in the context of Article 51 of the Charter of the United Nations. The notion of self-​defence in the criminal law context relieves an individual of responsibility for a violent act committed against another human being that would otherwise constitute a crime such as murder. In contrast, the notion of self-​defence in the context of the Charter refers to the lawful use of force by a State in the exercise of the inherent right of individual or collective self-​defence, and which would therefore not constitute aggression by that State.”).

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State act of aggression.90 In the field of international criminal law, by contrast, self-​defense operates to justify or excuse actions to defend or protect oneself or property from attack, subject to certain qualifications.91 The possibility of duality of responsibility for aggression does not affect this distinction, though it presents unique questions.92 As discussed above, the individual crime of aggression includes as an element an act of aggression by the State,93 meaning that the use of force at issue is by definition not a lawful use of force in self-​ defense under Article 51 of the UN Charter. Put differently, where self-​defense in the law of State responsibility renders the use of force lawful under Article 51 of the UN Charter, there is no State act of aggression and, in turn, there can be no crime of aggression attributable to an individual in relation to such use of force.94 The potential for complexity would arise where a State organ charged with the crime of aggression invokes self-​defense. The plea of self-​defense in international criminal law would appear inapposite in relation to the crime of aggression. In light of the requirements of self-​defense and its limited availability under international criminal law, it seems implausible for self-​defense in international criminal law to apply to preclude individual responsibility for the crime of aggression.95 Importantly, whether a leader exercising political or military control over the planning, preparation, initiation or execution of 90 91 92

93

94

95

See discussion supra, Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts) (discussing self-​defense). Id. Because State acts of aggression under international law are defined separately from the international crime of aggression, and because the crime of aggression under international criminal law is comparatively more narrowly defined as a kind of “leadership” crime, the potential scope of State responsibility arising from an act of aggression may not be defined by individual criminal acts of aggression attributable to it as such. This potential distinction is exceptional in the context of duality of responsibility in that State conduct prohibited under the relevant primary rule is not necessarily defined by the attribution of individual criminal conduct to it. Rome Statue (1998), Article 8bis. Cf. Kai Ambos, The Crime of Aggression after Kampala, 53 German Yearbook of International Law 463, 482 (2010); Harold Hongju Koh and Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109(2) ajil 257, 262 (2015). See discussion supra, Chapter 4, accompanying nn. 44–​49 (on the crime of aggression). Draft Code of Crimes (1996), Article 14, Commentary, para. 7 (“Since aggression by a State is a sine qua non for individual responsibility for a crime of aggression under article 16, an individual could not be held responsible for such a crime in the absence of the necessary corresponding action by a State[.]‌”). See discussion supra, accompanying nn. 27–​31 (questioning the applicability of such defense beyond a limited category of war crimes not belonging to jus cogens).

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an act of aggression—​which by its character, gravity and scale constitutes a manifest violation of the UN Charter—​could be said to have done so in self-​ defense under international criminal law (i.e., “to defend or protect himself or his property (or another person or person’s property) against attack, provided that the acts constitute a reasonable, necessary and proportionate reaction to the attack.”)96 is a separate legal question from whether the use of force by the State was undertaken in conformity with Article 51 of the UN Charter. Therefore, to the extent that a State organ charged with the crime of aggression might claim that the underlying use of force was undertaken in self-​ defense within the meaning of Article 51 of the UN Charter, such invocation of self-​defense as it arises in the law of State responsibility is distinct from self-​ defense as it arises in international criminal law. As noted above, the lawful use of force in self-​defense under Article 51 of the UN Charter would preclude such use of force from constituting an act of aggression and, accordingly, could give rise to neither individual nor State responsibility for aggression. Invocation of self-​defense within the meaning of Article 51 of the UN Charter would therefore have a different effect vis-​à-​vis the crime of aggression than self-​defense in international criminal law. If successfully invoked, self-​defense within the meaning of Article 51 of the UN Charter would remove the use of force from the rubric of aggression, negating an element of the crime of aggression in a way that might be expected to operate like a failure of proof defense.97 Notwithstanding this point of connection, it remains that self-​defense in the field of individual responsibility is separate and distinct from self-​defense in the field of State responsibility, which is regulated by rules of public international law independent from the principle as it applies in international criminal law.98 96 97

98

Kordić and Čerkez, it-​95-​14/​2 -​t, Judgement, para. 449 (Feb. 26, 2001). See discussion supra, n. 27. Accord. Cryer et al., op. cit. 415–​416 (“A justification by a State for a use of force, such as self-​defence under Article 51 of the UN Charter, will be pleaded by the defendant not as a separate defence to a charge of aggression but as a failure of proof of an essential element of the crime.”). See, e.g., Kordić and Čerkez, it-​95-​14/​2 -​a , Judgement, para. 812 (Dec. 17, 2004) (“[W]‌hether an attack was ordered as pre-​emptive, defensive or offensive is from a legal point of view irrelevant. … The issue at hand is whether the way the military action was carried out was criminal or not.”); Martić, it-​95-​11-​a , Judgement, para. 268 (Oct. 8, 2008). Cf. Draft Code of Crimes (1996), Article 14, Commentary, para. 7; Cryer et al., op. cit. 405; Ambos, op. cit. 334–​335. This distinction is illustrated by the differentiation between the lawfulness of use of force (jus ad bellum) and the conduct of parties to an armed conflict (jus in bello).

­c hapter 11

Jurisdiction a

Jurisdiction over Individuals under International Law

Both domestic and international courts—​as well as hybrid courts—​exercise jurisdiction ratione personae over individuals in relation to international crimes. The scope of the jurisdiction of international courts and tribunals over individuals in relation to international crimes is set out in their constitutive instruments, either adopted by Security Council resolution,1 or pursuant thereto,2 or by international agreement in the case of the icc.3 In this regard, jurisdiction exercised by international courts and tribunals is distinct from universal jurisdiction as a basis of prescriptive jurisdiction by States over international crimes.4 State legal authority may be divided into categories: jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce.5 The rules of customary international law that govern a State’s ability to exercise these aspects of State authority, and limitations thereto, “are distinct, and must be applied separately.”6 With respect to the application of criminal law, jurisdiction to 1 unsc Resolution 955, U.N. Doc. S/​Res/​955 (Nov. 8, 1994) (establishing ictr); unsc Resolution 827, U.N. Doc. S/​Res/​827 (May 25, 1993) (establishing icty). See also unsc Resolution 1966, U.N. Doc. S/​Res/​1966 (Dec. 22, 2010) (establishing International Residual Mechanism for Criminal Tribunals). 2 See, e.g., unsc Resolution 1315, On the Situation in Sierra Leone, U.N. Doc. S/​Res/​1315 (Aug. 14, 2000); unsc Resolution 1757, On the Establishment of a Special Tribunal for Lebanon, U.N. Doc. S/​Res/​1757 (May 30, 2007). 3 Rome Statute (1998), Part 2 (Jurisdiction, Admissibility and Applicable Law). 4 See discussion infra. See au-​e u Universal Jurisdiction Report (2009), para. 29 (“Universal jurisdiction relates to the competence of a state to prosecute persons before its own courts, rather than to the prosecution of those same persons before an international judicial body.”). 5 See Restatement (Fourth) of Foreign Relations Law § 401 (2018) (Categories of Jurisdiction) (Jurisdiction to prescribe refers to “the authority of a state to make law applicable to persons, property or conduct”; jurisdiction to adjudicate refers to “the authority of a state to apply law to persons or things, in particular through the processes of its courts or administrative tribunals”; jurisdiction to enforce refers to “the authority of a state to exercise its power to compel compliance with law.”). Cf. Cedric Ryngaert, Jurisdiction in International Law 9–​10 (Oxford: 2d ed. oup 2015). Public international law does not necessarily categorize state legal authority in terms of different jurisdictions: see Jurisdictional Immunities of the State (2012), para. 113 (referring to jurisdiction to adjudicate in “jurisdictional” terms and jurisdiction to enforce in terms of “enforcement”). 6 Jurisdictional Immunities of the State (2012), para. 113.

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prescribe and jurisdiction to adjudicate have been regarded as congruent, such that a State’s exercise of adjudicative jurisdiction is an effectuation of prescriptive jurisdiction.7 The general rule governing the jurisdiction of States was articulated by the pcij in the S.S. Lotus decision: “all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”8 Domestic courts are empowered to exercise prescriptive jurisdiction according to principles—​territoriality, nationality, protective, and passive personality—​that are well established in international law. Most fundamentally, a State may exercise prescriptive jurisdiction over crimes committed within its territory.9 A State may also exercise prescriptive jurisdiction over crimes committed by its nationals.10 Conversely, the principle of passive personality permits the State to exercise prescriptive jurisdiction over crimes committed against its nationals.11 The protective principle permits the State to exercise prescriptive jurisdiction over extraterritorial conduct to protect certain fundamental interests.12 In addition, domestic courts may exercise jurisdiction based on the principle of universality over individuals with respect to international crimes.13 Universal criminal jurisdiction is typically defined in the 7 8 9

10 11 12 13

See, e.g., Roger O’Keefe, Universal Jurisdiction: Clarifying the Basic Concept, 2(3) jicj 735, 737 (2004). Put differently, a State’s prescriptive jurisdiction in criminal matters informs the scope of its adjudicative jurisdiction. S.S. “Lotus” (1927), 19. Cf. Ryngaert, op. cit. 5–​10. S.S. “Lotus” (1927), 20. This basis of jurisdiction also encompasses crimes initiated with, but completed beyond, the territory of the State, as well as crimes initiated beyond, but completed within, the territory of the State. Id. at 23. Accord, e.g., Arrest Warrant (2002), Sep. Op. Guillaume, para. 4; id., Decl. Ranjeva, para. 9; id., Sep. Op. Rezek, para. 4. S.S. “Lotus” (1927), 20. This basis of jurisdiction is applicable extraterritorially. Accord, e.g., Arrest Warrant (2002), Sep. Op. Guillaume, para. 4; id., Sep. Op. Rezek, para. 5. S.S. “Lotus” (1927), 22–​23. Accord, e.g., Arrest Warrant (2002), Sep. Op. Guillaume, para. 4; id., Sep. Op. Rezek, para. 5; id., Joint Sep. Op. Higgins, Kooijmans & Buergenthal, para. 47. S.S. “Lotus” (1927), 20 (referring to “crimes directed against public safety”). Accord, e.g., Arrest Warrant (2002), Sep. Op. Guillaume, para. 4; id., Sep. Op. Rezek, para. 4. See Institut de droit international, Krakow Session, Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes (Christian Tomuschat, Rapporteur), para. 1, 71-​i i Annuaire de l’Institut de droit international 297 (2005) (“Universal jurisdiction in criminal matters, as an additional ground of jurisdiction, means the competence of a State to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality, or other grounds of jurisdiction recognized by international law.”) (hereinafter, “iil Universal Jurisdiction Resolution (2005)”). See also au-​e u Universal Jurisdiction Report (2009), paras. 8–​9; Restatement (Fourth) of Foreign Relations Law § 413 (2018) (Universal Jurisdiction) (“International law

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negative, such that it constitutes an exercise of the prescriptive jurisdiction of the State in the absence of other accepted bases of jurisdiction.14 It is in this sense that the bases of jurisdiction available under international law with respect to international crimes are generally recognized as broader than those available with respect to other crimes.15 Universality, like other bases of jurisdiction, is a permissive principle, including to the extent it arises to enable performance of an obligation to extradite or prosecute.16 Universal criminal jurisdiction arises under customary international law and, analogously,17 under international agreements.18 The principle of universality, whose origins predate contemporary international criminal law and can be traced to recognition of the crime of piracy jure gentium,19 may be viewed as a function of the recognition by States of crimes under international law.20 The recognizes a state’s jurisdiction to prescribe law with respect to certain offenses of universal concern, such as genocide, crimes against humanity, war crimes, certain acts of terrorism, piracy, the slave trade, and torture, even if no specific connection exists between the state and the persons or conduct being regulated.”). Cf. O’Keefe, op. cit. 744–​747; Luc Reydams, Universal Jurisdiction 5, 28–​80 (Oxford: oup 2003). 14 Id. 15 See, e.g., Robert Cryer et al., an Introduction to International Criminal Law and Procedure 49 (Cambridge: 3d ed. cup 2014). 16 Draft Code of Crimes (1996), Article 9, Commentary, para. 7; Second Report on the Obligation to Extradite or Prosecute (aut dedere aut judicare) (Zdzislaw Galicki, Special Rapporteur), para. 34, U.N. Doc. a/​c n.4/​585, [2007] ii(1) YbILC 67 et seq., at 72, U.N. Doc. a/​c n.4/​s er.a/​2 007/​Add.1 (Part 1). See infra, n. 20. 17 iil Universal Jurisdiction Resolution (2005), para. 2. Cf. au-​e u Universal Jurisdiction Report (2009), paras. 9–​11 (distinguishing treaty-​based regimes of universal jurisdiction among States parties from customary international law as a basis for universal jurisdiction.). However it has been observed that extraterritorial jurisdiction established through international agreements may not be best viewed as a form of universal jurisdiction: see Claus Kreß, Universal Jurisdiction over International Crimes and the Institut de droit international, 4(3) jicj 561, 566–​567 (2006); Anthony J. Colangelo, The Legal Limits of Universal Jurisdiction, 47(1) Virginia Journal of International Law 149, 166–​169 (2006). But see O’Keefe, op. cit. 746–​747. 18 See Genocide Convention (1948), Article vi; Geneva Convention i (1949), Article 49; Geneva Convention ii (1949), Article 50; Geneva Convention iii (1949), Article 129; Geneva Convention iv (1949), Article 146; Hijacking Convention (1970), Article 4; Montreal Convention (1971), Article 5; Additional Protocol i (1977), Article 85(1); Torture Convention (1984), Article 5. For other examples, cf. Report of the International Law Commission, Seventieth Session (30 April-​1 June and 2 July-​10 August 2018), Annex A (Universal Criminal Jurisdiction), 307 et seq., at 309, n. 12, U.N. Doc. A/​73/​10 (2018) (hereinafter, “ilc, Universal Criminal Jurisdiction (2018)”). 19 See discussion supra, Chapter 1.b (The Individual as a Subject of International Law). 20 Kreß, op. cit. 575 (“[T]‌he categorization by states of conduct as a crime under customary international law must, for reasons of principles and consistency, be seen as a strong

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universality principle may also be understood in reference to, or as an effect of, obligations to extradite or prosecute individuals alleged to have committed international crimes.21 The principle of universality has also been linked to the importance placed by the international community on the prosecution of international crimes.22 Relatedly, it has been observed that a State exercising jurisdiction on the basis of the universality principle does not do so in its own interest, but rather, “as a trustee of a fundamental value of the international community.”23 Various explanations for universality as a principle of jurisdiction do not appear to be mutually exclusive.24 The principle of universality as a basis for adjudicative and prescriptive jurisdiction by States over international crimes has achieved broad recognition, though identifying the parameters of the principle is not without difficulty.25 indication in favour of a customary state competence to exercise universal jurisdiction.”); Colangelo, op. cit. 161. 21 iil Universal Jurisdiction Resolution (2005), para. 2 (“Universal jurisdiction is primarily based on customary international law. It can also be established under a multilateral treaty in the relations between the contracting parties, in particular by virtue of clauses which provide that a State party in the territory of which an alleged offender is found shall either extradite or try that person.”); see also Third Report on the Obligation to Extradite or Prosecute (aut dedere aut judicare) (Zdzislaw Galicki, Special Rapporteur), para. 47, U.N. Doc. a/​c n.4/​603, ii(1) YbILC 117 et seq., at 123, U.N. Doc. a/​c n.4/​s er.a/​2 008/​Add.1 (Part 1) (endorsing this conclusion); Ryngaert, op. cit. 133 (referring to “the classical understanding of universal jurisdiction, which is in fact informed by the principle of aut dedere aut judicare.”). 22 Cryer et al., op. cit. 57; André de Hoogh, Obligations Erga Omnes and International Crimes 164 (The Hague: Kluwer International Law 1996). In this regard, universal jurisdiction has been associated with jus cogens: see, e.g., Pinochet (1999), 589 (Millett, J.) (“The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed.”). Cf. Weatherall, op. cit. 371–​383; Ryngaert, op. cit. 127. 23 See Attorney-​General v. Eichmann, Supreme Court (Israel), Crim. Appeal No. 336/​61 (May 29, 1962), translated in 36 ilr 277, 304 (1962) (“The State of Israel therefore was entitled, pursuant to the principle of universal jurisdiction and in the capacity of a guardian of international law and an agent for its enforcement, to try the appellant.” (emphasis added)). See Kreß, op. cit. 582 (quoting Eichmann with approval). Cf. Ryngaert, op. cit. 126–​127. 24 For a purposive explanation of universal jurisdiction based on access to justice, cf. Devika Hovell, The Authority of Universal Jurisdiction, 29(2) ejil 427–​456 (2018). 25 See Arrest Warrant (2002), Diss. Op. Van den Wyngaert, paras. 44–​45 (“There is no generally accepted definition of universal jurisdiction in conventional or customary ­international law. … Many views exist as to its legal meaning and its legal status under international law.” (internal citation omitted)). This is illustrated by treatment of the scope of universal jurisdiction in the various separate and dissenting opinions appended to the 2002 Arrest

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Domestic codification of jurisdiction on the basis of universality over international crimes, and the exercise of such jurisdiction, has become widespread, though the scope of such authorities is varied.26 Two paradigmatic examples of the exercise of universal jurisdiction by States are the prosecution of Adolf Eichmann by Israel,27 and proceedings involving Augusto Pinochet in the United Kingdom instigated by Spain.28 Belgium’s well-​known pursuit of Yerodia Ndombasi,29 and Hissène Habré,30 were predicated upon its exercise of universal jurisdiction. In this regard, the universal jurisdiction statutes of Belgium and Spain are of particular note, both because of their application as well as subsequent developments to restrict their scope.31 Contemporary practice suggests a diverse and expanding application of the principle of universality by domestic legal orders.32

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Warrant decision: compare, e.g., Arrest Warrant (2002), Sep. Op. Guillaume, paras. 4, 16 (identifying universal jurisdiction as applicable only to piracy), with id., Sep. Op. Koroma, para. 9 (identifying universal jurisdiction as applicable to piracy, war crimes, crimes against humanity, including the slave trade and genocide), with id., Joint Sep. Op. Higgins, Kooijmans & Buergenthal, para. 61 (identifying piracy, war crimes, and crimes against humanity as examples of conduct over which universal jurisdiction may be exercised). Cf. O’Keefe, op. cit. 747–​759. This view persists: see ilc, Universal Criminal Jurisdiction (2018), paras. 7–​8 (“State practice regarding the exercise of universal jurisdiction reveals that aspects of the nature and substantive content of the principle are mired in legal controversy. States appear generally to agree on its legality[.]‌”). See also Hovell, op. cit. 436 (concluding that this State practice “expose[s] the limitations of a purely positivist approach to jurisdiction by judges and practitioners in universal jurisdiction cases.”). For a survey of African and European practice, for example, see au-​e u Universal Jurisdiction Report (2009), paras. 15–​27. For a more recent survey, cf. Máximo Langer and Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30(3) ejil 779–​817 (2019). For discussion of other examples, cf. Cryer et al., op. cit. 59–​65. Attorney-​General v. Eichmann, District Court of Jerusalem (Israel), Crim. Case No. 40/​ 61 (Dec. 12, 1961), translated in 36 ilr 18, 26 (1968) (“The jurisdiction to try crimes under international law is universal.”). See Pinochet (1999). See Arrest Warrant (2002), paras. 13–​15. See Questions relating to the Obligation to Prosecute or Extradite (2012), para. 21. Cf. Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction, 1(3) jicj 589 (2003) (“the only two instances of national legislation that uphold a very broad notion of universality … have been considerably weakened.”); Steven Ratner, Belgium’s War Crimes Statute: A Postmortem, 97(4) ajil 888 (2003) (“The life and death of Belgium’s universal jurisdiction law is a textbook case of the intersection of law and power in the international arena.”). Cf. Langer and Eason, op. cit. 784–​790.

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Jurisdiction over States under International Law

It is “a well-​established principle of international law” that the competence of a court to exercise jurisdiction over a State depends upon the consent of that State to such jurisdiction.33 In the absence of a State’s consent to jurisdiction, a court may not exercise jurisdiction over that State.34 This principle is unmoved by the fact that obligations erga omnes may be at issue in a dispute or that a dispute relates to compliance with a peremptory norm.35 In its East Timor judgment, the icj distinguished between consent to jurisdiction and the status of the primary rule at issue, and explained that the erga omnes character of such a rule is insufficient to overcome the requirement of consent to the court’s jurisdiction by parties to a dispute: [T]‌he Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.36 Breach of an obligation erga omnes is therefore not sufficient to engage the jurisdiction of the icj, a point that the court restated in its Armed Activities on the Territory of the Congo (Congo v. Rwanda) judgment.37 In that case, the icj extended this conclusion to peremptory norms, such that the jus cogens status of a primary rule subject to a dispute is also insufficient to overcome the requirement of consent to the court’s jurisdiction by parties to such dispute: 33

34 35 36 37

Monetary Gold (1954), 32 (“To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-​established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.”). Accord., e.g., East Timor (1995), para. 26 (“The Court recalls in this respect that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction.”); Armed Activities on the Territory of the Congo (2006), para. 125 (Referring to “the principle that its jurisdiction always depends on the consent of the parties.”). For an example of consent to such jurisdiction, see Genocide Convention (1948), Article ix. See Degan, op. cit. 525 (describing this state of affairs as “prov[ing] the total disorganization of the present international community”). East Timor (1995), para. 29. Armed Activities on the Territory of the Congo (2006), paras. 64, 125.

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The same applies to the relationship between peremptory norms of general international law (jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties.38 There appears to be little question that the character of the primary rule in dispute does not affect the general principle that the competence of a court to exercise jurisdiction over a State depends upon the consent of that State.39 A distinction therefore arises in the operation of secondary rules of standing and jurisdiction on the basis of the character of the primary rules at issue. While the common legal interest of States in the performance of obligations erga omnes is sufficient to empower a State to which such obligation is owed to invoke responsibility for breach of such an obligation,40 the character of such a primary rule does not also confer jurisdiction upon a court to adjudge such responsibility. This distinction might be viewed from the perspective of the subjects of this common legal interest, namely States, which are entitled to take certain actions by virtue of a common legal interest in a way that at least international courts are not similarly situated to act.41 Or perhaps, more abstractly, the common legal interest of States in the performance of an obligation erga omnes may be viewed to be insufficient to overcome the sovereignty of a State whose responsibility is invoked so as to enable jurisdiction to be exercised over it. Whatever the explanation for this divergence, practice indicates that the legal effects of the character of primary rules associated with duality of responsibility are distinct with respect the entitlement of a State to

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Id. (“the Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties.”). This conclusion may extend to the competence of treaty bodies that are not judicial in character. See, e.g., cerd Inter-​State Communication (2019), para. 2.15 (“The Applicant further indicates that it agrees with the Respondent that the invocation of erga omnes obligations cannot create the basis for jurisdiction,” a position that the Committee appeared to restate with approval.). See discussion supra, Chapter 9.b.iii (Standing). Other considerations related to State sovereignty inform the competence of domestic courts to exercise jurisdiction over foreign States: see discussion infra, Chapter 12.b (State Immunity under International Law).

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invoke the responsibility of a breaching State and the exercise of jurisdiction by a court over the latter State. c

Divergence in Rules of Jurisdiction

With respect to jurisdiction, domestic courts may exercise universal jurisdiction over individuals with respect to international crimes.42 The principle of universality is distinct from other bases of jurisdiction—​territory, nationality, protective, and passive personality—​and provides an additional basis for States to assert jurisdiction specifically in relation to international crimes, particularly in the absence of other bases of jurisdiction.43 By contrast, the competence of a court to exercise jurisdiction over a State is contingent upon the consent of that State to such jurisdiction.44 This principle applies even where breaches of peremptory norms, which would constitute international crimes where attributed to an individual, or obligations erga omnes are at issue.45 It is clear, then, that the exercise of universal jurisdiction by domestic courts over individuals, and the analogous exercise of jurisdiction over individuals by international courts and tribunals, is distinct from the exercise of jurisdiction over States in relation to the same primary rules and obligations arising therefrom. Not only are the secondary rules of international law governing jurisdiction over individuals and States distinct but, as they operate in the context of primary rules giving rise to duality of responsibility, their operation appears to diverge: there is no equivalent principle of universality that operates with respect to jurisdiction over States. One explanation for the absence of universality as a jurisdictional principle applicable to States may be a function of State practice. States appear to have accepted universal jurisdiction over individuals allegedly responsible for 42

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See discussion supra, Chapter 11.a (Jurisdiction over Individuals under International Law). Universal jurisdiction exercised by domestic courts is distinct from the jurisdiction exercised by international courts and tribunals, which is established through other sources of law. See, e.g., The au-​e u Universal Jurisdiction Report (2009), para. 29 (“Universal jurisdiction relates to the competence of a state to prosecute persons before its own courts, rather than to the prosecution of those same persons before an international judicial body.”). Id. paras. 8–​9. See also Restatement (Fourth) of Foreign Relations Law § 413 (2018) (Universal Jurisdiction). See discuss ion supra, Chapter 11.b (Jurisdiction over States under International Law). East Timor (1995), para. 29; Armed Activities on the Territory of the Congo (2006), paras. 64, 125.

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crimes under international law but have not accepted a corresponding jurisdictional principle over States to which such conduct may be attributable. As discussed above, the principle of universality as a basis for adjudicative and prescriptive jurisdiction over international crimes has achieved broad recognition among States.46 The principle of universality has been linked to the importance placed by the international community on the prosecution of international crimes.47 In this way, States have admitted an expansion of their own jurisdictional competence over individuals allegedly responsible for crimes under international law. By contrast, there is little indication in the practice of States that these same considerations extend to the exercise of jurisdiction over a State to which a crime under international law, or breach of an obligation erga omnes, may be attributable.48 Instead, the exercise of adjudicative jurisdiction over States remains contingent upon State consent.49 The icj has concluded that this principle is unmoved by the character of a primary rule at issue, to include obligations erga omnes and peremptory norms.50 Moreover, with regard to domestic courts in particular, the exercise of jurisdiction is at base an exercise of sovereignty.51 Accordingly, the principle par in parem non habet imperium—​between equals no power—​informs limitation of the exercise of jurisdiction by domestic courts over foreign States.52 This 46

Cf. ilc, Universal Criminal Jurisdiction (2018), para. 7 (“States appear generally to agree on its legality[.]‌”); Ryngaert, op. cit. 132–​133. 47 Cryer et al., op. cit. 57; de Hoogh, op. cit. 164. In this regard, universal jurisdiction has been associated with jus cogens: see, e.g., Pinochet (1999), 589 (Millett, J.) (“The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed.”). Cf. Weatherall, op. cit. 371–​383; Ryngaert, op. cit. 126–​127. 48 See Degan, op. cit. 525–​526. 49 Monetary Gold (1954), 32; East Timor (1995), para. 26; Armed Activities on the Territory of the Congo (2006), para. 125. 50 East Timor (1995), para. 29; Armed Activities on the Territory of the Congo (2006), paras. 64, 125. 51 S.S. “Lotus” (1927), 19 (“[A]‌ll that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”). Accord, e.g., Ryngaert, op. cit. 5–​10. 52 Jurisdictional Immunities of the State (2012), para. 57; Ian Sinclair, The Law of Sovereign Immunity: Recent Developments, [1980 ii] 167 Recueil des Cours 198 (Alphen aan den Rijn: Sijthoff and Noordhoff 1981) (“Immunity, expressed in the maxim par in parem non habet imperium, is in principle concerned with the status of sovereign equality enjoyed by all independent States.”); Hans Kelsen, Principles of International Law 235 (Clark: The Lawbook Exchange, Ltd. 2003) (“[N]‌o state has jurisdiction over another state. This principle is usually presented as a consequence of the fundamental right of equality and formulated as par in parem non habet imperium (“equals do not have jurisdiction over each other”).”).

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principle also appears to admit no exception in cases concerning crimes under international law.53 In sum, States do not appear to have admitted exceptions to principles governing the exercise of jurisdiction as they apply to States to which crimes under international law or breaches of obligations erga omnes may be attributable.54 Practice described above indicates that respectively permissive and restrictive secondary rules governing jurisdiction over individuals and States have been motivated by distinct underlying interests and principles, yielding divergent outcomes on the basis of the subject of international law at issue. Under present international law, there appears to be no permissive principle of universality that enables the exercise of jurisdiction over States analogous to that available over individuals for international crimes, even where such crimes may be attributable to a State. Another, more technical explanation for this divergence may lie in the basis of universal jurisdiction over international crimes. As discussed above, universal criminal jurisdiction can be viewed in reference to, or as an effect of, obligations of States to extradite or prosecute individuals alleged to have committed international crimes.55 Universal criminal jurisdiction arises in both international agreements and customary international law and can be viewed in reference to, or as an effect of, obligations of States to extradite or prosecute individuals alleged to have committed international crimes.56 Jurisdiction based on the principle of universality may, from this perspective, be regarded as a backstop that facilitates a State’s performance of obligations to extradite or prosecute in the absence of other bases of jurisdiction.57 In this way, universal jurisdiction, itself a permissive principle, can be seen as a product or

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This is confirmed in the application of sovereign immunity in such cases on the basis of this principle: See discussion infra, Chapter 12.b (State Immunity under International Law). To the extent that universal jurisdiction is viewed as “a mechanism intended not to promote state interests but, rather, to disrupt state machinery,” see Hovell, op. cit. 435, it is perhaps unsurprising from this perspective that States have not accepted an analogous principle of universality applicable to States themselves. See also Ryngaert, op. cit. 126–​127 (describing the difficulty of sustaining “state-​centered” rationales for universal jurisdiction). See supra, n. 21. See discussion supra, Chapter 11.a (Jurisdiction over Individuals under International Law). Id. Draft Code of Crimes (1996), Article 9, Commentary, para. 7; Second Report on the Obligation to Extradite or Prosecute (aut dedere aut judicare) (Zdzislaw Galicki, Special Rapporteur), para. 34, U.N. Doc. a/​c n.4/​585, [2007] ii(1) YbILC 67 et seq., at 72, U.N. Doc. a/​c n.4/​s er.a/​2007/​Add.1 (Part 1).

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necessary corollary of the performance by States of such obligations associated with international crimes.58 To the extent that universal jurisdiction can be viewed as a product or corollary of obligations to extradite or prosecute individuals alleged to have committed international crimes, such association would account for the absence of a corresponding jurisdictional principle applicable in relation to States. This is because there is no analogous obligation under international law the performance of which would require exercise of jurisdiction by domestic courts over foreign States. As a result, there is no parallel basis upon which jurisdiction might be exercised over States pursuant to the performance of an obligation under international law. In effect, international law may be viewed to admit an additional principle of jurisdiction over individuals with respect to international crimes which, due to its linkage to obligations to extradite or prosecute, has no functional corollary in the exercise of jurisdiction over States. 58

See, e.g., Milutinović et al., it-​99-​37-​p t, Decision on Motion Challenging Jurisdiction, Sep. Op. Robinson, para. 6 (May 6, 2003) (“[T]‌he norms breached by crimes that attract universal jurisdiction form part of jus cogens. These norms safeguard the interest of the international community as a whole. All States are entitled, under customary international law to prosecute offenders for breach of these norms, irrespective of the place of commission of the offence or the nationality of the offender or victim; it is argued by some that the breach of such a peremptory norm results not in the right, but in the obligation of all States to prosecute offenders, irrespective of the place of commission of the offence or the nationality of the offender or victim. At the conventional level, many States are parties to a number of treaties obliging them to prosecute offenders if they do not extradite them, generally, irrespective of the place of commission of the offence or the nationality of the offender or victim.” (internal citation omitted)).

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Immunity a

Immunity of Individuals under International Law

Immunity operates as a procedural bar to jurisdiction and “the application of immunity from jurisdiction will have the effect of immobilizing the competent jurisdiction.”1 While immunity and jurisdiction are related in practice, the two remain distinct. The icj, in taking note of this distinction in the Arrest Warrant case, explained that “jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.”2 Therefore, while both international and domestic courts may have jurisdiction over individuals in relation to international crimes, whether or not immunities would operate to immobilize such jurisdiction is a separate question. Two forms of individual immunity derive from sovereign immunity under customary international law: immunity ratione personae (immunity from personal jurisdiction) and immunity ratione materiae (immunity from subject-​matter jurisdiction). Immunity Ratione Personae i Immunity ratione personae refers to the immunity of certain high State officials, such as Heads of State, Heads of Government, and Ministers of Foreign Affairs because “he or she is recognized under international law as representative of the State solely by virtue of his or her office.”3 Immunity ratione personae is therefore a status-​based immunity.4 As such, immunity ratione personae is temporal, lasting only so long as the official holds the office conferring such

1 Sixth Report on Immunity of State Officials (Concepción Escobar Hernández, Special Rapporteur), para. 98. Immunity may be characterized as a limitation of adjudicative jurisdiction. See discussion supra, Chapter 11.a (Jurisdiction over Individuals under International Law). 2 Arrest Warrant (2002), para. 59. 3 Id. para. 53. 4 Pinochet (1999), 644 (Millett, L.) (“Immunity ratione personae is a status immunity. An individual who enjoys its protection does so because of his official status. It enures for his benefit only so long as he holds office. While he does so he enjoys absolute immunity from the civil and criminal jurisdiction of the national courts of foreign states. But it is only narrowly available.”).

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immunity.5 In Arrest Warrant, the icj considered immunity ratione personae to be subject to certain limitations, including that it cannot shield an official from prosecution in his home country, it may be waived by the official’s home State, it terminates at the end of an official’s tenure, and an individual enjoying such immunity may nevertheless by subject to the jurisdiction of “certain international criminal courts.”6 1 International Courts and Tribunals There is support for the proposition that immunity ratione personae is unavailable before international courts and tribunals.7 The basis for such unavailability remains the subject of some debate. To the extent that immunity ratione personae is unavailable before international courts and tribunals, arguably, it is determinative that the competence of such international judicial organs is established through the exercise of the Chapter vii authority of the Security Council,8 or an applicable international agreement. For example, the ictr and icty were established by Security Council resolutions.9 In this sense, the authorities conferring competence to international courts and tribunals may be interpreted as waiving or displacing otherwise applicable immunity ratione personae based on a theory of quasi-​or implied consent.10 The scsl 5 6 7

8 9

10

See id. at 637 (Hutton, L.); 641 (Saville, L.); 653 (Phillips, L.); 644 (Millett, L.) (“This immunity is not in issue in the present case. Senator Pinochet is not a serving head of state. If he were, he could not be extradited.”). Arrest Warrant (2002), para. 61. Id. See, e.g., Al Bashir, icc-​0 2/​05-​01/​09, Judgement in the Jordan Referral re Al-​Bashir Appeal, para. 113 (May 6, 2019); Al Bashir, icc-​0 2/​05-​01/​09, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, paras. 36–​43 (Dec. 13, 2011) (hereinafter, “Al-​Bashir Malawi Decision (2011)”); Al Bashir, icc-​0 2/​05-​01/​09, Decision Pursuant to Article 87(7) of the Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, para. 13 (Dec. 13, 2011). UN Charter, Articles 25, 103. unsc Resolution 955, U.N. Doc. S/​Res/​955 (Nov. 8, 1994) (establishing ictr); unsc Resolution 827, U.N. Doc. S/​Res/​827 (May 25, 1993) (establishing icty). Note that Article 7(2) of the icty Statute provides that “[t]‌he official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”). Article 6(2) of the ictr Statute contains a parallel provision. See also unsc Resolution 1966 (2010), On establishment of the International Residual Mechanism for Criminal Tribunals with two branches and the adoption of the Statute of the Mechanism, U.N. Doc. S/​Res/​1966 (Dec. 22, 2010). Cf. Roger O’Keefe, International Criminal Law paras. 3.39–​3.44 (Oxford: oup 2015).

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was created pursuant to a Security Council resolution through “an agreement between all members of the United Nations and Sierra Leone,” and as such a waiver of immunity ratione personae might be implied thereby.11 With respect to the icc, the Rome Statute, at Article 27(2), expressly reflects the unavailability of immunity ratione personae before the court.12 Moreover, the icc has been recognized as an “independent permanent judicial institution” pursuant to a relationship agreement concluded with the United Nations, and may obtain jurisdiction with respect to States not party to the Convention through referral by the Security Council.13 Accordingly, unavailability of immunity ratione personae before the icc may be interpreted to be a function of express waiver by operation of the Rome Statute and, where jurisdiction over non-​parties is established through a Security Council Resolution, by operation of quasi-​or implied consent.14 The appeals chambers of international courts that have addressed this issue have not adopted this reasoning, but rather, have taken the position that immunity ratione personae is unavailable before such courts ab initio. Regarding officials of States not party to the Rome Statute, for example, in the case concerning Omar Al-​Bashir, the icc Pre-​Trial Chambers advanced a number of theories about the unavailability of immunity ratione personae of high State

11

unsc Resolution 1315, On the Situation in Sierra Leone, U.N. Doc. S/​Res/​1315 (Aug. 14, 2000). Accord. Taylor, scsl-​03-​01-​i , Decision on Immunity from Jurisdiction, para. 37 (May 31, 2004). See also scsl Statute (2002), Article 6(2) (“The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”). 12 Rome Statute (1998), Article 27(2) (“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”). See also Article 27(1) (“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”). 13 Negotiated Relationship Agreement between the International Criminal Court and the United Nations, Article 2(1) (adopted by the Assembly of States Parties on Sept. 7, 2004 (icc-​a sp/​3/​Res.1), adopted by the unga on Sept. 13, 2004 (A/​Res/​58/​318), entered into force Oct. 4, 2004). 14 O’Keefe, op. cit. para. 3.43; Dapo Akande, International Law Immunities and the International Criminal Court, 98(3) ajil 407, 415–​ 419 (2004); Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-​Parties: Legal Basis and Limits, 1(3) jicj 618, 635 (2003); Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7(2) jicj 333, 348 (2009).

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officials from non-​parties to the Rome Statute before the icc—​that is, where a State could not be said to have consented to a waiver of immunity under the Rome Statute.15 The icc Appeals Chamber ultimately took the position that Article 27(2) of the Rome Statute is not itself the source of the unavailability of immunity ratione personae before the court.16 Rather, the icc Appeals Chamber found that there is neither State practice nor opinio juris that would support the existence of Head of State (i.e., ratione personae) immunity vis-​à-​ vis an international court under customary international law.17 This same position had been taken with respect to Charles Taylor by the Appeals Chamber of the scsl, which held that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”18 The rationale for the unavailability of immunity ratione personae adopted by the Appeals Chambers of the icc and scsl reflects a view of immunity ratione personae as a doctrine of sovereign equality running horizontally between States not similarly implicated on a vertical plane by international courts.19 By this reasoning, immunity ratione personae is unavailable before international courts and tribunals ab initio rather than through a waiver, implied or otherwise, by the official’s home State. 2 Domestic Courts Immunity ratione personae under customary international law is generally available to high State officials before foreign domestic courts, including where

15

See, e.g., Al Bashir, icc-​02/​05-​01/​09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, para. 29 (Apr. 9, 2014) (finding that the UN Security Council “implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State.”); Al-​Bashir Malawi Decision (2011), paras. 36–​43 (finding that “the principle in international law is that immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court” and that “customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes.”). This is a function of the rule provided at Article 34 of the Vienna Convention on the Law of Treaties. 16 Al Bashir, icc-​02/​05-​01/​09, Judgement in the Jordan Referral re Al-​Bashir Appeal, paras. 103, 122 (May 6, 2019). 17 Id. paras. 113, 117. 18 Taylor, scsl-​03-​01-​i , Decision on Immunity from Jurisdiction, para. 52 (May 31, 2004). 19 Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46(4) Georgetown Journal of International Law 1151, 1174–​1176 (2015).

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jurisdiction is exercised in relation to international crimes.20 The applicability of immunity ratione personae before domestic courts gives effect to the rationale underlying sovereign immunity, par in parem non habet imperium.21 The leading decision for the proposition that immunity ratione personae applies before domestic courts in the context of international crimes is the 2002 Arrest Warrant judgment.22 The case concerned a Belgian arrest warrant for the incumbent Foreign Minister of the Congo, Abdu aye Yerodia Ndombasi, on the basis of alleged grave breaches of the 1949 Geneva Conventions and the Additional Protocols and crimes against humanity.23 The icj articulated the general rule that, “in international law it is firmly established that … certain holders of high-​ranking offices in a State … enjoy immunities from jurisdiction in other states.”24 Accordingly, as an incumbent Foreign Minister, the icj held that Ndombasi enjoyed “immunity from criminal jurisdiction and inviolability” from prosecution before domestic courts.25 This immunity was available to Ndombasi notwithstanding that the conduct in question violated peremptory norms and constituted international crimes.26 This same position finds expression in various domestic court decisions, some of which preceded the Arrest Warrant judgment.27 For example, in Pinochet, the Law Lords observed in dicta that immunity ratione personae would have precluded the exercise of jurisdiction by UK courts had Pinochet remained in a position conferring such immunity at the time of litigation.28 20 21

22 23 24 25 26 27 28

Arrest Warrant (2002), para. 61 (listing exceptions). See discussion supra, Chapter 12.a.i (Immunity Ratione Personae). Ian Sinclair, The Law of Sovereign Immunity: Recent Developments, [1980 ii] 167 Recueil des Cours 198 (Alphen aan den Rijn: Sijthoff and Noordhoff 1981) (“Immunity, expressed in the maxim par in parem non habet imperium, is in principle concerned with the status of sovereign equality enjoyed by all independent States.”). Cf. Jurisdictional Immunities of the State (2012), paras. 57, 87. Arrest Warrant (2002). Id. paras. 13–​15. Id. para. 51. Id. para. 54. Id. para. 58. Accord. Jurisdictional Immunities of the State (2012), para. 95 (noting that Arrest Warrant (2002) concerned “criminal violations of rules which undoubtedly possess the character of jus cogens”). Cf. Akande (2004), op. cit. 411 (citing cases). Pinochet (1999), 641 (Saville, L.); 644 (Millett, L.); 653 (Phillips, L.); 673 (Hutton, L.) (Per Lord Phillips: “If Senator Pinochet were still the head of state of Chile, he and Chile would be in a position to complain that the entire extradition process was a violation of the duties owed under international law to a person of his status. A head of state on a visit to another country is inviolable. He cannot be arrested or detained, let alone removed against his will to another country, and he is not subject to the judicial processes, whether

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Similarly, in Gaddafi, the French Court of Cassation reached the same conclusion in criminal proceedings against the then-​de facto Head of State of Libya, alleging his involvement in terrorism arising from the bombing of a civilian airliner over Chad.29 In reversing a judgment by the French Court of Appeal—​ which had identified an exception to immunity ratione personae on the basis of criminal prosecution arising from jus cogens30—​the Court of Cassation found that customary international law precluded the criminal prosecution of an incumbent Head of State by a foreign court in the absence of binding, specific provisions to the contrary.31 The Court of Cassation of Belgium found that the immunity ratione personae of Ariel Sharon, then-​incumbent Prime Minister of Israel, applied to criminal prosecution under Belgium’s universal jurisdiction statute.32 The Supreme Court of South Africa reached the same general conclusion regarding then-​incumbent Sudanese President Omar Al-​ Bashir.33 However the Court of Appeal of Kenya considered immunity ratione personae to be unavailable to Al-​Bashir.34 Immunity Ratione Materiae ii Immunity ratione materiae refers to the immunity enjoyed by organs of the State for acts performed in their official capacity, which the “State is entitled to claim … [as acts] attributed to the State, so that the individual organ may

29 30

31 32 33 34

civil or criminal, of the courts of the state that he is visiting. But Senator Pinochet is no longer head of state of Chile.”). Gaddafi, Cour de cassation (France), No. 00-​87215 (Mar. 13, 2001), translated in 152 ilr 490 (2001). Gaddafi, Chambre d’accusation (Paris) (Oct. 20, 2000), translated in 152 ilr 496 (“[I]‌t appears that since 1945 the international community has provided for the prosecution of Heads of State in office committing international crimes and the International Court of Justice has even considered that the prosecution of such acts is based on a binding universally applicable norm of jus cogens, pursuant to Article 5[3] of the Vienna Convention on the Law of Treaties.”). Gaddafi, Cour de cassation (France), No. 00-​87215 (Mar. 13, 2001), translated in 152 ilr 509 (2001) (“[T]‌he alleged crime, however serious, did not constitute one of the exceptions to the principle of the jurisdictional immunity of foreign Heads of State in office.”). Re Sharon and Yaron, H.S.A. v. S.A. (Ariel Sharon) and Y.A. (Amos Yaron), Court of Cassation (Belgium), No. P.02.1139.F/​2 (Feb. 12, 2003), reprinted in 127 ilr 110 (2003). See The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Supreme Court of Appeal (South Africa), No. 867/​15 [2016], zasca 17 (Wallis, JA), para. 84 (Mar. 15, 2016). Attorney General & 2 others v. Kenya Section of International Commission of Jurists, Kenya Court of Appeal (Nairobi), Civil Appeal No. 105 of 2012 and Criminal Appeal No. 274 of 2011 (consolidated), Judgment, [2018] eKLR (Feb. 16, 2018).

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not be held accountable for those acts or transactions.”35 In effect, because such official conduct is attributed upward to the State, “sovereign immunity, which belongs to a foreign state, extends to an individual official acting on behalf of that foreign state.”36 The purpose of immunity ratione materiae is to prevent the immunity of the State from circumvention by suing a named official in place of the State.37 By contrast to immunity ratione personae, which is immunity from personal jurisdiction, immunity ratione materiae is immunity from subject-​matter jurisdiction. Moreover, immunity ratione materiae is conduct-​based rather than status-​based and, as such, attaches to conduct attributable to the State even after an individual’s official status terminates.38 Thus, while immunity ratione personae is limited by tenure in office, immunity ratione materiae is limited by the scope of official acts performed in that capacity by a State organ.39 It follows that immunity ratione materiae does not apply to acts of State organs beyond their official conduct.40 Where a State organ is impleaded for acts outside of its official conduct, the organ is considered to be sued in its individual capacity because the suit is not properly a suit against the sovereign.41 Generally, then, the unavailability of immunity ratione materiae would suggest that the underlying conduct at issue was not attributable upward to the State in such a way as to attract the downward projection of sovereign immunity.42 As discussed at greater length above, there 35 36 37 38

39 40 41 42

Blaškić (1997), para. 41. See Hazel Fox and Philippa Webb, The Law of State Immunity 364 (Oxford: 3d ed. oup 2013). Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir. 2012) cert. denied, 134 S. Ct. 897 (2014) (citing Underhill v. Hernandez, 168 U.S. 250, 252 (1897)) (emphasis in original). Jones v. United Kingdom, ECtHR (Fourth Section), Nos. 34356/​06 & 40528/​06, Judgment, para. 202 (Jan. 14, 2014) (hereinafter, “Jones (2014)”). This distinction between individual immunities under customary international law is without comment on individual immunities established by treaties. However, “diplomatic immunity” might be characterized as a form of immunity ratione personae. See Vienna Convention on Diplomatic Relations, 500 u.n.t.s. 95, Article 31 (Apr. 18, 1961, entered into force Apr. 24, 1964). By contrast, “consular immunity” is a form of immunity ratione materiae. See Vienna Convention on Consular Relations, 596 u.n.t.s. 261, Article 43 (Apr. 24, 1963, entered into force Mar. 19, 1967). Cf. Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction (Roman A. Kolodkin, Special Rapporteur), U.N. Doc. a/​c n.4/​601, paras. 78–​82 (May 29, 2008). Jones (2014), para. 205 (“It is clear from the foregoing that individuals only benefit from State immunity ratione materiae where the impugned acts were carried out in the course of their official duties.”). See, e.g., Chuidian v. Philippine National Bank, 912 F.2d 1095, 1106 (9th Cir. 1990). But see discussion supra, Chapter 8.e (Attribution to the State and Individual Immunity Ratione Materiae).

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is support for the proposition that individual conduct by a State organ constituting an international crime is not properly regarded as undertaken in its “official capacity” such that it would attract immunity ratione materiae under international law.43 1 International Courts and Tribunals International courts and tribunals established since the end of the Second World War have declined to recognize the applicability of immunity ratione materiae to international crimes.44 This is perhaps unsurprising in view of the fact that, because international courts and tribunals have been established with limited ratione materiae jurisdiction over specific international crimes enumerated in their constitutive instruments,45 application of immunity ratione materiae coextensive with that jurisdiction over international crimes would have the paradoxical effect of immobilizing the jurisdiction of such courts and tribunals. The Charters of the imt at Nuremberg and the imt for the Far East provided that neither the official position of a defendant, nor the fact that a defendant acted pursuant to orders, could absolve such official from responsibility.46 The Judgment of the imt at Nuremberg took the position that international crimes within the ratione materiae jurisdiction of the tribunal fell outside the scope of the official conduct of individuals before the tribunals: The principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. … [I]‌ndividuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.47 43

44 45 46 47

Cf. Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 183 (2017) (Text of the draft article[s]‌, with commentary thereto, provisionally adopted by the Commission at its sixty-​ninth session, Article 7, Commentary, para. 11); Second Report on Immunity of State Officials (Roman A. Kolodkin, Special Rapporteur), paras. 56–​57. See discussion supra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). See imt Charter (1945), Article 7; Tokyo Charter (1946), Article 6. See discussion supra, Chapter 11.a (Jurisdiction over Individuals under International Law). imt Charter (1945), Articles 7–​8; Tokyo Charter (1946), Article 6. imt Judgment and Sentences (1946), 221.

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In accounting for the inapplicability of immunity ratione materiae to international crimes, the imt at Nuremberg also provided an explanation for such unavailability based on limits of the ability of the State to authorize such conduct from the standpoint of international law. Other international courts and tribunals have similarly taken the position that immunity ratione materiae is not applicable to international crimes.48 For example, the icty Trial Chamber in Furundžija expressly invoked this holding by the imt at Nuremberg when articulating consequences of international criminal responsibility arising from an individual’s violation of a peremptory norm.49 Similarly, the icty Appeals Chamber in Blaškić held that functional immunity is unavailable for international crimes, regardless of whether a State organ ostensibly carried out such conduct in that capacity.50 This same position is necessarily implied in the holding of the scsl Appeals Chamber in Taylor, which concluded that sovereign equality “does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”51 Article 27(2) of the Rome Statute provides that immunity ratione materiae is

48

The statutes of other international courts and tribunals include provisions concerning irrelevance of the official position of an accused and action pursuant to orders similar to those found in the charters of the imt at Nuremberg and the imt for the Far East: see, e.g., Rome Statute (1998), Articles 27, 33; scsl Statute (2002), Article 6; ictr Statute (1994), Article 6; icty Statute (1993), Article 7. 49 Furundžija, it-​95-​17/​1-​t, Judgement, para. 155 (Dec. 10, 1998) (“The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-​state and individual levels. At the inter-​state level, it serves to internationally de-​legitimise any legislative, administrative or judicial act authorising torture. … [P]‌erpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’.” (internal citation omitted)). 50 Blaškić (1997), para. 41 (“[T]‌hose responsible for such [international] crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity. … Similarly, other classes of persons … although acting as State organs, may be held personally accountable for their wrong­ doing.”). See also Kristić, it-​98-​33-​a , Decision on Application for Subpoenas, para. 26 (July 1, 2003) (“It may be the case (it is unnecessary to decide here) that, between States, such a functional immunity exists against prosecution for those acts, but it would be incorrect to suggest that such an immunity exists in international criminal courts.”). 51 Taylor, scsl-​03-​01-​i -​059, Decision on Immunity from Jurisdiction, para. 56 (May 31, 2004).

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unavailable before the icc,52 a provision the icc Appeals Chamber considers to reflect customary international law.53 2 Domestic Courts There is widespread support for the proposition that immunity ratione materiae is unavailable before domestic courts for foreign State organs alleged to have committed international crimes.54 The Institut de Droit International adopted this position in its Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes.55 This position is also reflected in an article provisionally adopted by the ilc in the Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction.56 Article 7 of the Draft Articles provides a list of crimes under international law with respect to which immunity ratione materiae shall not apply.57 As explained in the ilc commentary to the provision, Article 7 is intended to reflect the position that immunity ratione materiae is inapplicable even where a State organ has carried out an act in that capacity that 52 53 54 55

56 57

Rome Statute (1998), Article 27(2). Al Bashir, icc-​02/​05-​01/​09, Judgement in the Jordan Referral re Al-​Bashir Appeal, para. 122 (May 6, 2019). Cf. Akande (2004), op. cit. 413; Weatherall (2015), op. cit. 1182–​1199. But see Ingrid Wuerth, Pinochet’s Legacy Reassessed, 106(4) ajil 731–​768 (2012) (arguing that State practice does not support the unavailability of immunity ratione materiae for international crimes). See Institut de droit international, Napoli Session, Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes (Hazel Fox, Rapporteur), Article iii(1), 73 Annuaire de l’Institut de droit international 227 (2009). Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 164–​165 (2017) (discussing provisional adoption by the ilc following a vote). ilc Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, Draft Article 7 (Crimes under international law in respect of which immunity ratione materiae shall not apply): 1. Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance. 2. For the purposes of the present draft article, the crimes under international law mentioned above are to be understood according to their definition in the treaties enumerated in the annex to the present draft articles.

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would constitute and international crime.58 In the ilc project on jus cogens, the ilc Drafting Committee adopted a corresponding conclusion, not clearly limited to foreign criminal jurisdiction,59 however that provision was subsequently removed in the face of opposition apparently based in part on practice in the context of civil proceedings against States.60 To the extent the icj has confronted the issue, the inapplicability of immunity ratione materiae to the international crime of torture may be inferred by necessary implication in its Questions Relating to the Obligation to Prosecute or Extradite judgment.61 There are many examples of the denial by domestic courts of immunity ratione materiae in relation to international crimes committed by foreign State organs. One early instance of such denial of immunity ratione materiae is the Eichmann case, in which the Supreme Court of Israel reasoned that international crimes fall beyond the capacity of the State to sanction and, as such,

58 59

60 61

Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 178 (2017) (Text of the draft article[s]‌, with commentary thereto, provisionally adopted by the Commission at its sixty-​ninth session, Article 7, Commentary, para. 4). See Third Report on Peremptory Norms of General International Law (Jus Cogens) (Dire Tladi, Special Rapporteur), Draft Conclusion 23, U.N. Doc a/​c n.4/​714 (Feb. 12, 2018) (Irrelevance of official position and non-​applicability of immunity ratione materiae) (“1. The fact that an offence prohibited by a peremptory norm of general international law (jus cogens) was committed by a person holding an official position shall not constitute a ground excluding criminal responsibility. 2. Immunity ratione materiae shall not apply to any offence prohibited by a peremptory norm of general international law (jus cogens).”). Report of the International Law Commission, Seventieth Session (30 April-​1 June and 2 July-​10 August 2018), Ch. viii (Peremptory Norms of General International Law (Jus Cogens)), 224 et seq., at 229, para. 110, U.N. Doc. A/​73/​10 (2018). The case involved the indictment of Hissène Habré, the former President of Chad, for various international crimes and issuance of an arrest warrant by Belgium. Belgium sought Habré’s extradition from Senegal for prosecution under its international crimes statute, which excludes immunity ratione materiae. The Chambre d’accusation of the Dakar Court of Appeal rejected Belgium’s request on the basis that the conduct at issue was “committed in the exercise of [Habré’s] functions” as President of Chad and thereby attracted immunity ratione materiae. Belgium ultimately instituted proceedings against Senegal before the icj concerning its compliance with its obligation to prosecute or extradite Habré for acts of torture. The icj held that Senegal was in breach of obligations under the Torture Convention which required it to prosecute or extradite Habré. While the icj was silent on the issue of immunity ratione materiae raised by Senegal, in ordering Senegal to submit the case for prosecution or extradite Habré, the unavailability of immunity ratione materiae to the prosecution of the international crime of torture by domestic courts may be inferred by necessary implication. See Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 21–​22, 33, 99, 117, 122(6).

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an official perpetrating such acts may be held personally responsible.62 The UK House of Lords decisions in Pinochet are ubiquitously cited in support of the proposition that immunity ratione materiae does not apply before domestic courts for international crimes.63 In that case, the Law Lords explained that mere criminality is insufficient to render immunity ratione materiae inapplicable, as criminal conduct may be carried out by a State organ or ­instrumentality in its official capacity, thereby attracting immunity ratione materiae.64 Instead, because an international crime, such as conduct covered by the Torture Convention, cannot be authorized by the sovereign and necessarily falls beyond the exercise of government functions, such conduct does not attract immunity ratione materiae.65 The Amsterdam Court of Appeal in Bouterse similarly found that the international crimes of torture and crimes against humanity fell beyond the official duties of the office of the former Head of State of Suriname and, accordingly, rejected the application of immunity ratione materiae in criminal proceedings.66 The French Court of Assizes declined to recognize immunity ratione materiae in the criminal prosecution of a Mauritian intelligence officer for torture in the Ould Dah case.67 After his conviction by the French Court of Assizes,68 Dah appealed to the European Court of Human Rights (ECtHR), which affirmed in relevant part that immunity ratione materiae is not applicable to criminal prosecution for torture on the basis of the jus cogens character of its prohibition.69 The Federal Criminal 62 63 64

65 66 67

68 69

Attorney-​General v. Eichmann, Supreme Court (Israel), Crim. Appeal No. 336/​61, § 14 (May 29, 1962), translated in 36 ilr 277, 309–​310 (1962). See Pinochet (1999). Id. at 593 (Browne-​Wilkinson, L.) (“It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions which are criminal under the local law can still have been done officially and therefore give rise to immunity ratione materiae. The case needs to be analysed more closely.”). Id. at 594–​95 (Browne-​Wilkinson, L.); 626 (Hope, L.); 639 (Hutton, L.); 643 (Saville, L.); 651 (Millett, L.); 663 (Phillips, L.). Bouterse (2000), para. 4.2 (“the commission of very serious offences as are concerned here—​cannot be considered to be one of the official duties of a head of state.”). Ely Ould Dah, Cour d’assises (Nîmes), No. 70/​05 (Arrêt de condamnation) (July 1, 2005); Ely Ould Dah, Cour d’assises (Nîmes), No. 71/​05 (Arrêt statuant due les intérêts civils) (July 1, 2005). See also Ould Dah v. France, ECtHR (Fifth Section), No. 13113/​03, Judgment (Admissibility) (Mar. 30, 2009), translated in 48(4) ilm 884 (2009). Cf. Maria Gavouneli, Introductory Note to the European Court of Human Rights Decision: Ould Dah v. France, 48(4) ilm 869 (2009). Id. at 885. Id. at 894 (“The Court considers that, in agreement with icty jurisprudence, the prohibition against torture is an imperative norm, in otherwords jus cogens. Even if states can claim immunity from responsibility in civil cases for acts of torture allegedly perpetrated but not provided for in the forum state, this case deals with the criminal responsibility of

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Court of Switzerland dismissed a claim of immunity ratione materiae in criminal proceedings for torture and war crimes against former Algerian defense minister Kahled Nezzar.70 The Supreme Court of South Africa, in finding South Africa’s failure to arrest and surrender then-​Sudanese President Al-​Bashir to the icc was unlawful, held that immunity ratione materiae is unavailable in South African courts for the prosecution of an international crime.71 The Kenya Court of Appeal, in its finding that Al-​Bashir was subject to arrest and detention in Kenya, held that immunity is not available “where the official is accused of committing international crimes.”72 The exercise of jurisdiction by the Spanish Supreme Court over eight former Guatemalan officials, including former president Efrain Rios Montt, for acts of torture, genocide, terrorism, and grave breaches of international humanitarian law, allows for the inference that immunity ratione materiae was viewed to be inapplicable to such crimes.73 Such rejection by domestic courts of immunity ratione materiae in relation to international crimes has no comparable body of contrary practice.74 an individual for acts of alleged torture and not with state immunity in a civil claim by a torture victim.” (internal citation omitted)). 70 A v. Office of the Attorney General of Switzerland, Federal Criminal Court (Switzerland), No. bb.2011.140, A, Bundesstrafgericht [BStR], para. 5.4.3 (July 25, 2012) (unofficial translation by trial) (quoted supra, Chapter 8, n. 64). 71 The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Supreme Court of Appeal (South Africa), No. 867/​15, [2016] zasca 17 (Wallis, JA), paras. 94–​95 (Mar. 15, 2016). 72 Attorney General & 2 others v. Kenya Section of International Commission of Jurists, Kenya Court of Appeal (Nairobi), Civil Appeal No. 105 of 2012 and Criminal Appeal No. 274 of 2011 (consolidated), Judgment, [2018] eKLR 18–​24 (Feb. 16, 2018). 73 Guatemala Genocide Case, Constitutional Court (Spain), Judgment No. 237/​2005 (Sep. 26, 2005). See also Luis Benavides, Introductory Note to the Supreme Court of Spain: Judgment on the Guatemalan Genocide Case, 42(3) ilm 683 (2003). 74 The Habré case discussed above may be one such example. See supra, n. 61. However, the underlying holding by the Chambre d’accusation of the Dakar Court of Appeal, on the applicability of immunity ratione materiae to the international crimes at issue, was incorrectly based on the icj’s 2002 Arrest Warrant decision, which concerned the applicability of immunity ratione personae in the case of an incumbent high State official, and not the applicability of immunity ratione materiae to international crimes perpetrated by a former official. Therefore, the decision of the Dakar Court of Appeal does not provide strong support for the contrary position. See Hissène Habré Request, Court of Appeal of Dakar (Senegal), Judgment of 25 November 2005, para. 5, reproduced in Third Report on Peremptory Norms of General International Law (Jus Cogens) (Dire Tladi, Special Rapporteur), 53 n. 336, U.N. Doc. a/​c n.4/​714 (Feb. 12, 2018) (“Considérant que Hissène Habré doit alors bénéficier de cette immunité de juridiction qui, loin d’être une cause d’exonération de responsabilités pénales, revêt simplement un caractère procédural au sens de l’arrêt Yéro Abdoulaye Ndombasi du 14/​02/​2002 rendu par la Cour Internationale de Justice dans le litige opposant le Royaume de Belgique à la République démocratique

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There are several rationales for the unavailability of immunity ratione materiae to State officials from foreign criminal jurisdiction in relation to international crimes. The ilc identified two such explanations with support in p ­ ractice in its commentary to Draft Article 7 of the Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction. The first indicates that domestic courts “do not regard [international crimes] as an act performed in an official capacity or a characteristic function of the State.”75 Domestic courts, as illustrated by the cases referred to above, often account for the unavailability of immunity ratione materiae in such terms.76 This explanation is also consistent with regarding international crimes as ultra vires conduct in the law of State responsibility, to which immunity ratione materiae does not apply.77 The second explanation provides that, “although crimes under international law may constitute such an act or function, such crimes (by virtue of their gravity or because they contravene peremptory norms) may not give rise to recognition of the perpetrator’s immunity from criminal jurisdiction.”78 This second explanation is not inconsistent with the first, however it may suggest an exception to immunity ratione materiae rather than its inapplicability. Each of these explanations may apply also to the unavailability of immunity ratione materiae to State officials for international crimes vis-​à-​vis the jurisdiction of international courts and tribunals.79 A third explanation sometimes raised in commentary is that universal jurisdiction over international crimes is sufficient to displace immunity ratione materiae,80 however because jurisdiction does not imply absence of immunity, this approach raises conceptual difficulties.81 Theories accounting for the inapplicability of immunity ratione

75 76 77 78 79 80 81

de Congo.”). See also Questions relating to the Obligation to Prosecute or Extradite (2012), para. 22. Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 183 (2017) (Text of the draft article[s]‌, with commentary thereto, provisionally adopted by the Commission at its sixty-​ninth session, Article 7, Commentary, para. 11). Weatherall (2015), op. cit. 1182–​1199. See discussion supra, Chapter 7.a.iii (Ultra Vires Conduct). Report of the International Law Commission, Sixty-​Ninth Session, U.N. Doc. A/​72/​10, at 183 (2017) (Text of the draft article[s]‌, with commentary thereto, provisionally adopted by the Commission at its sixty-​ninth session, Article 7, Commentary, para. 11). See discussion supra, Chapter 12.a.ii.1 (International Court and Tribunals). Akande (2004), op. cit. 415. Accord. Pinochet (1999), 661 (Phillips, L.) (“Once extra-​territorial jurisdiction is established, it makes no sense to exclude from it acts done in an official capacity.”). Arrest Warrant (2002), para. 59. See also Anthony J. Colangelo, Jurisdiction, Immunity, Legality, and Jus Cogens, 14(1) Chicago Journal of International Law 53, 81 (2013) (“This sort of heaping implication upon implication strains the international lawyer’s fidelity to discerning international law from actual state practice and opinio juris.”).

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materiae in relation to crimes under international law are discussed from the perspective of other secondary rules in Chapter 8.82 Inviolability iii The privilege of inviolability is closely associated with immunity ratione personae under international law. Inviolability refers to an “absolute physical ­privilege” that operates to preclude the authorities of a receiving State from arresting, or otherwise detaining, the beneficiary of inviolability absent the consent of their sending State.83 Inviolability therefore limits a State’s enforcement jurisdiction.84 Inviolability is generally coextensive with immunity ratione personae, resulting in a tendency to blur the two concepts or otherwise view inviolability to be interchangeable with immunity.85 However inviolability, as a physical privilege from interference in a receiving State, is functionally distinguishable from procedural restrictions on the exercise of jurisdiction to adjudicate or prescribe by the courts of a receiving State.86 Practice illustrates that immunity and inviolability are rules that operate autonomously, meaning that the latter is not contingent upon the availability of the former.87 The ilc Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction considers various aspects of this distinction with respect to customary international law applicable to high State officials.88 82 83 84 85

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See discussion supra, Chapter 8.e (Attribution to the State and Individual Immunity Ratione Materiae). Joanne Foakes, The Position of Heads of State and Senior Officials in International Law 76–​80 (Oxford: oup 2014). See, e.g., Restatement (Fourth) of Foreign Relations Law § 401 (2018) (Categories of Jurisdiction); Jurisdictional Immunities of the State (2012), para. 113. See supra, Chapter 11, n. 5. See, e.g., Ramona Pedretti, Immunity of Heads of State and State Officials for International Crimes 27 (Leiden: Brill Nijhoff 2014) (describing immunity ratione personae from foreign criminal jurisdiction as “often understood as comprising inviolability.”); O’Keefe, op. cit. para. 10.40 (referring to immunity ratione personae “and its concomitant inviolability.”). Memorandum by the Secretariat, Immunity of State officials from foreign criminal jurisdiction, para. 15, U.N. Doc. a/​c n.4/​596 (Mar. 31, 2008); O’Keefe, op. cit. para. 10.11; Arrest Warrant (2002), Diss. Op. Van den Wyngaert, para. 75 (citing J. Brown, “Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations,” 37 iclq, 1988, p. 53) (“in the case of a diplomat, the issuance of a charge or summons is probably contrary to the diplomat’s immunity, whereas its execution would be likely to infringe the agent’s inviolability.” (emphasis in original)). Thomas Weatherall, Inviolability not Immunity, 17(1) jicj 45, 47–​53 (2019). Sixth Report on Immunity of State Officials (Concepción Escobar Hernández, Special Rapporteur), paras. 69–​79.

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The icj has had occasion to consider the question of inviolability with respect to domestic legal process in several cases. Arrest Warrant and Certain Criminal Proceedings in France concerned whether issuance and execution of domestic legal process, namely an arrest warrant and witness summonses, were consistent with customary international law obligations regarding inviolability. In its Arrest Warrant decision, the icj concluded that Belgium had breached its obligations to respect the immunity and inviolability of the incumbent Minister of Foreign Affairs of the Congo by issuing and circulating a warrant for his arrest.89 By contrast, in its Certain Criminal Proceedings in France decision, the icj declined to issue provisional measures in proceedings instituted by Congo seeking annulment of investigation and prosecution measures taken by French judicial authorities with respect to incumbent high State officials of the Congo, including its head of State, concerning crimes against humanity and torture.90 At least implicit in the court’s decision not to issue provisional measures is that the request for evidence from the incumbent president of the Congo while he was on a State visit to France did not “irreparably prejudice” Congo’s rights with respect to the inviolability of its head of State.91 The icj reached a similar conclusion in its Certain Questions of Mutual Assistance in Criminal Matters decision, which concerned summonses addressed to the president of Djibouti while on official visits to France in May 2005 and February 2007, finding no violation of the official’s immunity and inviolability.92 Although the icj did not expressly articulate a correlation between immunity and inviolability—​or otherwise indicate that the latter derives from the former—​the icj’s assessment of the consistency of domestic legal process with the inviolability of an incumbent high State official followed its determination of the conformity of such process with immunity ratione personae.93 Whatever correlation may exist between inviolability and immunity ratione personae in the context of domestic legal process, with respect to international legal process (e.g., arrest warrants issued by international courts and tribunals), the assessment of inviolability is complicated by the fact that immunity ratione personae is not automatically available before international courts and

89 90 91 92 93

See, e.g., Arrest Warrant (2002) paras. 70–​71; id., Diss. Op. Van den Wyngaert, para. 75. Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure Order of 17 June 2003, i.c.j. Reports 2003, p. 102. Id. para. 35 (Because Congo discontinued the proceedings in 2010, however, it is difficult to draw any definitive conclusion from the court’s decision). Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, p. 177, paras. 171, 179–​80. Cf. Weatherall (2019), op. cit. 53–​55.

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tribunals.94 Indictments by international courts and tribunals, and issuance of warrants for the arrest, of Slobodan Milošević,95 Charles Taylor,96 Omar Al-​ Bashir,97 Moammar Qaddafi,98 and Laurent Gbagbo99 are illustrative in this regard.100 This practice suggests that it is within the competence of international courts and tribunals to indict, and circulate warrants for the arrest of, high State officials generally entitled to immunity ratione personae from foreign domestic jurisdiction.101 However, the execution of process, such as an arrest warrant, issued by an international court or tribunal necessarily depends upon the enforcement jurisdiction of States.102 In such cases, whether or not a State may lawfully execute such process must be reconciled with the privilege of inviolability ordinarily afforded to high State officials. In its decision concerning execution of arrest warrants for Omar Al-​Bashir by Jordan, the icc Appeals Chamber found that customary international law would not have precluded his arrest and surrender by domestic authorities pursuant to such request issued by the court.103 The court relied upon Al-​Bashir’s lack of immunity before the icc as a basis for this determination, while invoking a host of other countervailing international legal obligations in support of its conclusion.104 While there is a range 94 See discussion supra, Chapter 12.a.i.2 (Domestic Courts). 95 Milošević et al., it-​99-​37, Indictment (May 22, 1999); Milošević et al., it-​99-​37, Decision on Review of Indictment and Application for Consequential Orders, para. 38 (May 24, 1999). 96 Taylor, scsl-​03-​01-​i , Warrant of Arrest and Order for Transfer and Detention (Mar. 7, 2003); see Taylor, scsl-​03-​01-​t, Judgement, para. 6994 (May 18, 2012). 97 Al Bashir, icc-​02/​05-​01/​09, Warrant of Arrest for Oman Hassan Ahmad Al Bashir (Mar. 4, 2009); Al Bashir, icc-​02/​05-​01/​09, Second Warrant of Arrest for Oman Hassan Ahmad Al Bashir (July 12, 2010). 98 Gaddafi et al., icc-​01/​11-​01/​11, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-​Islam Gaddafi and Abdullah Al Senussi,” para. 4 (June 27, 2011). 99 Gbagbo, icc-​02/​11-​01/​11, Warrant of Arrest for Laurent Koudou Gbagbo (Nov. 23, 2011). 100 For a discussion of these proceedings, see Weatherall (2019), op. cit. 55–​62. 101 See discussion supra, Chapter 12.a.i.2 (Domestic Courts). 102 See, e.g., Antonio Cassese, Reflections on International Criminal Justice, 61(1) The Modern Law Review 1, 9–​10 (1998) (“International Tribunals … do have the power to issue arrest warrants and subpoenas, but cannot enforce the acts resulting from the exercise of such powers. … International Tribunals, therefore, must perforce turn to the sovereign States for the execution of their orders and warrants. … If States refuse instead to implement those order or to execute those warrants, International Tribunals turn out to be utterly impotent.”). 103 Al Bashir, icc-​02/​05-​01/​09, Judgement in the Jordan Referral re Al-​Bashir Appeal, para. 117 (May 6, 2019). 104 Cf. Thomas Weatherall, Introductory Note to Prosecutor v. Al-​Bashir, Judgment in the Jordan Referral Re Al-​Bashir Appeal (Int’l Crim. Ct.), 58(6) ilm 1177–​1180 (2019).

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of possible approaches to reconciling the execution of international process with the obligations of receiving States to respect the inviolability of high State officials, these approaches vary in terms of applicability and persuasiveness and will likely be weighed by courts seized with the issue on the facts of a given case in which such exceptional circumstances arise.105 b

State Immunity under International Law

The jurisdictional immunity of the State refers to the principle that one State is not subject to the jurisdiction of another State.106 State immunity is conceived as a right and “corresponding obligation on the part of other States to respect and give effect to that immunity.”107 The jurisdictional immunity of the State before foreign courts is an element of sovereign immunity based in customary international law.108 The principle originated from considerations of comity,109 and embodies the maxim par in parem non habet imperium (between equals no power).110 State immunity consists of both ratione personae and ratione materiae aspects,111 as illustrated by the distinct ways in which sovereign immunity projects upon certain categories of officials and conduct.112 State immunity has evolved from an “absolute” theory to what is characterized as a “restrictive” theory, according to which immunity attaches only to sovereign acts of the

1 05 Cf. Weatherall (2019), op. cit. 63–​75. 106 The jurisdiction of an international court or tribunal over a State is contingent upon its consent: see discussion supra, Chapter 11.b (Jurisdiction over States under International Law). As a practical matter, therefore, the question of State immunity before international courts and tribunals does not arise. This section therefore discusses only State immunity before domestic courts. 107 Jurisdictional Immunities of the State (2012), para. 56. 108 Id. paras. 53–​58, 107. See also United Nations Convention on Jurisdictional Immunities of States and Their Property, Preamble, unga Resolution 59/​38, U.N. Doc. A/​Res/​59/​38 (Dec. 2, 2004); Report of the Sixth Committee, U.N. Doc. A/​59/​508 (Nov. 30, 2004) (annexing the text) (the Convention has not entered into force). 109 Jones (2014), para. 188; Hilton v. Guyot, 159 U.S. 113, 163–​164 (1895). 110 Jurisdictional Immunities of the State (2012), para. 57; Schooner Exchange v. McFaddon, 11 U.S. 116, 134 (1812); Sinclair, op. cit. 197–​199. 111 See Carlo de Stefano, Attribution in International Law and Arbitration 20 (Oxford: oup 2020) (citing Gerald G Fitzmaurice, State Immunity from Proceedings in Foreign Courts, 14 British Year Book of International Law 101, 121 (1933)). 112 See discussion supra, Chapter 12.a (Immunity of Individuals under International Law).

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State (acte jure imperii) to the exclusion of non-​sovereign conduct akin to that of a private individual (acte jure gestionis).113 The secondary rules of sovereign immunity are functionally related to the secondary rules of attribution.114 It has been observed that “the law of State immunity and the international rules of attribution concur as to the operation to bridge the conduct of State organs and instrumentalities to the sovereign.”115 To be sure, the two are separate concepts,116 with attribution operating to allocate conduct to subjects of international law for purposes of responsibility (principally from the individual to the State) and immunity serving to preclude the exercise of jurisdiction over subjects of international law (including by projection from the State to the individual). But the two categories of secondary rules can be seen to operate in tandem to identify whether conduct may be regarded as an act of the State and, if so, whether such conduct attracts sovereign immunity; and, in turn, whether officials also benefit from that immunity. Dissociation of the two concepts obscures this functional relationship and forecloses interrogation of the complexities that arise where international crimes are at issue.117 The jurisdictional immunity of the State from domestic proceedings for acta jure imperii applies even where the underlying proceedings involve conduct in violation of rules belonging to jus cogens amounting to international crimes. The icj ruled on this question in its 2012 Jurisdictional Immunities of the State decision, where it found that, “even on the assumption that the [domestic] proceedings … involved violations of jus cogens rules, the applicability of the customary international law on State immunity was not affected.”118 As 113 See, e.g., Jurisdictional Immunities of the State (2012), paras. 59–​61. Cf. Hazel Fox and Philippa Webb, The Law of State Immunity 25–​48 (Oxford: 3d ed. oup 2013) (also discussing the prospect of a “third model” of State immunity as limited by operation of the concepts of jus cogens, obligations erga omnes, and universal jurisdiction). See discussion supra, Chapter 4.c.ii (Acta Jure Imperii). 114 See de Stefano, op. cit. 17 (“Sovereign immunity and attribution are different legal aspects of the same sociopolitical requirement to refer certain conduct to the person of the State as actor in a dimension of internationality.”). 115 de Stefano, op. cit. 19 (emphasis omitted). 116 Arrest Warrant (2002), para. 60 (“Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.”). 117 Cf. Hazel Fox, Imputability and Immunity as Separate Concepts: The Removal of Immunity from Civil Proceedings Relating to the Commission of an International Crime, in Kaiyan Homi Kaikobad and Michael Bohlander [Eds.], International Law and Power: Perspectives on Legal Order and Justice 165–​178 (Leiden: Brill Nijhoff 2009). 118 Jurisdictional Immunities of the State (2012), para. 97.

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discussed in Chapter 6, the icj reasoned that, where international criminal conduct is attributable to the State, those acts “clearly constituted acta jure imperii,” notwithstanding that they were unlawful.119 As a result, State immunity is presumed to apply to such conduct and, as a procedural rule, operates to bar jurisdiction over States for the violation of a substantive rule, even where that rule belongs to jus cogens.120 This decision by the icj effectively halted practice by domestic courts, notably in Italy,121 and Greece,122 of recognizing an exception to State immunity in civil proceedings arising from international crimes, as jus cogens violations, during World War ii attributed to Germany.123 By contrast, domestic courts in the United States,124 United Kingdom,125 Canada,126 Greece,127 Slovenia,128 Poland,129 and 119 Jurisdictional Immunities of the State (2012), para. 60. See discussion supra, Chapter 4.c.ii (Acta Jure Imperii). 120 Jurisdictional Immunities of the State (2012), paras. 82, 92–​97. 121 Federal Republic of Germany v. Prefecture of Voiotia, Corte di cassazione (Italy), No. 11163/​ 2011 (Jan. 12, 2011), translated in 150 ilr 706 (2011); Germany v. Mantelli and ors, Corte di cassazione (Italy), No. 14201/​2008 (May 29, 2008); Ferrini v. Germany, Corte di cassazione (Italy), No. 5044/​2004, translated in 128 ilr 658 (Mar. 11, 2004); Germany v. Milde, Corte di cassazione (Italy), No. 1072/​2009 (Jan. 13, 2009). 122 Prefecture of Voiotia v. Federal Republic of Germany, Areios Pagos [Supreme Court] (Greece), No. 11/​2000 (May 4, 2000), 129 ilr 513 (2000) (Distomo Massacre Case); but see Margellos v. Federal Republic of Germany, Anotato Eidiko Dikastirio [Special Supreme Court] (Greece), No. 6/​2002 (Sept. 17, 2002), translated in 129 ilr 525 (2002) (foreign State continued to enjoy sovereign immunity irrespective of jus cogens violations at issue). 123 Legge 14 January 2013, n. 5/​2013 (Italy) (requiring denial of jurisdiction where the icj, “in a judgment settling a dispute in which Italy is a party, excluded the possibility of subjecting a specific conduct of another State to civil jurisdiction”). See, e.g., Frascà v. Germany and Giachini (guardian of Priebke) and Italy (joining), Corte di cassazione (Italy), No. 4284/​ 2013 (Feb. 21, 2013); Military Prosecutor v. Albers and ors and Germany (joining), Corte di cassazione (Italy), No. 32139/​2012 (Aug. 9, 2012). 124 Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1154–​55 (7th Cir. 2001); Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 245 (2d Cir. 1996); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718–​19 (9th Cir. 1992). 125 Jones v. Ministry of the Interior of Saudi Arabia and Lieutenant Colonel Abdul Aziz, House of Lords (United Kingdom), [2006] ukhl 26, [2007] 1 All er 113 (June 14, 2006). 126 Bouzari v. Islamic Republic of Iran, Court of Appeal for Ontario (Canada), 243 d.l.r. 4th 406, paras. 86–​95 (June 30, 2004), reprinted in 128 ilr 586 (2004). 127 Margellos v. Federal Republic of Germany, Anotato Eidiko Dikastirio [Special Supreme Court] (Greece), No. 6/​2002, paras. 13–​15 (Sept. 17, 2002), translated in 129 ilr 525 (2002). 128 A.A. v. Germany, Ustavno sodišče [Constitutional Court] (Slovenia), Up-​13/​99-​24, paras. 13–​14 (Mar. 8, 2001). 129 Natoniewski v. Germany, Supreme Court (Poland), No. iv csk 465/​09 (Oct. 29, 2010), 30 Polish Yearbook of International Law 299 (2010).

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France130 had recognized the applicability of State immunity in civil proceeding concerning jus cogens violations. The ECtHR has also affirmed the availability of State immunity in domestic civil litigation for jus cogens violations.131 To the extent that this jurisprudence reflects customary international law, it suggests that the theory of normative hierarchy, according to which primary rules belonging to jus cogens transcend other rules of international law,132 does not result in an exception to State immunity that would permit domestic courts to exercise jurisdiction where breach of such a primary rule is at issue. c

Corresponding Divergence in Rules of Immunity

A deviation closely related to the operation of secondary rules of jurisdiction is observed in the operation of secondary rules governing immunity of States and individuals in relation to conduct in breach of primary rules associated with international crimes. As discussed in detail above,133 immunity ratione materiae refers to the immunity enjoyed by organs of the State for acts performed in their official capacity which the “State is entitled to claim … [as acts] attributed to the State, so that the individual organ may not be held accountable for those acts or transactions.”134 A substantial body of practice indicates that immunity ratione materiae is unavailable to State organs before international and domestic courts for crimes under international law (i.e., violations of primary rules belonging to jus cogens). By contrast, the jurisdictional immunity of the State in domestic proceedings for acta jure imperii applies even where the proceedings involve the violation of those same primary rules.135 Reconciling this divergence, and harmonizing the secondary rules governing the immunities of individuals and States, begins by recalling that sovereign immunity consists

1 30 Bucheron v. Germany, Cour de cassation (France), No. 02-​45961 (Dec. 16, 2003). 131 Jones (2014), paras. 210–​215; Kalogeropoulou v. Greece and Germany, ECtHR (First Section), No. 59021/​00, Decision (Dec. 12, 2002), 129 ilr 537 (2002); Al-​Adsani v. United Kingdom, ECtHR (Grand Chamber), No. 35763/​97, Judgment, para. 61 (Nov. 21, 2001). 132 Cf. Alexander Orakhelashvili, Peremptory Norms in International Law 344 (Oxford: oup 2006); Alexander Orakhelashvili, State Immunity and Hierarchy of Norms: Why the House of Lords got it Wrong, 18(5) ejil 955, 966 (2007). 133 See discussion supra, Chapter 12.a.ii (Immunity Ratione Materiae). 134 Blaškić (1997), para. 41. See Fox and Webb, op. cit. 364 (“The doctrine of the imputability of the acts of the individual to the State … in classical law … imputes the act solely to the state, who alone is responsible for its consequence. Accordingly, any act performed by the individual as an act of the State enjoys the immunity which the State enjoys.”). 135 Jurisdictional Immunities of the State (2012), para. 97.

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of both ratione personae and ratione materiae elements. The availability of State immunity in cases concerning international crimes is consistent with the divergence in jurisprudence between individual immunities (immunity ratione personae and immunity ratione materiae) in proceedings concerning international crimes.136 The application of State immunity is based primarily on the personal jurisdiction aspect of sovereign immunity, which shields one State from the jurisdiction of another. In Jurisdictional Immunities of the State, the icj focused on this procedural character of State immunity as foreclosing any relevance of the primary rule at issue to the question of the applicability of State immunity. This aspect of State immunity corresponds to the immunity ratione personae enjoyed by high State officials before foreign domestic courts.137 Customary international law currently admits no exception to the ratione personae element of sovereign immunity as it applies to high State officials, even where international crimes (i.e., violations of primary rules belonging to jus cogens) are at issue.138 The consent of the State is therefore required to waive the ratione personae element of sovereign immunity in order to establish foreign domestic jurisdiction over its beneficiary.139 This rule is presently unaffected by the subject matter of a proceeding. By operation of this ratione personae element of State immunity, “there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite.”140 In sum, the applicability of State immunity and the immunity ratione personae of high State officials before foreign domestic courts, even in proceedings concerning

136 For a detailed discussion of this point, see Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46(4) Georgetown Journal of International Law 1151–​1212 (2015). 137 See discussion supra, Chapter 12.a.i.2 (Domestic Courts). 138 Regarding high State officials entitled to immunity ratione personae, some international courts have concluded that this rule is applicable to domestic legal proceedings but does not extend to proceedings before international courts. See Al Bashir, icc-​02/​05-​01/​09, Judgment in the Jordan Referral re Al-​Bashir Appeal, para. 113 (May 6, 2019); Taylor, scsl-​ 03-​01-​i -​059, Decision on Immunity from Jurisdiction, para. 52 (May 31, 2004). See discussion supra, Chapter 12.a.i (Immunity Ratione Personae). 139 This is consistent also with jurisdiction over States, however this is not a question of immunity per se: see discussion supra, Chapter 11.b (Jurisdiction over States under International Law). Similarly, the jurisdiction of international courts and tribunals over high State officials may not implicate immunity ratione personae of high State officials in the same way: see discussion supra, Chapter 12.a.i.1 (International Courts and Tribunals). 140 Hazel Fox, The Law of State Immunity 525 (Oxford: 2d ed. oup 2008); But see Hazel Fox and Philippa Webb, The Law of State Immunity 41 n. 57 (Oxford: 3d ed. oup 2013). Cf. Weatherall (2015), op. cit. 1207–​1210.

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international crimes, can be seen to flow from the same ratione personae element of sovereign immunity that disables personal jurisdiction in relation to its beneficiary. Although analysis of the ratione materiae aspect of sovereign immunity may reach a different result,141 this distinction is without difference to the applicability of State immunity because of the conclusion immediately above. Immunity ratione materiae under customary international law is generally accepted to be unavailable with respect to international crimes before both international and domestic courts and tribunals.142 While there are several possible rationales for this exclusion, the upshot is that sovereign immunity does not attach to conduct that constitutes a crime under international law,143 notwithstanding the attributability of such conduct to the State.144 Put differently, where conduct is attributable upward to the State as an act of the State, ordinarily sovereign immunity projects downward to that conduct in the form of immunity ratione materiae, reinforcing the appropriate subject of responsibility for such conduct to be the State rather than the individual. However, where international crimes are at issue, there is no such projection of sovereign immunity from the State to shield such conduct from the subject-​matter jurisdiction of a court. But, even if the ratione materiae element of sovereign immunity is not applicable to international crimes, because State immunity consists of both ratione personae and ratione materiae elements, and because the ratione personae element of sovereign immunity applies to the State regardless of the subject matter of acta jure imperii at issue, the jurisdictional immunity of the State remains applicable in matters concerning international crimes. This conclusion accounts for divergence within the secondary rules of immunity where crimes under international law are at issue, such that immunity ratione materiae is not available to individuals with respect to such conduct while State immunity remains in place. It is well established that “jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.”145 While immunity and jurisdiction are distinct, in practice, their secondary rules are nevertheless interrelated and mutually reinforcing. This interrelation is borne out by the

1 41 See discussion supra, Chapter 12.a.ii (Immunity Ratione Materiae). 142 See discussion supra, Chapter 8.e (Attribution to the State and Individual Immunity Ratione Materiae). 143 Id. 144 See discussion supra, Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). 145 Arrest Warrant (2002), para. 59.

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operation of secondary rules of immunity in relation to crimes under international law and their concurrence with the operation of secondary rules of jurisdiction discussed above.146 It is generally accepted that courts and tribunals may exercise jurisdiction over individuals alleged to have committed crimes under international law (including, for domestic courts, on the basis of the principle of universality), and that immunity ratione materiae is not applicable to immobilize jurisdiction where such conduct is at issue. By contrast, it is also generally accepted that courts may not exercise jurisdiction over States in the absence of their consent, even where attribution of a crime under international law is at issue, and that State immunity is applicable to immobilize jurisdiction even where such conduct is at issue. The secondary rules of jurisdiction and immunity therefore largely concur in their operation with respect to primary rules associated with crimes under international law in relation to each the subject of international law. Under present international law, the horizon of divergence between these bodies of largely concurring secondary rules is the immunity ratione personae enjoyed by high State officials.147 Immunity ratione personae is a status-​based immunity applicable to certain representatives of the State who themselves effectively embody the State. Practice indicates that the principle of accountability and community interest supporting acceptance of universal jurisdiction over individuals do not harmonize with the principles of State consent and sovereign equality that constrain the exercise of jurisdiction over States. This discordance is reflected in the gradual, and contested, erosion of immunity ratione personae of high State officials before international courts and tribunals.148 Current practice does not indicate that this retreat of immunity ratione personae extends to the jurisdiction of domestic courts,149 or to the jurisdictional immunity enjoyed by States.150 However this is a space to monitor as practice continues to evolve in the operation of these secondary rules in the context of duality of responsibility. 1 46 See discussion supra, Chapter 11.c (Divergence in Rules of Jurisdiction). 147 See discussion supra, Chapter 12.a.i (Immunity Ratione Personae). 148 See discussion supra, Chapter 12.a.i.1 (International Courts and Tribunals). Cf. Weatherall (2015), op. cit. 1174–​1176. 149 See discussion supra, Chapter 12.a.i.2 (Domestic Courts). 150 See discussion supra, Chapter 12.b (State Immunity under International Law).

pa rt 5 Duality of Responsibility in International Law

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The Legal Framework of Duality of Responsibility Duality of responsibility in international law arises in relation to a narrow category of primary rules directed at individual and State conduct, and results from the operation of secondary rules governing responsibility. In particular, duality of responsibility refers to the way in which State responsibility under international law for internationally wrongful acts may arise in relation to individual responsibility for crimes under international law. The primary rules directed toward individual and State conduct, and which may give rise concurrently to both individual and State responsibility under international law, belong to the category of jus cogens.1 International criminal responsibility may be seen to arise as the sanction for an individual for violation of such a rule. Primary rules belonging to this category also give rise to obligations for States, such that individual conduct attributable to the State in breach of such a rule (i.e., a crime defined by international law) may also give rise to State responsibility. A related category of primary rules directed toward the State consists of obligations erga omnes, which constitute obligations owed by each State to the international community of States as a whole under customary international law or, in the case of erga omnes partes, to all parties to a multilateral international agreement.2 Obligations erga omnes are closely related to jus cogens and it has been observed that obligations erga omnes are “virtually coextensive” with norms belonging to jus cogens.3 The performance of obligations erga omnes in this context is frequently articulated to constitute positive duties to prevent and punish international crimes. In this sense, instruments defining crimes under international law often establish associated primary rules concerning prevention and punishment of such conduct.

1 Chapter 2.a.i (Individual-​Directed Rules). 2 Chapter 2.a.ii (State-​Directed Rules). 3 Third Report on State Responsibility (James Crawford, Special Rapporteur), at 34, para. 106(a); Fourth Report on State Responsibility (James Crawford, Special Rapporteur), at 13, para. 49 (“even if the two are not different aspects of the one underlying idea, the two substantially overlap”). But see supra, Chapter 2, n. 35 (discussing self-​determination).

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Individual Responsibility

Duality of responsibility under international law is predicated upon the legal personality of the individual and, in particular, the capacity of the individual as a subject of primary rules, as well as responsibility for their breach, under international law.4 Recognition of the individual as a legal subject of international law represents an inflection point in a system defined principally by the State as the sole subject of international law. By the end of the twentieth century, international law clearly admitted the individual as subject to certain primary rules under international law, the violation of which give rise to individual criminal responsibility. Importantly, the responsibility borne by the individual for crimes under international law is not contemplated to be linked to, or otherwise derivative of, the international responsibility of the State for breach of its international obligations. International criminal law makes regular reference to general principles of law, within the meaning of Article 38(1)(c) of the icj Statute, derived from domestic criminal law.5 One such general principle is the structure of crimes, such that international crimes consist of objective elements (actus reas) and subjective elements (mens rea). The objective elements of crime, actus reas, refer to the “guilty act” that constitutes the physical aspect of a crime.6 The objective, or material, elements of crime are commonly understood to refer to conduct, attendant circumstance, or a result of conduct. The subjective elements of crime, mens rea, refer to “guilty mind” or criminal intent, and constitute the state of mind necessary to convict an individual of a particular crime.7 There are generally four aspects of fault that define a culpable state of mind for purposes of the subjective element, namely, where an individual acted purposely, knowingly, recklessly, or negligently. Only when the objective elements of the crime are combined with its subjective elements can the individual be rendered criminally liable.8 International law admits various modes of attribution of individual responsibility for crimes under international law.9 These secondary rules inform an assessment of whether an individual has associated themselves with an international crime in a manner sufficient to trigger their criminal responsibility 4 5 6 7 8 9

Chapter 1.b (The Individual as a Subject of International Law). Chapter 3.a (Elements of Individual Criminal Responsibility). Chapter 3.a.i (The Objective Element). Chapter 3.a.ii (The Subjective Element). Chapter 3.b (An Element Approach to Crimes). Chapter 6 (Rules of Attribution in International Criminal Law).

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from the perspective of international law. Like the elements of crimes themselves, the secondary rules of attribution in international criminal law contain both objective and subjective elements.10 The secondary rules of attribution look not only to the relevant actus reas of an individual, but also, to whether such conduct was carried out with the requisite mens rea to engage that individual’s liability. The modes of attribution in international criminal law reflect an aspect of fault through which an individual associates themselves with criminal conduct in such a way as to give rise to criminal responsibility. More specifically, the varying objective and subjective elements in modes of attribution in international criminal law contribute to a differentiated model of participation in crime that captures the moral culpability of actors. The available modes of attribution in international criminal law establish the scope of criminal liability that may arise in connection with a given international crime. Modes of attribution may be generally divided into four categories: commission, encouragement, assistance, and superior responsibility.11 The most basic category of attribution of criminal responsibility under international law is commission.12 Three forms of commission are distinguishable in practice: direct perpetration, indirect perpetration (i.e., through another person), and joint criminal enterprise (jce). Direct perpetration attributes criminal responsibility to an individual who fulfills the objective and subjective elements of an offence.13 Indirect perpetration is a mode of liability that attributes responsibility for the commission of a crime by an accused through another individual.14 The third form of attribution of responsibility under international criminal law by commission is jce, which itself consists of three distinct forms based variously on conduct associated with a common plan to perpetrate criminal conduct.15 Encouragement is a category of accessory modes of attribution of criminal responsibility under international law.16 The forms of liability generally included in this category are planning, ordering, and instigating. Planning is a mode of liability that arises where an individual performs certain conduct pursuant to the commission of a crime with a degree of awareness that

10 11 12 13 14 15 16

Chapter 6.a (Modes of Attribution). Id. (though superior responsibility is often regarded as a hybrid or sui generis form of responsibility). Chapter 6.a.i (Commission). Chapter 6.a.i.1 (Direct Perpetration). Chapter 6.a.i.2 (Indirect Perpetration). Chapter 6.a.i.3 (Joint Criminal Enterprise). Chapter 6.a.ii (Encouragement).

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indicates acceptance of the crime.17 Ordering is a mode of liability that arises where an individual in a position of authority orders the commission of a crime.18 Finally, instigating is a mode of liability that arises where an individual prompts another individual to commit a crime with a degree of awareness that indicates acceptance of the commission of the crime.19 Assistance is another category of accessory modes of attribution of criminal responsibility under international law.20 The forms of liability generally included in this category are aiding and abetting, and an associated form of residual accessory liability included in the Rome Statute. Aiding and abetting is a mode of liability that arises where an individual’s acts or omissions render that individual complicit in the commission of a crime by another.21 Assisting in the commission of a crime by a group is a residual form of accessory liability created by Article 25(3)(d) of the Rome Statute.22 Aspects of this form of liability can be viewed in relation to jce in terms of its attribution of liability for crimes committed by groups pursuant to a common plan. Superior responsibility refers to liability for a superior arising in relation to the crimes of their subordinates where the superior has failed to perform their duties as a superior to “exercise control” over their subordinates.23 As such, superior responsibility is regarded as a hybrid or sui generis form of responsibility arising from an omission, which omission can only arise where international law imposes a relevant obligation in the first instance. Finally, international law recognizes modalities of liability associated with inchoate crimes, such that responsibility may arise, under limited circumstances, where an individual takes steps intended to produce a harmful effect, regardless of whether the intended harmful effect is realized.24 Forms of liability generally included in this category are attempt, conspiracy, and incitement. Attempt is a mode of liability that arises where an individual acts with intent to commit a crime but the crime is not completed.25 Conspiracy is a mode of liability that arises where individuals agree to commit a crime, whether or not the contemplated crime is completed.26 Incitement of another individual to 17 18 19 20 21 22 23 24 25 26

Chapter 6.a.ii.1 (Planning). Chapter 6.a.ii.2 (Ordering). Chapter 6.a.ii.3 (Instigating). Chapter 6.a.iii (Assistance). Chapter 6.a.iii.1 (Aiding and Abetting). Chapter 6.a.iii.2 (Assisting in Commission of a Crime by a Group). Chapter 6.a.iv (Superior Responsibility). Chapter 6.a.v (Inchoate Offences). Chapter 6.a.v.1 (Attempt). Chapter 6.a.v.2 (Conspiracy).

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commit a crime is a mode of liability presently admitted under international law only in relation to direct and public incitement to commit genocide.27 For purposes of duality of responsibility in international law, assessing individual responsibility for international crimes is the point of departure for assessing concurrent State responsibility.28 Consequently, identification of the parameters of modes of attribution in international criminal law—​and in particular the expansion of such parameters—​has the potential to reverberate at the level of State responsibility.29 In this regard, questions arise as to whether modes of attribution in international criminal law belong to customary international law and whether general principles of law supply the relevant formal source of such modalities.30 Secondary rules associated with the imposition and avoidance of individual criminal responsibility may be categorized in terms of consequences, defenses, jurisdiction, and immunity. The consequences for an individual convicted of a crime under international law are a function of the purposes of criminal responsibility under international law.31 The purposes of criminal responsibility under international law may to some extent be viewed analogously to the goals of incapacitation, deterrence, retribution, and rehabilitation that animate criminal law at the domestic level, though such analogy is potentially complicated at least in part by the international context of crimes under international law and, in turn, whether the stated goals of domestic criminal law apply with equal force to international crimes. International criminal tribunals have focused on retribution and deterrence as the primary purposes of penalties for international crimes, while also taking rehabilitation into account and identifying other rationales for punishment unique to crimes under international law.32 Punitive consequences for individuals convicted of crimes under international law may also serve broader purposes that receive particular emphasis in the context of international crimes. International law provides that the consequences of individual responsibility for international crimes are penal in nature.33 Where international crimes are prosecuted before a competent

27 28 29 30 31 32 33

Chapter 6.a.v.3 (Incitement). Chapter 6.b.i (Relevance to Attribution in the Law of State Responsibility). Chapter 6.b.ii (Identifying the Parameters of Modes of Attribution). Chapter 6.b.iii (Methodology and Sources of Law). Chapter 9.a (Consequences of Individual Criminal Responsibility). Chapter 9.a.i (Purposes). Chapter 9.a.ii (Penalties).

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international or hybrid court or tribunal, the penalties generally available for conviction are deprivation of liberty and property interests. International law admits a limited category of defenses, or grounds for excluding criminal responsibility.34 The substantive defenses applied in international criminal law rely largely upon general principles of law derived from domestic legal systems. The legal consequence of a successful defense is either acquittal, which precludes an individual’s criminal responsibility, or mitigation, which impacts punishment arising from an individual’s criminal responsibility. Defenses may be characterized as either “failure of proof” defenses or justifications and excuses. Failure of proof defenses relate to the objective and subjective elements of an offence and often operate to vitiate the mental element of a crime.35 If successfully pleaded, a failure of proof defense negates an element of the crime and precludes criminal responsibility. Defenses recognized under international criminal law typically characterized as failure of proof defenses include mental incapacity, intoxication, and error of fact or law. By contrast, defenses characterized as justifications and excuses do not affect whether the elements of a crime are established.36 A justification permits, or admits the rightness of, the impugned conduct and eliminates the criminal character of that conduct. An excuse, while not displacing the wrongness of the impugned conduct, exculpates the responsible actor. Defenses recognized under international criminal law typically characterized as justifications or excuses include self-​defense, duress, and superior orders. The availability and legal effect of a defense under international criminal law may depend at least in part on the crime at issue. In this regard, questions arise regarding whether defenses characterized as justifications and excuses may operate as complete defenses to international crimes that constitute violations of peremptory norms, from which no derogation is permitted. Indicia of the unavailability of justifications and excuses as complete defenses to international crimes arising from jus cogens appear in practice. Both international and domestic courts may exercise jurisdiction over international crimes.37 The scope of the jurisdiction of international courts and tribunals over international crimes is set out in their constitutive instruments. Domestic courts are empowered to exercise prescriptive jurisdiction according to principles—​territoriality, nationality, protective, and passive personality—​ that are well established under international law. In addition, domestic courts 34 35 36 37

Chapter 10.a (Exclusion of Responsibility for Crimes under International Law). Chapter 10.a.i (Failure of Proof). Chapter 10.a.ii (Justification and Excuse). Chapter 11.a (Jurisdiction over Individuals under International Law).

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may exercise jurisdiction on the basis of the principle of universality over individuals in relation to international crimes. Universal criminal jurisdiction arises under customary international law and, analogously, under international agreements. The principle of universality as a basis for adjudicative and prescriptive jurisdiction by States in relation to international crimes has achieved broad recognition. Immunity operates as a procedural bar to jurisdiction and the application of immunity has the effect of immobilizing an otherwise competent jurisdiction.38 Immunity ratione personae refers to the immunity of certain high State officials, such as heads of State, heads of government, and ministers of foreign affairs that applies by virtue of that status.39 There is support for the proposition that immunity ratione personae is unavailable before international courts and tribunals.40 By contrast, immunity ratione personae is generally available to high State officials before foreign domestic courts, including where jurisdiction would be exercised in relation to international crimes.41 Immunity ratione materiae refers to the immunity enjoyed by organs of the State for acts performed in their official capacity.42 By contrast to immunity ratione personae, which is immunity from personal jurisdiction, immunity ratione materiae is immunity from subject-​matter jurisdiction. International courts and tribunals established since the end of the Second World War have declined to recognize immunity ratione materiae as applicable to international crimes.43 There is also widespread support for the proposition that immunity ratione materiae is unavailable before domestic courts for State organs alleged to have committed international crimes.44 The privilege of inviolability is closely associated with immunity ratione personae under international law.45 Inviolability refers to an absolute physical privilege that operates to preclude the authorities of a receiving State from arresting, or otherwise detaining, the beneficiary of inviolability absent the consent of their sending State. Inviolability therefore limits a State’s jurisdiction to enforce. While practice suggests some correlation between inviolability and immunity ratione personae in the context of domestic legal process, with

38 39 40 41 42 43 44 45

Chapter 12.a (Immunity of Individuals under International Law). Chapter 12.a.i (Immunity Ratione Personae). Chapter 12.a.i.1 (International Courts and Tribunals). Chapter 12.a.i.2 (Domestic Courts). Chapter 12.a.ii (Immunity Ratione Materiae). Chapter 12.a.ii.1 (International Courts and Tribunals). Chapter 12.a.ii.2 (Domestic Courts). Chapter 12.a.iii (Inviolability).

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respect to international legal process, the assessment of inviolability is complicated by the fact that immunity ratione personae is not automatically available before international courts and tribunals.

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The responsibility of individuals for crimes under international law is unique to a particular category of primary rules under international law, the violation of which is defined to constitute a crime under international law. That such primary rules give rise to individual criminal responsibility may be viewed as a product of the seriousness with which the international community regards their breach. One salient feature of conduct giving rise to individual criminal responsibility is its often close linkage to the exercise of State authority. It has been observed, in this regard, that “[i]‌t is characteristic of the worst crimes of the period since 1930 that they have been committed within and with the assistance of State structures.”46 Therefore, the responsibility of the State arising in relation to international crimes is a matter of significant practical import. That primary rules, the violation of which are defined as crimes under international law, also give rise to international obligations of States makes possible the availability of State responsibility under international law in relation to such conduct. b

State Responsibility

The capacity for both the State and the individual to incur responsibility under international law in relation to international crimes is the basis for duality of responsibility in international law.47 The imt at Nuremberg famously articulated this principle in 1946 when it observed, “[t]‌hat international law imposes duties and liabilities upon individuals as well as upon States has long been recognized.”48 While precisely how long this principle had been recognized by the end of World War ii might be debated, it was irrefutable when the icj

46

47 48

First Report on State Responsibility (James Crawford, Special Rapporteur), at 22, para. 89. See also Gerhard Werle and Florian Jessberger, Principles of International Criminal Law 44 (Oxford: 3d ed. oup 2014) (“Crimes under international law typically, though not necessarily, presume state participation.”). Chapter 1.c (Duality of Responsibility in International Law). imt Judgment and Sentences (1946), 220.

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restated this principle in 2007 “that that duality of responsibility continues to be a constant feature of international law.”49 Distinct sets of secondary rules respectively govern individual and State responsibility.50 Notwithstanding this distinction, the application of secondary rules of State responsibility entails reference to application of secondary rules of individual responsibility. As a result, while individual and State responsibility are separate legal questions, and distinct secondary rules govern each field of responsibility under international law, in the context of duality of responsibility, the rules of State responsibility are not indifferent to the secondary rules of individual responsibility. Even so, the secondary rules governing State responsibility do not vary based on the primary rules at issue, meaning that the generally applicable secondary rules in the law of State responsibility govern the international responsibility of the State arising in relation to individual conduct amounting to an international crime.51 State responsibility under international law is defined in terms of internationally wrongful acts.52 Customary international law provides that there is an internationally wrongful act of a State when conduct, constituting an act or omission, is attributable to the State under international law and constitutes a breach of an international obligation of the State. The international responsibility of the State for an internationally wrongful act is therefore engaged where these elements of breach and attribution are satisfied. Although these two elements of State responsibility bear at least a superficial resemblance to the objective and subjective elements of crime, the elements of State responsibility do not track neatly onto the elements of crime. The elements of an internationally wrongful act are distinct in both form and function from the elements of a crime under international law. The first element of State responsibility is breach of an international obligation.53 Duality of responsibility refers to situations in which State responsibility for an internationally wrongful act arises either concurrently with or complementary to individual criminal responsibility. This distinction refers not to different forms of State responsibility as such, but rather, to the particular international obligation of the State whose breach gives rise to the international responsibility of the State. State responsibility is thus contemplated in relation to individual responsibility for international crimes on the basis of 49 50 51 52 53

Application of the Genocide Convention (2007), para. 173. Chapter 2.b.i (Distinguishing Secondary Rules of Individual and State Responsibility). Chapter 7.b.i (Secondary Rules of General Applicability). Chapter 4.a (Elements of State Responsibility). Chapter 4 (Internationally Wrongful Acts).

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two categories of primary rules.54 First, to the extent that State responsibility may ensue from attribution of conduct in breach of a primary rule from which individual criminal responsibility arises, such State responsibility is concurrent with individual responsibility for that same conduct. Duality of responsibility in this sense results from the attribution, for purposes of State responsibility, of conduct in breach of a primary rule for which the individual is subject to criminal responsibility under international law. Second, to the extent that the State is subject to obligations in relation to primary rules from which individual criminal responsibility arises, State responsibility may ensue for breaches of such obligations (e.g., through failure to prevent or punish such individual conduct). Duality of responsibility in this sense refers to State responsibility that is complementary to individual responsibility for underlying criminal conduct, resulting from breach of an obligation related to the limited category of primary rules which may give rise to individual criminal responsibility under international law. Primary rules giving rise to State responsibility concurrent with individual criminal responsibility are peremptory norms of general international law.55 Peremptory norms are unique in international law as primary rules which, as norms from which no derogation is permitted, give rise to obligations for both the individual and the State. The prohibitions established by these primary rules under customary international law are binding upon States; these rules are also reflected in multilateral instruments often regarded to reflect customary international law. The conduct prohibited by such a primary rule is also defined to constitute a crime under international law. International criminal responsibility may be seen from this perspective to arise as the sanction for individual conduct in breach of such a primary rule. This close functional relationship between peremptory norms and international crimes accounts for primary rules the breach of which may result in both individual criminal responsibility and the international responsibility of the State (i.e., a crime under international law and an internationally wrongful act). International law recognizes a distinction between two categories of acts of the State—​acta jure imperii and acta jure gestionis.56 Acta jure imperii are acts of the State performed in exercise of its sovereign capacity, while acta jure gestionis are non-​sovereign acts performed in a capacity more characteristic of private conduct (e.g., commercial activity). International criminal conduct attributable to the State is characterized as acta jure imperii, notwithstanding 54 55 56

Chapter 4.b (Two Categories of Primary Rules). Chapter 4.c (Concurrent State Responsibility). Chapter 4.c.ii (Acta Jure Imperii).

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the unlawful character of such conduct. This classification is particularly relevant to the jurisdictional immunity of the State in relation to international crimes as well as how individual conduct constituting an international crime is regarded for purposes of attribution. Although an international crime may be attributed to the State, and regarded as an act of the State for purposes of responsibility, State responsibility for an internationally wrongful act arising from such conduct is not criminal in nature.57 The unstratified character of State responsibility therefore persists even where the obligation breached arises from a peremptory norm and the conduct attributed to the State constitutes an international crime. This distinction reflects the differentiation of responsibility arising concurrently for the individual and the State: the individual is responsible for an international crime while the State is responsible for an internationally wrongful act. State responsibility arising from such breaches is sometimes characterized as “aggravated” State responsibility, in contrast to State responsibility arising from other breaches of obligations under international law.58 However, because this concept appears to be intended to invoke an aspect of State criminality, its usage is necessarily viewed with caution in light of the absence of State criminality in international law. The primary rules giving rise to complementary State responsibility are related to, but distinct from, the primary rules of conduct from which individual criminal responsibility may arise.59 In this regard, obligations erga omnes under customary international law, and obligations erga omnes partes in treaty law, may be identified to include obligations arising from primary rules that are jus cogens in character and whose breach also gives rise to individual criminal responsibility.60 The performance of obligations erga omnes in this context is frequently articulated to constitute positive duties to prevent international crimes and punish their alleged perpetrators. In practice, obligations to prevent and punish international crimes have arisen principally as obligations erga omnes partes in multilateral instruments codifying relevant primary rules. Where State responsibility arises for breach of such an obligation (e.g., through failure to prevent or punish such conduct), duality of responsibility in this sense can be understood as State responsibility that is complementary to individual responsibility for the underlying criminal conduct, arising from breach of an obligation separate but related to a limited category of primary rules of 57 58 59 60

Chapter 4.c.iii (Crimes of States). Chapter 4.c.iv (Aggravated State Responsibility). Chapter 4.d (Complementary State Responsibility). Chapter 4.d.i (Obligations Erga Omnes).

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individual conduct. Unlike concurrent responsibility, in which State and individual responsibility arise in relation to breach of the same primary rule, State responsibility that is complementary to individual responsibility arises from breach of a different primary rule. That State responsibility complementary to individual responsibility arises from different primary rules has practical implications for the relationship between individual and State responsibility in this context.61 This is largely a result of the fact that State responsibility that is complementary to individual criminal responsibility is not predicated upon the attribution of criminal conduct in the same way as State responsibility that is concurrent with individual criminal responsibility, in which the latter arises from breach of the same primary rule. Even so, State responsibility that is complementary to individual criminal responsibility is dependent upon such underlying criminal conduct in ways that distinguish State responsibility that is complementary to individual criminal responsibility from State responsibility that is concurrent with individual criminal responsibility. As an initial matter, a State generally cannot breach an international obligation to prevent or punish an international crime in the absence of conduct amounting to an international crime.62 Put differently, breach of a primary rule giving rise to individual criminal responsibility is generally a prerequisite to breach of an associated primary rule related to the prevention or punishment of such conduct. Practice indicates at least one caveat, which is that the allegation of an international crime appears to be sufficient to engage a State’s obligations related to the investigation and extradition or prosecution of such crime. This stands in contrast to State responsibility that may arise concurrently with individual criminal responsibility, which is dependent upon the attribution of an international crime to the State. This deviation underscores that breach of primary rules that may give rise respectively to State responsibility that is concurrent with, or complementary to, individual criminal responsibility may be triggered by different conduct. And, because these two aspects of State responsibility may be triggered by different conduct, State responsibility arising relative to international crimes in one sense does not presuppose the other. One result of this decoupling of concurrent and complementary State responsibility is that State responsibility may arise for breach of an obligation erga omnes related to a primary rule that gives rise to an international crime,

61 62

Chapter 4.d.ii (Implications of Distinct Primary Rules). Chapter 4.d.ii.1 (International Crime as a Prerequisite).

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even if conduct amounting to an international crime is not attributable to that State.63 This result is possible because State responsibility for breach of an associated primary rule to prevent or punish a crime under international law arises from conduct distinct from that crime itself. Put differently, State responsibility that is complementary to individual criminal responsibility is not contingent upon the attribution of such individual criminal conduct to the State. This differentiation was illustrated in two icj cases concerning obligations erga omnes associated with the prohibitions of genocide and torture, in which breaches of such obligations arose in relation to conduct not attributable to the State.64 From this perspective, the potential scope of State responsibility for breach of an obligation erga omnes related to an international crime may be broader than the scope of State responsibility that may arise from breach of a primary rule that can also give rise to individual criminal responsibility. A second implication of the decoupling of concurrent and complementary State responsibility is the inverse of the first, which is the possibility that State responsibility may not arise for breach of an obligation erga omnes related to an international crime, even if conduct amounting to an international crime is attributable to the State.65 Performance of obligations erga omnes related to an international crime does not affect whether such international crime may be attributed to the State. Because obligations erga omnes are primary rules distinct from the primary rules giving rise to international crimes, it follows that responsibility for breach of the latter category of primary rules is not dispositive as to the breach, or absence of breach, of the former category. As a result, a State may not avoid responsibility for an international crime attributed to it by performance of associated obligations to prevent and punish such conduct. Implicit in the State’s inability to avoid responsibility for an international crime by performing its obligations erga omnes in relation to such crime is that a State may be internationally responsible for individual criminal conduct attributed to it and yet may not be in breach of associated obligations related to international crimes. In the latter circumstance, State responsibility would arise concurrently with individual criminal responsibility without complementary responsibility arising for breach of an associated obligation erga omnes. The second element of State responsibility, attribution, establishes that the breach in question constitutes an act of the State.66 Underlying the concept 63 64 65 66

Chapter 4.d.ii.2 (Attribution of International Crime not a Prerequisite). Cf. Application of the Genocide Convention (2007), para. 471; Questions relating to the Obligation to Prosecute or Extradite (2012), paras. 68–​69. Chapter 4.d.ii.3 (No Mitigation of Concurrent Responsibility for an International Crime). Chapter 7 (Rules of Attribution in the Law of State Responsibility).

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of attribution is the practical reality that any act of the State involves some act or omission by an individual or group. The rules of attribution identify circumstances under which such conduct is properly regarded to be an act of the State. Generally, conduct is only attributable to the State for purposes of its international responsibility where it is performed by an organ of the State or by an agent at the instruction, or under the direction or control, of such organ.67 Most generally, then, for purposes of attribution, the conduct of a State organ is considered an act of the State under international law.68 Where an entity is empowered by the State to exercise governmental authority, it may be regarded as a de facto organ and, where it operates in that capacity, its conduct is attributable to the State.69 An analogous rule of attribution applies where an organ of one State is placed at the disposal of another State to exercise governmental authority of the latter State.70 The conduct of an organ or de facto organ of the State acting ultra vires—​that is, in breach of the rules to which he or she is subject—​is nevertheless attributable to the State.71 The touchstone of the ultra vires rule of attribution is that the organ, person, or entity whose conduct is in question acted with apparent authority such that the conduct is appropriately regarded as an act of the State. This qualifier distinguishes conduct under color of law from purely private conduct, with only the former attributable to the State as ultra vires conduct that may give rise to its international responsibility. There are also less common circumstances under which conduct may be attributable to the State.72 The conduct of a person or entity that is not an organ of the State may be regarded as an act of the State where that person or entity operates at the instruction, or under the direction or control, of the State.73 The touchstone of this rule of attribution is that the conduct in question is sufficiently related to the State to regard such conduct to have been performed in the name of that State. Conduct performed by a person or entity in the absence or default of the official authority of a State may be attributed to that State where such person or entity, though not a State organ, exercised elements of governmental authority.74 While conduct of insurrection movements 67 68 69 70 71 72 73 74

Chapter 7.a (Modes of Attribution). Chapter 7.a.i (State Organs). Chapter 7.a.ii (De Facto State Organs). Id. Chapter 7.a.iii (Ultra Vires Conduct). Chapter 7.a.iv (Other Circumstances in which Conduct may be Attributable to the State). Chapter 7.a.iv.1 (Instruction of the State or under its Direction or Control). Chapter 7.a.iv.2 (Exercise of Governmental Authority in the Absence of Official Authority).

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is generally not attributable to a State, where such movement succeeds to become the new government of a State, or where such movement succeeds in establishing a new State, the conduct of such movement may be attributable to the associated State.75 Finally, conduct not otherwise attributable to a State may be attributed to that State where it acknowledges and adopts that conduct as its own.76 The secondary rules of attribution of general applicability in the law of State responsibility apply notwithstanding the character of the primary rule at issue.77 As a practical matter, however, the way in which secondary rules of attribution are applied appears to vary on the basis of whether breach of a primary rule is established by an action or omission of the State.78 The breach of an obligation through an omission by the State may not give rise to an analysis of attribution in the same way as breach of an obligation established by affirmative actions. Secondary rules associated with the imposition and avoidance of State responsibility may be categorized in terms of consequences, circumstances precluding wrongfulness (i.e., defenses), jurisdiction, and immunity. The consequences for an internationally wrongful act may be divided into two categories: consequences for the responsible State and consequences for States other than the responsible State (i.e., third-​States).79 The primary consequences for a State responsible for an internationally wrongful act are cessation of wrongful conduct and reparation for wrongful conduct.80 Cessation of wrongful conduct is the immediate consequence of State responsibility for an internationally wrongful act.81 The obligation of a State to cease wrongful conduct arises where a wrongful act is of a continuing character and the State remains subject to the obligation breached. Cessation functions to restore the lawful relation of the breaching State to the primary rule at issue. The obligation to make reparation for an internationally wrongful act is the other primary consequence of State responsibility.82 The function of reparation is to eliminate the consequences of the wrongful act and reestablish the situation that would have existed if that act had not been committed. Restitution,

75 76 77 78 79 80 81 82

Chapter 7.a.iv.3 (Insurrection). Chapter 7.a.iv.4 (Conduct Acknowledged and Adopted by the State). Chapter 7.b.i (Secondary Rules of General Applicability). Chapter 7.b.ii (Actions and Omissions). Chapter 9.b (Consequences of an Internationally Wrongful Act). Chapter 9.b.i (Consequences for the Responsible State). Chapter 9.b.i.1 (Cessation). Chapter 9.b.i.2 (Reparation).

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compensation, and satisfaction are the forms of reparation available for an internationally wrongful act. The purpose of restitution is to re-​establish the situation that existed prior to the wrongful act. Restitution is the preferred form of reparation for an internationally wrongful act from the perspective of international law, except where restitution is materially impossible or disproportionate compared to reparation through compensation. Compensation is based on the material damage suffered. A third form of reparation, satisfaction, is an exceptional remedy that is appropriate where reparation cannot be made through restitution or compensation, for example, in cases of non-​ material injury. Where reparation is sought by a third-​State on the basis of the erga omnes character of the primary rule at issue, such reparation is in the interest of the beneficiaries of the obligation breached rather than the State invoking responsibility. International law at present does not appear to give rise to other, specific consequences for the responsible State in cases related to international crimes, where breaches of obligations under peremptory norms are at issue. By contrast, there is support for the proposition that breaches of primary rules associated with international crimes, or obligations erga omnes arising therefrom, give rise to consequences for third-​States.83 Such consequences, which may be viewed in the context of obligations erga omnes related to the prevention and punishment of violations of certain primary rules, have been conceived as an extension of the erga omnes character of the obligations associated with those primary rules. Because consequences for third-​States relate to breaches of primary rules occurring beyond the jurisdiction of States to which such consequences apply, these consequences resemble the scope of the obligations to investigate and extradite or prosecute those allegedly responsible for international crimes, which may similarly relate to breaches of primary rules occurring beyond the jurisdiction of States to which such obligations apply. In both instances, a State may be expected to take certain actions within its competence in relation to breaches of primary rules that occur even beyond its jurisdiction. In the view of the ilc, breaches of obligations arising under peremptory norms only give rise to consequences for third-​States where such breaches meet a threshold of seriousness, i.e., where such breaches involve a gross or systematic failure by the responsible State to fulfill the obligation in question.84 The icj, by contrast, in judgments articulating consequences for third-​States

83 84

Chapter 9.b.ii (Consequences Beyond the Responsible State). Chapter 9.b.ii.1 (Serious Breaches).

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arising from breaches of obligations erga omnes, has based such consequences only on the erga omnes character of the obligations breached, rather than whether such breach satisfied a threshold of seriousness. Whether or not a seriousness criterion finds support in customary international law, it remains that the function of such a criterion would be limited to ascertaining whether breach of an obligation erga omnes gives rise to consequences for States other than the responsible State. The icj has articulated three consequences for third-​States arising from breach of an obligation erga omnes by a responsible State.85 The ilc has identified these same consequences as arising from a serious breach of obligations under peremptory norms. In particular, where a State is responsible for a breach of an obligation erga omnes, one consequence articulated for third-​ States is an obligation not to recognize the lawfulness of a situation resulting from, or maintained by, the breach of that primary rule. A related consequence that has been articulated for third-​States is an obligation not to assist in the maintenance of a situation resulting from, or maintained by, the breach of that primary rule. While the foregoing consequences might be characterized as negative in character, another consequence for third-​States that has been identified where a State is responsible for a breach of an obligation erga omnes is affirmative and calls on third-​States to cooperate to bring an end to such breach. A separate consequence arising from breach of an obligation erga omnes is the capacity of States to which such obligation is owed to invoke the international responsibility of a State in breach of that obligation.86 The common legal interest of States in the performance of obligations erga omnes confers upon those States the entitlement to invoke the international responsibility of a State in breach of such obligations.87 Because all States to which an obligation erga omnes is owed have a common legal interest in its performance, it follows that the invoking State requires no special interest in compliance with such obligation in order to invoke the responsibility of a breaching State. This standing to invoke international responsibility in relation to obligations erga omnes represents an expansion upon the general rule governing invocation of responsibility, which is limited to an injured State. The absence of a requirement of injury or special interest by a State invoking responsibility for breach of an obligation erga omnes is relevant to the primary rules at issue. In cases concerning obligations erga omnes related to international crimes, it may be 85 86 87

Chapter 9.b.ii.2 (Third-​State Consequences). Chapter 9.b.iii (Standing). Chapter 9.b.iii.1 (Common Legal Interest in Performance).

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that no State can be said to have been injured; there may similarly be no State with a special interest in such a breach.88 However it does not follow that there is no beneficiary of the obligation breached; the beneficiaries of such primary rules may be people rather than States, injured or otherwise. As the beneficiary of an obligation erga omnes may not be the State invoking responsibility for its breach, the remedies that such State might claim may differ from those claimed by an injured State. Practice illustrates that States invoking responsibility for breach of obligations erga omnes based upon their common legal interest in the performance of such obligations seek remedies that are directed not toward the benefit of the invoking State, but rather, in favor of the beneficiaries of the obligations breached. The law of State responsibility admits certain circumstances under which wrongfulness does not attach to a State’s breach of an international obligation.89 These circumstances, characterized as justifications and excuses, presuppose that the elements of an internationally wrongful act (i.e., breach and attribution) are established and do not affect the underlying obligation. Rather, such circumstances operate to justify or excuse conduct not in conformance with the relevant obligation. The ilc, in its Articles on State Responsibility, identified six circumstances precluding wrongfulness recognized under general international law, which pertain to consent, self-​defense, countermeasures, force majeure, duress, and necessity. However, circumstances precluding wrongfulness may not justify or excuse an act of a State in breach of a peremptory norm. As norms from which no derogation is permitted, it follows a priori that international law does not recognize circumstances that would justify or excuse derogation from such a primary rule. The jurisdiction to adjudge State responsibility rests upon the principle that the competence of a court to exercise jurisdiction over a State depends upon the consent of that State to such jurisdiction.90 In the absence of a State’s consent to jurisdiction, a court may not exercise jurisdiction over that State. This principle is unmoved by the subject-​matter of a dispute, including breach of an obligation erga omnes or compliance with a peremptory norm. In this regard, the legal effect of the character of the primary rules associated with duality of responsibility with respect to standing and jurisdiction can be seen to be distinct. While a common legal interest in the performance of obligations erga omnes is sufficient to entitle States to which such obligations are

88 89 90

Chapter 9.b.iii.2 (Beneficiaries of Invocation of Responsibility). Chapter 10.b (Circumstances Precluding Wrongfulness for Internationally Wrongful Acts). Chapter 11.b (Jurisdiction over States under International Law).

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owed to invoke the responsibility of a breaching State, this feature of obligations erga omnes does not extend to confer jurisdiction upon courts to adjudge such responsibility. Relatedly, the availability of jurisdiction based on the principle of universality exercised by domestic courts over individuals in relation to international crimes finds no analogous principle enabling the exercise of jurisdiction over States in relation to the same primary rules or obligations arising therefrom. The jurisdictional immunity of the State refers to the principle that one State is not to be subject to the jurisdiction of another State.91 State immunity is conceived as a right and corresponding obligation incumbent upon other States to respect and effectuate that immunity. The jurisdictional immunity of the State from domestic proceedings for acta jure imperii applies even where the underlying proceedings involve breaches of primary rules belonging to jus cogens amounting to international crimes. c

The Relationship between Individual and State Responsibility

The distinction between secondary rules respectively governing individual and State responsibility does not suggest that the two fields of responsibility operate in isolation. To the contrary, it “would be misleading to assert that these two regimes never intersect or overlap.”92 Duality of responsibility in international law is defined by the relationship between individual and State responsibility, which is shaped by the operation of secondary rules governing each field of responsibility. It has also been observed that “[t]‌he relationship of the state vis-​à-​vis the individual and of state responsibility vis-​à-​vis individual responsibility is anything but simple.”93 This complexity is borne out in the interplay of the secondary rules of individual and State responsibility as they concern breach, attribution, and other aspects of responsibility.

91 92

93

Chapter 12.b (State Immunity under International Law). Jérôme de Hemptinne et al., Cross-​Cutting Issues, in Jérôme de Hemptinne et al. [Eds.], Modes of Liability in International Criminal Law 2 (Cambridge: cup 2019); Andrea Bianchi, State Responsibility and Criminal Liability of Individuals, in Antonio Cassese [Ed.], The Oxford Companion to International Criminal Justice 16 (Oxford: oup 2009). Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13(3) ejil 561, 588 (2002).

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i Breach Establishing the breach of a primary rule applicable to both the individual and the State under international law is a referential process.94 In particular, for purposes of State responsibility arising concurrently with that of the individual, the element of breach in State responsibility is satisfied by establishing the elements of the relevant international crime, such that the elements of an international crime are necessary and sufficient to establish breach of that primary rule for purposes of State responsibility. In effect, the element of breach for purposes of State responsibility for an internationally wrongful act arising from an international crime subsumes the subjective and objective elements of that crime, as these elements of the international crime establish the objective fact of breach of the underlying primary rule. Importantly, while the breach of a primary rule attributable to the State that constitutes a crime under international law may be viewed as incorporating the subjective element of that crime, such subjective element has no further role in relation to the secondary rules governing State responsibility. The relationship between the element of breach for purposes of State responsibility that is complementary to that of the individual is not similarly linear because State responsibility arises from breach of primary rules distinct from those that may give rise to individual criminal responsibility. The element of breach of an obligation that may give rise to complementary State responsibility is nevertheless referential to individual criminal conduct. State responsibility complementary to individual criminal responsibility, arising for instance from breach of an obligation associated with the prevention and punishment of an international crime, is dependent upon the State’s failure to prevent or punish such conduct. Establishing the elements of the relevant crime under international law is necessary, but not sufficient, to establish a State’s breach of an obligation concerning prevention of such crime. However, because the allegation of an international crime appears to be sufficient to trigger a State’s relevant international obligations concerning punishment of such crime (e.g., to investigate and prosecute or extradite its alleged perpetrator), establishing the elements of the relevant international crime is neither necessary nor sufficient to establish breach of such obligation. One overarching feature of the interaction between individual and State responsibility is that duality of responsibility is not dependent upon application of the same positive source of the relevant primary rule to each subject of responsibility.95 The primary rules that apply to both the individual and the 94 95

Chapter 5.a (Relationship Between Elements of Individual and State Responsibility). Chapter 5.b (Sources of Law).

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State so as to give rise to the potential for their concurrent responsibility may arise under customary international law and multilateral international agreements. As a result, for practical purposes, the positive source of a primary rule being applied in the context of such duality of responsibility may be different with respect to each subject. Even so, the individual and the State may bear responsibility under international law concurrently for the same underlying conduct. Because the same underlying conduct may substantiate a breach of an international obligation by each subject, giving rise to both individual and State responsibility, such responsibility remains concurrent even if the breach of the relevant primary rule is operationalized through different positive sources. Importantly, the legal consequences arising for the individual and the State for breach of a primary rule are a function of the operation of secondary rules that are technically separate from such primary rule and the positive sources thereof. This distinction between primary and secondary rules helps to avoid an overly formalistic treatment of primary rules, ostensibly on the basis of their positive sources, due to the consequences for breach arising from the operation of secondary rules. While dual responsibility entails a close relationship between the element of breach for purposes of individual and State responsibility, proceedings adjudging those respective forms of responsibility are subject to distinct, and ­potentially divergent, standards of proof.96 In international criminal law, the standard of proof uniformly applied by international courts and tribunals adjudging individual criminal responsibility is the “beyond a reasonable doubt” standard. By contrast, the practice of international courts and tribunals adjudging State responsibility indicates that, in cases of “exceptional gravity”—​ which would seem at minimum to include proceedings concerning the attribution of conduct amounting to a crime under international law to the State—​a heightened standard of proof is applied.97 If the heightened standard of proof ­applicable in such proceedings aligns with the “beyond a reasonable doubt” standard applicable in proceedings adjudging individual criminal responsibility, such correspondence would be expected to promote harmonization between inter-​State proceedings concerning crimes under international law and parallel individual criminal proceedings for the same conduct. Conversely, if the standard of proof required in inter-​State proceedings of exceptional gravity is lower than the standard of proof commonly applied in criminal proceedings, 96 97

Chapter 5.c (Standards of Proof). Application of the Genocide Convention (2007), para. 209 (citing Corfu Channel (United Kingdom v. Albania), Judgment, i.c.j. Reports 1949, p. 17); Application of the Genocide Convention (2015), paras. 177–​179.

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there is a potential for divergent outcomes in proceedings concerning the same underlying conduct: a court assessing State responsibility might render findings with respect to an international crime that could not be established beyond a reasonable doubt (or to a similarly high standard) by a prosecutor before a court or tribunal with jurisdiction over individuals in relation to that same crime. There are also questions as to whether the heightened standard of proof in cases of exceptional gravity applies to claims concerning State responsibility that is complementary to individual criminal responsibility, where a State has failed to perform obligations erga omnes in relation to crimes under international law. ii Attribution Implicit in the application of a category of primary rules to both the individual and the State is attribution of conduct in breach of such rules to each subject of international law. The availability of such “double attribution” of conduct to both subjects of international law enables individual and State responsibility to arise concurrently for the same conduct.98 This concurrence of responsibility reflects a departure from the generally binary character of responsibility, according to which attribution of conduct to the State ordinarily has the effect of shielding the individual from responsibility for such conduct manifesting an act of the State, as the individual is generally not subject to obligations under international law. Because the primary rules in question obligate both the individual and the State under international law, conduct in breach of such rules may be attributed not only to the State, but also to the individual, for purposes of establishing responsibility. As discussed above, the breach of a primary rule giving rise to individual criminal responsibility is sufficient, if attributable to the State, to also constitute an internationally wrongful act engaging the ­international responsibility of the State. From the perspective of double attribution, where conduct is attributable to both the individual and the State, a natural order of operation is suggested, according to which a prior determination of individual criminal responsibility may serve as a basis for a subsequent finding of State responsibility. The secondary rules applicable to each field of responsibility suggest that it is practically unlikely for this order to be reversed, such that State responsibility may serve as the basis for a subsequent determination of individual criminal responsibility. The secondary rules of attribution in the fields of individual and State responsibility govern whether the relationship between a subject of international law 98

Chapter 8.b (Double Attribution).

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and impugned conduct or its author is sufficient to give rise to the responsibility of that subject under international law. Beneath this functional similarity, the respective modalities of attribution in international criminal law and the law of State responsibility reflect fundamental differences in their operation.99 The principle of culpability animates the operation of the secondary rules of attribution for purposes of determining individual responsibility for crimes under international law. By contrast, the secondary rules of attribution in the law of State responsibility have an objective character and have the practical effect of “objectifying” criminal conduct attributed to the State. As noted above, with respect to breach, where a primary rule incorporates a subjective element, as with a crime under international law, establishing breach of such a rule by the State entails an objective breach of that State’s relevant international legal obligation. Relatedly, the secondary rules of attribution in the law of State responsibility contain no subjective element commensurate with the modes of attribution in international criminal law that establish criminal liability. Where breach of a primary rule gives rise to individual criminal responsibility under international law, the attribution of such an international crime to the State does not translate to State criminality or otherwise impute criminal liability, even if the State may incur international responsibility for an internationally wrongful act arising from breach of the same primary rule in relation to the same underlying conduct. The double attribution of crimes under international law is dependent in part upon how such conduct is regarded from the standpoint of international law, particularly where such conduct is—​as is often the case—​perpetrated by organs of the State.100 The default presumption of the relevant rules of attribution in the law of State responsibility is that the conduct of a State organ is regarded as an act of the State for purposes of attribution.101 However, there is support for the proposition that individual conduct by a State organ constituting an international crime is not properly regarded as having been undertaken in its “official capacity” under international law. One explanation for this characterization is that, because an international crime constitutes the violation of a primary rule that is a peremptory norm of international law “from which no derogation is permitted,”102 the violation of such a primary rule can never be authorized by the State as a matter of international law. It follows that such conduct always exceeds the authority of a State organ from the perspective of 99 100 101 102

Chapter 8.a (Principles of Attribution: Culpability and Objectivity Distinguished). Chapter 8.c (International Crimes, Official Capacity, and Attribution to the State). ilc Articles on State Responsibility, Article 4. See similarly id., Articles 5 and 6. Vienna Convention on the Law of Treaties, Article 53.

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international law. Even so, it is likely that such conduct was carried out under color of law. The proposition that conduct by a State organ, operating under color of law, amounting to a crime under international law is not properly regarded as official because it exceeds normal State functions, would result in such conduct being regarded as ultra vires from the perspective of international law. Regarding international crimes by State organs as inherently ultra vires is not in tension with the characterization of international crimes as acta jure imperii for purposes of State responsibility; such conduct remains attributable to the State.103 Ultra vires conduct, while distinguishable from official capacity conduct, is also distinct from conduct performed in the private capacity of a State organ. As a general rule, private conduct is not attributable to the State for purposes of State responsibility. There is, however, limited support for the position that crimes under international law are properly regarded as private in character, even where performed by a State organ under color of law.104 This proposition is generally directed at the denial of immunity ratione materiae for such conduct. While regarding international crimes as inherently private in character would prevent the sovereign immunity of the State from shielding such conduct from jurisdiction—​rendering immunity ratione materiae in relation to such conduct unavailable—​this consequence would result from the non-​ attributability of that conduct to the State in the first instance. Such treatment would foreclose the possibility of State responsibility arising concurrently with individual criminal responsibility for breach of the same primary rule. Even if the individual is the principal subject of responsibility for international crimes, practice does not support the proposition that international crimes are inherently private in character. Generally, attribution and immunity operate in concurrence to attribute conduct of the individual to the State for purposes of responsibility and to preclude the exercise of jurisdiction over an act of the State with respect to such individual. This operation of secondary rules is a manifestation of the ordinarily binary character of international responsibility described above. However, a substantial body of practice indicates that immunity ratione materiae is unavailable to State organs before international and domestic courts for international crimes despite the attributability of such conduct to the State. While international crimes appear to present an anomaly in the relation of secondary rules of attribution and immunity, this relation is consistent with the

1 03 ilc Articles on State Responsibility, Article 7. 104 Chapter 8.d (Crimes under International Law Performed in a Private Capacity).

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operation of primary and secondary rules in the context of duality of responsibility.105 Because immunity ratione materiae reinforces the State as the sole subject of responsibility for acts of the State, its application to international crimes would be inconsistent with breaches of primary rules that also generate obligations for, and may accordingly be attributed to, the individual under international law. And, because an international crime necessarily exceeds the official capacity of a State organ from the perspective of international law, such conduct would not attract immunity ratione materiae because international law does not admit the breach of such a primary rule as falling within the official functions of a State organ. Whether viewed from the perspective of attribution or breach, the inapplicability of immunity ratione materiae to a crime under international law is ultimately a function of the primary rule at issue. iii Responsibility It is well established that the responsibility of individuals and States under international law serve different purposes, a relationship unaltered by duality of responsibility.106 The consequences arising from individual criminal responsibility for a crime under international law serve, among others, retributive and deterrent ends, leading to the possible deprivation of liberty and property interests of convicted individuals. The consequences of State responsibility, by contrast, aim to restore the lawful situation of a State in breach of an international obligation and to wipe out the consequences of an internationally wrongful act so as to establish the situation that would have existed in the absence of the unlawful act.107 The obligations of cessation and reparation that arise as consequences of an internationally wrongful act for the breaching State are analogous to remedies arising from civil liability in domestic legal systems. The divergent purposes and consequences of responsibility of individuals and States under international law illustrate why efforts to incorporate the punitive ends of international criminal law into the law of State responsibility have been unsuccessful. Even so, the practical impact of the consequences of State responsibility, namely obligations of cessation and reparation, have the potential to serve important functions in relation to individual criminal responsibility. The legal consequences of an internationally wrongful act may even take on an outsized role in relation to primary rules giving rise to duality of responsibility. Differentiation in forms of responsibility and associated

1 05 Chapter 8.e (Attribution to the State and Individual Immunity Ratione Materiae). 106 Chapter 9.c (Differentiation in Forms of Responsibility and their Consequences). 107 Factory at Chorzów (Merits) (1928), 47.

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consequences yields a host of complementary remedies for breaches of international law with respect to individuals and States. Divergence in forms of responsibility is reflected in the secondary rules governing the avoidance of responsibility.108 While these secondary rules are generally understood to derive from domestic legal systems, each category of pleas hails from a different aspect of domestic law indicative of the broader differentiation between international criminal law and the law of State responsibility. In particular, defenses under international criminal law refer to general principles of criminal law as they arise in domestic systems, while circumstances precluding wrongfulness appear to derive from defenses to civil claims in domestic legal systems. Notwithstanding this distinction, circumstances precluding wrongfulness in the law of State responsibility take the form of justifications and excuses, not dissimilar to the subset of defenses in international criminal law similarly characterized as such. Practice across both international criminal law and the law of State responsibility suggests that justifications and excuses may not provide a complete defense or preclude wrongfulness, respectively, where impugned conduct violates a peremptory norm, from which no derogation is permitted, because such conduct cannot be justified or excused. Although self-​defense appears as both a defense in international criminal law and a circumstance precluding wrongfulness in the law of State responsibility, its operation in international criminal law is distinct from its particular reference in the law of State responsibility to the lawful use of force. Duality of responsibility contemplates the operation of secondary rules to attribute breaches of certain primary rules to both the individual and the State, however such double attribution is distinct from the competence of a judicial organ to adjudge responsibility, which is a question of jurisdiction. The secondary rules of international law governing jurisdiction over individuals and States are distinct.109 With particular respect to the principle of universality as a basis for the exercise of jurisdiction by domestic courts over individuals in relation to international crimes, and in view of the analogous exercise of jurisdiction over individuals by international courts and tribunals, the exercise of such jurisdiction is separate and distinct from the exercise of jurisdiction over States in relation to the same primary rules, and there is no equivalent principle of universality that operates with respect to jurisdiction over States. While States appear largely to have accepted universality as a jurisdictional principle over individuals allegedly responsible for crimes under international

1 08 Chapter 10.c (Points of Contact in Avoidance of Responsibility). 109 Chapter 11.c (Divergence in Rules of Jurisdiction).

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law, no corresponding jurisdictional principle over States to which such conduct may be attributable is reflected in the practice of States. To the extent that universal jurisdiction is a product of obligations to extradite or prosecute individuals alleged to have committed international crimes, there is no corresponding obligation under international law the performance of which might require the exercise of jurisdiction by a domestic court over a foreign State. In effect, international law may be viewed to admit a principle of jurisdiction over individuals with respect to international crimes which has no functional corollary in the exercise of jurisdiction over States, which remains contingent upon State consent. A deviation closely related to the operation of secondary rules of jurisdiction is observed in the secondary rules governing immunity of States and individuals for conduct in breach of primary rules associated with international crimes.110 Sovereign immunity consists of both ratione personae and ratione materiae elements. Practice indicates that immunity ratione materiae is unavailable to State organs before international and domestic courts in relation to crimes under international law. By contrast, immunity ratione personae is available to high State officials in domestic proceedings, even those concerning crimes under international law. Similarly, the jurisdictional immunity of the State in domestic proceedings involving acta jure imperii applies regardless of the obligations at issue, including proceedings concerning peremptory norms and crimes under international law. The availability of immunity in each instance may be viewed as a function of the personal jurisdiction aspect of sovereign immunity. The consent of the State is required to waive the ratione personae element of sovereign immunity in order to establish foreign domestic jurisdiction over its beneficiary, irrespective of the subject matter at issue. The secondary rules governing jurisdiction and immunity may be viewed in the context of duality of responsibility as mutually reinforcing. The permissive principle of universality as a basis for the exercise of domestic criminal jurisdiction over individuals allegedly responsible for crimes under international law corresponds to the unavailability of immunity ratione materiae to immobilize jurisdiction over such conduct. By contrast, it is generally accepted that there is no basis upon which to exercise jurisdiction over a State in the absence of its consent, even with respect to attribution of crimes under international law, and that the jurisdictional immunity of the State is applicable in the absence of a waiver of such immunity by the State, regardless of the subject matter of a dispute. In this way, the secondary rules of jurisdiction and 110 Chapter 12.c (Corresponding Divergence in Rules of Immunity).

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immunity largely concur in their operation with respect to primary rules associated with crimes under international law in relation to the individual and the State. A notable exception to this concurrence is the availability of immunity ratione personae of high State officials before domestic courts in relation to crimes under international law. Also notable in this regard is the treatment of immunity ratione personae as inapplicable before international proceedings by certain international courts and tribunals.111 111 Chapter 12.a.i (Immunity Ratione Personae).

­c hapter 14

Conclusions As noted at the outset of this monograph, the responsibility of individuals and that of States under international law are generally regarded as independent systems.1 The icj described this separation in 2015 in the following terms: State responsibility and individual criminal responsibility are governed by different legal régimes and pursue different aims. The former concerns the consequences of the breach by a State of the obligations imposed upon it by international law, whereas the latter is concerned with the responsibility of an individual as established under the rules of international and domestic criminal law, and the resultant sanctions to be imposed upon that person.2 The foregoing Parts of this monograph have illustrated that, insofar as these fields of responsibility are defined by distinct secondary rules, this conclusion is beyond question. This monograph has, however, also demonstrated that, where individual responsibility is implicated by a primary rule of international law, with respect to such primary rule, the secondary rules of State responsibility do not operate in isolation of the secondary rules of individual responsibility. Instead, the secondary rules of State responsibility are, in various ways, referential to secondary rules of individual responsibility. Moreover, the operation of these two systems in parallel where crimes under international law are concerned departs from the binary allocation of responsibility that generally defines responsibility under international law. This departure shapes the operation and effect of various secondary rules in the fields of both individual and State responsibility. These aspects of departure may be viewed as a product of points of contact between secondary rules of individual and State responsibility. These points of contact result from the application of a limited category of primary rules to both the individual and the State. Duality of responsibility, in this sense, may be understood through the operation of secondary rules in relation to a limited category primary rules applicable to both the individual and the State.

1 See supra, Introduction, n. 1. 2 Application of the Genocide Convention (2015), para. 129.

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Generally, the State is the exclusive subject of obligations under international law. As a result, conduct attributable to the State in breach of its international obligations gives rise only to State responsibility. This assessment is unaltered by the practical reality that “States can act only by and through their agents and representatives.”3 To the contrary, the secondary rules of attribution in the law of State responsibility are based on this premise. The conduct of an individual on behalf of the State, as an act of the State, may result in State responsibility where such conduct breaches an international obligation of the State.4 Because the individual is generally not subject to such international obligation, there is no basis for the individual to incur liability under that same obligation. The general rule, then, is that individual responsibility is excluded for acts of the State.5 This result may be viewed in the first instance as a function of the applicability of the relevant primary rule exclusively to the State. In other words, it is not only because an individual has acted on behalf of the State, but also and perhaps more importantly, because only the State bears obligations capable of breach under international law, that individual responsibility from the perspective of international law is excluded. Duality of responsibility is, by contrast, predicated, specifically in its concurrent form, upon the attributability of conduct to both the individual and the State. And, in order for responsibility under international law to arise for each subject by operation of double attribution, both the individual and the State must be subject to an international obligation capable of breach by that attributed conduct. Watts explains the linkage between such application of primary rules and attribution in the following terms: While generally international law … does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute nor [sic] merely i­ nternational wrongs (in the broad sense of a civil wrong) but rather international crimes which offend against the public order of the international community. States are artificial legal persons: they can only act through the

3 German Settlers in Poland (1923), 22. 4 Blaškić (1997), para. 38. 5 See, e.g., Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31(5) California Law Review 530, 556 (1943) (“The fact that an act is an act of State constitutes a problem of general international law which, as a rule, excludes individual responsibility for an act of State.” (internal citation omitted)). For discussion of the underlying principle, cf. R. Y. Jennings, The Caroline and McLeod Cases, 32(1) ajil 82, 92–​99 (1938) (McLeod’s Case).

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institutions and agencies of the State, which means, ultimately, through its officials and other individuals acting on behalf of the State. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal State and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice. The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law.6 It is, then, the application of relevant primary rules of international law to the individual signaled by duality of responsibility that constitutes the salient point of departure. The recognition of this development in international law by the imt at Nuremberg was so consequential that it continues to be referenced with great regularity on this particular point: It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized.7 Also remarkable is that this extraordinary development has not transformed the secondary rules of State responsibility under international law, perhaps because it remains the case that international law obligations generally bind only the State (a presumption upon which the law of State responsibility is based). Therefore, while international law admits the individual as a subject of obligations under international law, the field in which the individual is subject to international law obligations remains narrowly defined. The applicability of a category of primary rules not only to the State, but also to the individual, under international law is the driver of the operation of secondary rules in this context. Accordingly, the operation of secondary rules to mediate this space in

6 Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, [1994 iii] 247 Recueil Des Cours 82 (Leiden: Martinus Nijhoff 1994) (emphasis in original). 7 imt Judgment and Sentences (1946), 220.

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which both the individual and the State are subject to overlapping obligations under primary rules of international law is best understood to be sui generis. With respect to this limited category of primary rules applicable to both the individual and the State, the first part of this monograph identified overlap between peremptory norms of general international law (jus cogens), crimes under international law, and associated obligations erga omnes. The primary rules in this field reflect a kind of social contract consisting of norms necessary for coexistence of the international community.8 As public order norms, the category of jus cogens is an expression of the common interests and values necessary for the social coexistence of mankind, implicated by the relations of States, within the international community. Peremptory norms belonging to this category are defined by their quality as norms from which no derogation is permitted,9 and which are, in turn, applicable to both the individual and the State as subjects of international law. International law does not operate to exclude the responsibility of the individual for conduct in breach of such primary rules simply because such conduct might have been undertaken in the name of the State; to the contrary, such breaches are defined with respect to the individual as crimes under international law. This conceptualization provides perspective on the unique consequences that have emerged in this area of international law. Individual criminal responsibility for crimes under international law may be viewed from the perspective of this exceptional category of norms. “Criminal law,” it has been observed, as a general matter, “focuses on the acts that breach the social contract, and thus harm or threaten interests that need to be protected to enable social life to continue according to the preset contractual terms.”10 That breaches of a limited category of primary rules of this character in international law give rise to individual criminal responsibility reflects the importance of those rules to the international community as a whole. The conclusion of the oft-​cited passage from the imt at Nuremberg quoted above is equally consequential in this regard: “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.”11 The operation of secondary rules in the fields of State and individual responsibility suggests prioritization of individual responsibility for crimes under 8 9 10 11

Cf. Thomas Weatherall, Jus Cogens 452–​456 (Cambridge: cup 2015). Vienna Convention on the Law of Treaties, Article 53. R. A. Duff, Choice, Character and Criminal Liability, 12(4) Law and Philosophy 345, 381–​383 (1993). imt Judgment and Sentences (1946), 221.

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international law. For example, recognition of the principle of universality as a basis of jurisdiction marks a dramatic expansion of the capacity of the State to exercise prosecutorial functions over individuals alleged to have committed crimes under international law. The unavailability of immunity ratione materiae for State organs in proceedings concerning international crimes reinforces this jurisdictional competence and, in effect, expands the mechanisms available to prosecute international crimes. The operation of these secondary rules with respect to the individual in relation to crimes under international law stands in marked contrast to the operation of corresponding secondary rules vis-​à-​vis the State. International law does not admit a jurisdictional principle over States akin to universality in the context of primary rules associated with international crimes. The absence of any such permissive rule is reinforced by the general applicability of State immunity in such cases, irrespective of the subject matter of a dispute. This applicability of State immunity has the practical effect of limiting the mechanisms available for imposing forms of liability upon the State in domestic fora concurrent with, or complementary to, individual responsibility for crimes under international law. The relative prioritization of individual responsibility for international crimes by the permissive operation of secondary rules might be viewed as a natural result of such responsibility lying primarily with the individual. From the perspective of holding accountable those most responsible for crimes under international law, it is perhaps unsurprising that associated secondary rules have developed in ways that promote individual criminal responsibility without functional parallels in the operation of corresponding secondary rules with respect to the State. Where primary rules apply to both the individual and the State, individual responsibility for crimes under international law is additive, giving rise to the possibility of concurrent responsibility. One practical effect of this duality, described by the ilc in its commentary to the Articles on State Responsibility, is to preclude one subject of international law from “hiding behind” the allocation of responsibility to another: Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so, the question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out. Nor may those

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officials hide behind the State in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them.12 On the one hand, this observation captures the shift away from a strictly binary allocation of individual and State responsibility under international law where crimes under international law are concerned. On the other, this observation—​reflected in the operation of secondary rules of State responsibility—​confirms that individual criminal responsibility is not a substitute for State responsibility from the perspective of international law with respect to international crimes. The relative primacy of individual responsibility for crimes under international law does not, therefore, operate to the exclusion of State responsibility. However, State responsibility arising in relation to individual criminal responsibility, even for breach of the same primary rules, appears to be subsidiary to individual responsibility. The subsidiary relation of State responsibility to individual criminal responsibility can be seen functionally in the operation of secondary rules animating duality of responsibility. The breach of a primary rule subject to double attribution is dependent upon establishing that individual conduct amounts to a crime under international law. Of course, State responsibility is always referential to conduct attributable to it in breach of an international obligation—​the difference in this context is that individual responsibility is not excluded by such attribution. The breach of a primary rule associated with an international crime—​an obligation erga omnes—​is also contingent upon the commission of an international crime (or allegation thereof) and, in particular, the conduct of the State in relation to such crime.13 In either instance, State responsibility arising concurrently with, or complementary to, an international crime is functionally subsidiary to the commission of a crime under international law and individual responsibility arising therefrom. The subsidiary character of State responsibility in relation to that of the individual for a crime under international law is an empirical observation that need not diminish the role of the State in this context. To the contrary, the limited availability of international mechanisms empowered to adjudge State responsibility and the narrow capacity of international criminal courts and tribunals means that preventing and punishing crimes under international law

12 13

ilc Articles on State Responsibility, Article 58, Commentary, para. 3. See discussion supra, Chapter 4.d (Complementary State Responsibility).

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will generally be defined by the measures that States themselves are willing to undertake to this end. While norms giving rise to crimes under international law reflect common interests of the international community of States as a whole, under present international law, States are the principal organs upon which respect for these norms is dependent. The evolution of secondary rules of standing—​enabling third-​States to invoke the responsibility of a breaching State on the basis of common legal interest—​and emergence of consequences for third-​States—​such as non-​recognition, non-​maintenance, and cooperation toward cessation—​are developments that promote a community-​based response to breaches of primary rules associated with crimes under international law. To the extent that these underlying primary rules reflect a kind of international social contract, it remains that the legal architecture of duality of responsibility is reliant upon the participation of States as members of the international community.

Index abuse of authority xv, 4, 210, 218–​220, 257, 324 see also authority; ultra vires conduct acceptance of crimes 143, 146–​147, 320 accountability xi, xiv, 206, 310 acquittal 261, 322 acta jure gestionis 86, 308, 326 acta jure imperii  acta jure gestionis 86 attribution 308, 326, 340 crimes under international law 181, 326 individual conduct 219 State immunity 222, 310, 335, 343 acts of States see also under color of law; State organs aggression 164 attribution 107–​110, 178, 224, 330, 346 breach of obligations 106 immunity 308, 312 official capacity 216, 225 reparation 244 sovereignty 86, 347 State organs 183, 186, 216, 339 ultra vires conduct 330 actual knowledge 159 actus reas see objective element ad hoc tribunals see specific tribunals Advisory Committee of Jurists 23 affirmative actions 128, 146, 197, 200, 331 agencies 3n.7, 18n.41, 208, 347 agents of the State 32, 93n.83, 179, 181n.19, 330, 346 see also State organs aggravated State responsibility 90–​ 94, 91n.75, 247, 258, 327 see also seriousness aggression  acts of 79, 85, 213, 257, 349 attempts 164 core crimes 28 defenses 268, 277 defined 85, 277n.92 individual responsibility 45 jus cogens 40–​41 seriousness 246 Ago, Robert 36

aiding and abetting  complicity 153n.122 distinction between 149n.99 genocide 170 modes of liability 133, 149–​154, 171, 320 Algeria 218, 302 Alien Tort Statute 218 allegations 99, 101, 112, 123, 328, 336 see also investigation Allied and Associated Powers 20, 21n.54, 22n.65 Allied Commission of Jurists 23n.68 allocation of responsibility see modes of attribution Amsterdam Court of Appeal 217, 301 antecedents 22, 85n.47 Anzilotti, Dionisio 203 apartheid 41, 45, 51, 53n.79 apologies 242 Appeals Chamber (icc) 162, 293, 306 see also International Criminal Court (icc) Appeals Chamber (icty) see also International Criminal Tribunal for the former Yugoslavia (icty) aiding and abetting 172 defenses 269 deterrence 233 immunity 298 jce 140 retribution 231 shielding of individuals 209 Appeals Chamber (scsl) 298 see also Special Court for Sierra Leone (scsl) Application of the Genocide Convention Cases (icj) see also genocide acknowledgement and adoption of conduct 194 actions and omissions 198 attribution 179, 184 cessation 239 complementary responsibility 101 concurrent responsibility 84, 97 counter-​genocide 271 double attribution 82–​86, 211, 214

354 Index Application of the Genocide Convention Cases (cont.) duality of responsibility 31 genocide 109, 114 individual responsibility 223 instruction, or under the direction or control, of the State 189 insurrection 192 invocation of responsibility xvi, 251, 253–​254 prevention and punishment 34, 78, 100 satisfaction 243–​244 secondary rules 54 standards of proof 124, 128 State organs 179, 181 State responsibility 55, 170 Armed Activities on the Territory of the Congo (icj) 186, 219, 284 Arrest Warrant (icj) 216, 221, 290, 294, 305 arrest warrants 305 Articles on State Responsibility (ilc)  absence of State authority 191 acknowledgement and adoption of conduct 193 aggravated State responsibility 91 assistance 173 beneficiaries 252 cessation 238–​239 concurrent responsibility 82 consequences for third-​States 248 crimes of States 43, 88 customary international law 16n.28 de facto State organs 182 defenses 268, 270, 273, 334 double attribution 207 duality of responsibility 31, 35, 349 failure to prevent or punish 50 individual responsibility 79 instruction, or under the direction or control, of the State 189 insurrection 192 internationally wrongful acts 58, 77, 178 legal consequences 237 obligations erga omnes 95 prevention and punishment 102 reparation 240 secondary rules 36, 54, 57, 195 seriousness 257 State organs 180–​181

subjective element see also fault 204 ultra vires conduct 186, 219–​220 artificial legal persons 3n.7, 18n.41, 208, 346 assistance 58, 124, 149–​150, 202, 320 associated primary rules 35, 46, 92, 97 see also primary rules assurances and guarantees of non-​ repetition 238, 239n.56, 254 asylum 100 attempts 146, 148, 163–​165, 320 attendant circumstances 66, 66n.9, 69n.24, 69–​70, 105, 318 authority  absence or default of 190–​191 abuse of xv, 4, 210, 218–​220, 257, 324 formal sources of law 11 governmental 182–​184, 330 modes of attribution 145, 320 State 3, 279, 297 superior responsibility 156 tribunals 22, 27, 291 ultra vires conduct 185, 218–​220, 339 avoidance of responsibility 321, 331, 342 see also circumstances precluding wrongfulness; defenses awareness 138, 143, 146–​147, 151, 319 Balkan conflict xvi Barcelona Traction (icj) 46–​50, 52 Al-​Bashir, Omar 292, 295, 302, 306 Belgium  immunity 294, 305 invocation of responsibility xvi, 49, 252, 254 reparation 243 universal jurisdiction 283 beneficiaries 245, 252–​254, 332, 334 beyond a reasonable doubt 66, 119, 122n.92, 169, 337 see also standards of proof Blaškić (icty) 17n.35, 90, 298 Bouterse 301 Bouterse, Desi 217 breach  defined 77 elements of crime, relation to 106, 336–​338 State responsibility 325–​329, 336–​338 burden of proof 117–​119 see also standards of proof

Index Canada xvii, 231, 309 Cançado-​Trindade, Antonio A. 94 Cassese, Antonio 268 causation 68, 162 Central American Court of Justice (cacj) 20 cerd (Convention on the Elimination of Racial Discrimination) 52 Certain Criminal Proceedings in France (icj) 305 Certain Questions of Mutual Assistance in Criminal Matters (icj) 305 certainty 119, 122, 122n.92, 178, 195 see also standards of proof cessation  beneficiaries 254 consequences 238, 255, 259–​260, 331 cooperation 249, 351 remedies 341 Chad 100–​101, 129, 295 Charter of the United Nations 42, 248, 268, 277 child soldiers 74 Chile 217, 294n.28 circumstances precluding wrongfulness 268–​278, 334, 342 circumstances, attendant 66, 66n.9, 69n.24, 69–​70, 105, 318 civil claims 342 civil law systems 119–​120, 122n.92 civilians 67, 157, 295 codification 16, 26, 39, 283, 327 collective responsibility 90, 206, 206n.18, 234 comity 307 command responsibility see superior responsibility commercial activity 86, 326 commission (crime) 58, 133, 135–​142, 202, 319–​320 Committee on the Elimination of Racial Discrimination 52 common law systems 69–​73, 69n.22, 118–​122, 124, 127 common legal interest 50, 245, 250–​254, 285, 333 see also erga omnes obligations common plan 137, 138n.30, 154, 319 see also joint criminal enterprise (jce) compensation 240–​244, 241n.70, 259, 332 see also damages; reparation

355 compliance 48–​49, 250, 252, 259, 270, 284 complicity 149, 153, 171, 198 condemnation 232, 262 conditionality 112 conduct  acknowledgement and adoption 193–​ 194, 331 acts of States 86–​87, 326 attribution 78, 80, 224, 227, 330 cessation 237 defenses 274 double attribution 207–​215, 350 immunity 296, 309 individual 78, 108–​109, 116, 196, 207–​ 215, 326 objective element 66, 66n.9 official capacity 215–​218 private 220–​224, 330, 340 State organs 179–​184 State responsibility 328 subjective element 68–​74 ultra vires 218–​220 conduct, results of 66, 98, 105, 318 Congo, the 186, 294, 305 consent to conduct 270, 334 consent to jurisdiction  divergence 286–​287, 334 immunity 59–​60, 291, 307n.106, 311, 313 international law 284–​285 inviolability 304 consequences  differentiation 254–​260 individual responsibility 207, 231, 321, 341 intent 90–​92 penalties 235–​237 State responsibility 59–​60, 127, 237, 331 third States 59, 90–​92, 245–​249, 332, 351 consistency (of immunity and inviolability) 121, 305 conspiracy 165–​166, 320 constructive knowledge 74n.38, 159 Convention on the Elimination of Racial Discrimination (cerd) 52 conviction  elements of crime 105 immunity 301 penalties 59, 119, 235, 237, 322 prior 84, 170 standards of proof 213

356 Index cooperation 24, 117, 248, 333, 351 co-​perpetration 135–​138, 176, 206n.18 see also joint criminal enterprise (jce) core crimes 28, 53n.79 see also aggression; crimes against humanity; genocide; war crimes Corfu Channel (icj) 121, 128 Costa Rica 20 counter-​genocide 271 see also genocide countermeasures 270, 334 Court of Appeal of Kenya 295 Court of Appeals for the Ninth Circuit (US) 218 courts and tribunals, international see also specific tribunals abuse of State authority 256 assistance 150 attempts 164 authority 22, 27, 291 autonomy 5 commission (crime) 135 defenses 261, 263 disorganization of xvi, xvii double attribution 212–​214 duality of responsibility xi elements of crime 66, 106 encouragement 144–​145, 147 immunity 291, 297, 312, 323, 344 individual responsibility 27, 55 inviolability 306 jurisdiction 29, 61, 279, 307n.106, 313, 322, 342 law of State responsibility 16 legal personality 20, 22 modes of attribution 133 penalties 59, 231, 235, 321 primary rules 81 sources of law 173 standards of proof 120, 126, 337 State responsibility 84, 170 superior responsibility 159 Crawford, James xiv, 48, 219 crimes against humanity see also core crimes attendant circumstances 67 defenses 265–​266, 269 defined 44 double attribution 83 immunity 294, 299n.57, 301 individual responsibility 25, 28, 44

inviolability 305 jurisdiction 28, 281n.13 jus cogens 41 official capacity 217 State organs 257 State responsibility 83 crimes against peace 25, 80, 165 see also aggression; core crimes crimes of States 42, 87–​90, 205, 256, 327, 339 crimes, acceptance of 143, 146–​147, 320 criminalization 93 Croatia 192 culpability 134, 157, 162, 202, 204, 339 see also subjective element customary international law see also general international law attempts 163 attribution 106 defenses 265, 272 double attribution 210 formal sources 12 immunity 62, 290, 293, 299, 306 instruction, or under the direction or control, of the State 189 international crimes 44 internationally wrongful acts 56, 92, 325 inviolability 304–​305 jurisdiction 288 jurisdictional immunity 307, 311 jus cogens 48, 51 modes of attribution 133, 136, 144–​145, 147, 152, 321 obligations erga omnes 49, 94, 317 sources of law 113, 173–​177 State organs 179 superior responsibility 156, 160 treaty law 40 damages 241n.70, 255n.137, 273, 273n.74 see also compensation; reparation death 235, 266 defenses see also circumstances precluding wrongfulness burden of proof 118 complete 263, 266–​269, 275, 322, 342 defined 261 duality of responsibility 342 duress 266 failure of proof 262–​264

Index incomplete 261 individual and State responsibility 60, 272–​278 individual responsibility 60, 322 justifications and excuses 262, 265–​269, 274–​275, 322, 334, 342 self-​defense 265, 270, 276–​278, 322, 334 superior orders 267 delinquency 14n.20, 87n.56, 87–​89, 205 deportation xvi deprivation of liberty 59, 119, 235, 255, 322, 341 deprivation of life 119, 235 deprivation of property interests 59, 235, 255, 322, 341 derogation 39, 61, 81, 220, 268, 274, 322, 334 deterrence 44, 59, 233, 255, 260, 321, 341 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (icj) 180 diplomatic protection 18, 20, 46 direct effect standard 147 see also substantial contribution standard discrimination, racial 41, 45, 51, 53n.79 dispute resolution 13, 14n.20, 14–​15, 284 distress 270 diversification 5 Djibouti 305 dolus directus 69, 146, 148 dolus eventualis 71, 144, 146–​147 dolus specialis 70, 84, 124, 152, 171 domestic courts  double attribution 214 immunity 87, 293–​295, 299–​304, 309–​310 inviolability 305 jurisdiction 61, 280, 286, 322 domestic legal systems  consequences 255, 341 defenses 60, 261, 264, 273 elements of crime 58, 69 standards of proof 118 double attribution  concurrent responsibility 34, 207–​215, 338–​341 defenses 275 genocide 108 immunity 227

357 primary rules 82 sources of law 113, 116 Draft Articles on Jurisdictional Immunities of States and their Property (ilc) 180 Draft Articles on State Responsibility (ilc) 16, 47, 88, 91, 185 Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction (ilc) 299, 303 Draft Articles on the Law of Treaties (ilc) 42 Draft Articles on the Obligation to Extradite or Prosecute (ilc) 100 Draft Code of Crimes against the Peace and Security of Mankind (ilc) 27, 32, 54, 80, 99, 103, 163–​164, 181 Draft Code of Offences against the Peace and Security of Mankind (ilc) 27, 163 Drafting Committee (ilc) 300 due diligence 74, 98 duress 266, 322, 334 see also defenses duties  breach 112 individual 26, 297, 347 prevention and punishment 81, 94–​96, 160, 327 superior responsibility 155, 160, 320 eac (Extraordinary African Chambers) 28, 236 Eagleton, Clyde 15 East Timor (icj) 284 eccc (Extraordinary Chambers in the Courts of Cambodia) 28, 140 ECtHR (European Court of Human Rights) 301, 310 eecc (Eritrea-​Ethiopia Claims Commission) 123 Efrain Ríos Montt, José 302 Eichmann 300 Eichmann, Adolf xviii, 283 El Salvador 20 elements of crime see also objective element; subjective element attribution 338–​341 breach 106, 336–​338 defenses 261 internationally wrongful acts 105–​108, 325 State responsibility 108–​113

358 Index Elements of Crimes 28 encouragement 58, 142–​148, 202, 319 Erdemović (icty) 269 erga omnes obligations see also beneficiaries; general legal interest erga omnes partes 46, 49–​52, 95 in general 46–​53 prevention and punishment 101–​104, 243 prosecution or extradition 200, 239, 243 State responsibility 94–​97 Eritrea-​Ethiopia Claims Commission (eecc) 123 errors of fact or law 262, 322 European Court of Human Rights (ECtHR) 301, 310 evidence 118, 121, 166, 172, 305 see also burden of proof; standards of proof exceptional gravity 121, 125, 127, 129, 337 exculpation 262, 322 exoneration 103 extradite or prosecute, obligation to see also Questions Relating to the Obligation to Prosecute or Extradite (icj) allegations 99, 101, 112, 328, 336 Habré, Hissène 101, 112, 200, 239 jurisdiction 281, 343 jus cogens 43 obligations erga omnes xvii, 246, 288 standards of proof 129 Torture Convention xvi, 51, 239 Extraordinary African Chambers (eac) 28, 236 Extraordinary Chambers in the Courts of Cambodia (eccc) 28, 140 Factory at Chorzów (pcij) 240 failure of proof 262, 274, 278, 322 see also defenses fault see also subjective element aspects 68–​75, 69n.22, 318 degrees of 107 State responsibility 107, 110, 203–​204 Federal Criminal Court of Switzerland 218, 302 fines see deprivation of property interests First World War 20, 22, 23n.69 force majeure 270, 334 formalism 115 Former Republic of Yugoslavia (fry) 115

Fourth Report on State Responsibility (Crawford) 48 fragmentation 5 France 295, 301, 305, 310 Furundžija (icty)  duality of responsibility 33, 196 general principles of law 175 immunity 298 jus cogens 43 obligations erga omnes 48 prevention and punishment 78, 95 Gabčíkovo-​Nagymaros Project (icj) 241 Gaddafi 295 Gambia, the xv, 170, 244, 253–​254 Gbagbo, Laurent 306 general international law see also customary international law circumstances precluding wrongfulness 269–​272, 334 consequences 238 defenses 268 icj on 55, 57 jurisdiction 285 obligations erga omnes 250 peremptory norms 39, 81, 326 secondary rules 195 general legal interest 47, 49, 60, 94, 251 see also invocation of responsibility; standing general principles of law  attribution 133 defenses 60, 261, 263, 265, 272, 322, 342 elements of crime 65 formal sources 173–​177, 321 individual responsibility 58, 318 modes of attribution 173–​177 State as subject 13 Geneva Conventions 32, 187, 235, 294 genocide see also Application of the Genocide Convention Cases (icj) absence of authority 191 acknowledgement and adoption of conduct 194 attribution 179, 192, 195, 199, 211 cessation 239 complementary responsibility 101 complicity 153, 198 concurrent responsibility 97

Index conspiracy 165, 321 core crimes 28 crimes of States 90 double attribution 83 duality of responsibility 31 immunity 299n.57, 302 inchoate offences 162, 167 individual responsibility 45, 55 instruction, or under the direction or control, of the State 190 invocation of responsibility xvi, 251, 253–​254 jurisdiction 281n.13, 285 jus cogens 41 penalties 235 prevention and punishment 34, 51, 78, 200, 243 reparation 244 self-​defense 265 seriousness 246 sources of law 114 standards of proof 124 State organs 181 State responsibility 110, 170, 257, 329 German Settlers in Poland (pcij) 17, 178 Germany 83, 89, 181, 194, 212, 309 gravity 195, 257, 266, 278, 303 see also exceptional gravity; seriousness Greece 19, 309 guarantees and assurances of non-​ repetition 238, 239n.56, 254 Guatemala 20, 302 guilt 118, 203, 206 Habré, Hissène  allegations 100 investigation and prosecution or extradition 101, 112, 200, 239 invocation of responsibility xvi, 252 jurisdiction 283 satisfaction 243 standards of proof 129 Hague Convention iv 187 Hague Convention xii 20 harm 68, 110, 119, 232, 266, 273, 320 Hart, H. L. A. 36 heads of government 290, 323 heads of State 290, 293, 295, 301, 305, 323 High Court of International Justice 23

359 high State officials see State officials, high Honduras 20 hostes humani generis xi, 22 House of Lords (UK) 217, 301 human dignity 244 human rights violations 187, 241, 244 IACtHR (Inter-​American Court of Human Rights) 121, 187 icj Statute 318 ictr (International Criminal Tribunal for Rwanda) 18, 27, 135, 140, 153, 291 ictr Statute 235 icty see International Criminal Tribunal for the former Yugoslavia (icty) icty Statute 235 ignorance xi immunity see also inviolability attribution 224–​228, 340 consular 296n.38 diplomatic 296n.38 domestic courts 87, 293–​295, 299–​304, 309–​310 forms 62 international courts and tribunals 291–​ 293, 297–​299 inviolability 304–​307 ratione materiae 224–​228, 295–​304, 340–​341 ratione personae 221, 290 sovereign 294, 296, 307, 310–​312, 340, 343 State immunity 59, 87, 181, 307–​313 State organs 295–​304, 343, 349 imprisonment see deprivation of liberty impunity xi, xiii, 49, 250 incapacitation 231, 321 inchoate offences 162–​168, 320 incitement 167–​168, 320 indictment 306 individual responsibility  duality of responsibility 30–​35 independent 18, 25, 29, 32–​33 international crimes 21–​29, 348 modes of attribution 133–​168, 307–​321 secondary rules 58–​59, 61–​62, 133–​134, 318–​324 State responsibility 105–​113 injured States 60, 241, 250, 253, 333 inquiries 100, 112 see also investigation

360 Index insanity 263 instigation 133, 147, 179, 319 Institut de Droit International 299 instruction, or under the direction or control, of the State 188–​190, 330 insurrection 192, 330 intent see also subjective element assistance 151, 155 attempts 163–​164 commission (crime) 139, 141 criminal 68, 139, 260 defined 69 degrees of 134 encouragement 143–​144, 146–​147 incitement (to genocide) 167 jce 141 State organs 173 Inter-​American Convention on Human Rights 93 Inter-​American Court of Human Rights (IACtHR) 121, 187 international agreements  defined 12n.11 double attribution 113 immunity 291 jurisdiction 44n.44, 279, 281n.17, 288 obligations erga omnes partes 46, 250, 317, 327 peremptory norms 40 International Court of Criminal Justice 24 International Court of Justice (icj)  acts of States 86, 109 attribution 170, 179 burden of proof 117 cessation 238 common legal interest 251 concurrent responsibility 83 consequences for third-​States 248, 332 duality of responsibility xiv, xv, 3, 31, 324, 345 genocide 34, 90, 114, 211 immunity 221, 290, 300, 308, 311 individual and State responsibility 1 individual conduct 97 instruction, or under the direction or control, of the State 189 inviolability 305 invocation of responsibility 250 jurisdiction 16, 284, 287

jus cogens 40, 81 obligations erga omnes 95 reparation 241 secondary rules 54–​55, 195 standards of proof 121, 124, 128 State obligations 46, 49, 51, 77 State organs 179, 181 ultra vires conduct 219 International Criminal Code 26 International Criminal Court (icc) see also Rome Statute (icc) duality of responsibility xv immunity 292, 299 jurisdiction 279 modes of attribution 133, 135, 146–​147, 152, 164 sources of law 176 international criminal law  attribution 77, 107, 133, 168, 170, 203, 319 defenses 60, 261, 272–​278, 322, 342 deterrence and retribution 44 duality of responsibility 4 general principles of law 105, 133, 163, 174–​176, 261, 272–​273, 318, 321–​322 sources of law 173 standards of proof 120 International Criminal Tribunal for Rwanda (ictr) 18, 27, 135, 140, 153, 291 International Criminal Tribunal for the former Yugoslavia (icty)  attribution 191 complementary responsibility 95, 101 consequences 233, 239 crimes of States 90 defenses 268 duality of responsibility 32, 55 elements of crime 65 immunity 291, 298 instruction, or under the direction or control, of the State 189 jurisdiction 27 jus cogens 43 modes of attribution 135, 139, 150, 153, 171 primary rules 78 retribution 231 sources of law 115, 175 standards of proof 125 State obligations 48 State organs 181, 184

Index international humanitarian law see also war crimes defenses 265 deterrence 233 immunity 302 reparation 243 standards of proof 122 State responsibility 32n.126, 32–​33, 196 superior responsibility 156 ultra vires conduct 186 International Law Commission (ilc)  acts of States 110, 204 aggravated State responsibility 90 attempts 163 circumstances precluding wrongfulness 270, 273 codification 16, 26 consequences 238, 240, 246 consequences for third-​States 246–​250, 253–​254, 333 crimes of States 88 duality of responsibility 31, 34, 349 immunity 299, 304 invocation of responsibility 252 obligations erga omnes 47 prevention and punishment 50, 102 primary and secondary rules, distinguished 36 secondary rules 54, 57–​58 State obligations 95, 99 State organs 179 State responsibility 76–​77 ultra vires conduct 185 International Military Tribunal (imt) at Nuremberg  crimes of States 89 duality of responsibility 2, 324, 347 immunity 297 international crimes 3, 30, 43, 234 jurisdiction 25, 223 penalties 235 secondary rules 202 International Military Tribunal (imt) for the Far East 235, 297 International Prize Court 20 International Residual Mechanism for Criminal Tribunals (mict) 28, 236 internationally wrongful acts 

361 circumstances precluding wrongfulness 269 consequences 59, 237–​243, 254, 331 crimes of States 87–​90 duality of responsibility 33, 81 fault 203 intent 173 jurisdiction 61, 284–​286 law of State responsibility 17 primary rules 77–​81 seriousness 91–​92 State responsibility 55, 58, 76, 178, 325 intoxication 262, 322 see also defenses investigation 43, 51, 99, 101, 112, 200 see also allegations inviolability 304–​307, 323 see also immunity invocation of responsibility 285, 333, 351 see also standing Iran 193 Iran-​U.S. Claims Tribunal 178 Israel xviii, 283, 295, 300 Italy 181, 309 Japan 89 Jessberger, Florian 210 joint criminal enterprise (jce) 138–​139, 154, 319 Jordan 306 junta 218 jurisdiction  categories 279 consent 334 consequences 59, 61 defenses 267 duality of responsibility 214 immunity 62, 290, 307, 310, 312, 323, 340 individuals 279–​283 international courts and tribunals 297, 300 international crimes 322 inviolability 304 rules 286–​289 sources of law 115 States 284–​286 third-​States 245, 332 universality, principle of 288, 303, 342, 349 Jurisdictional Immunities of the State (icj) 83, 87, 181, 194, 211, 308, 311

362 Index jus cogens  aggravated State responsibility 91 circumstances precluding wrongfulness 272 consequences for third-​States 59, 246 crimes of States 88–​89 defenses 61, 268, 274, 322 immunity 295, 301 international crimes 38, 220, 272–​276 jurisdiction 62, 284 obligations erga omnes 48, 49n.64, 94 reparation 240 secondary rules 57, 195 standards of proof 129 State organs 226 State responsibility 81, 90 jus dispositivum 89 justifications and excuses 262, 265–​269, 274–​275, 322, 334, 342 see also defenses Kellogg-​Briand Pact 15 Kelsen, Hans 205 Kenya Court of Appeal 302 Khomeini, Ayatollah 193 knowledge see also subjective element actual 159 constructive 74n.38, 159 genocide 171 modes of attribution 141, 144, 146, 151, 155 Kupreškić et al. (icty) 175 Lauterpacht, Hersch 40 Law Lords 294, 301 see also House of Lords (UK) law of State responsibility  attribution 107, 134, 170, 178, 205, 211, 339, 346 breach 77, 106, 325–​329, 336–​338 circumstances precluding wrongfulness 60, 272–​278, 342 collective responsibility 206 consequences 255 internationally wrongful acts 76 secondary rules 59 State sovereignty 14 Westphalian system 11, 30 lawfulness 185, 216, 219, 248, 267, 276, 284, 309, 333

laws of war see international humanitarian law leaders xi, 86, 157 see also superior responsibility leadership crime 86, 277n.92 see also aggression League of Nations 15, 19, 23–​24 legal objects 18, 21 legal personality 17, 21, 23, 25, 180, 318 legal personality, artificial 3n.7, 18n.41, 208, 346 legal positivism 11, 21, 30 legal possession 15 legal subjects 11, 18, 21, 111, 210, 227, 318 legalism 206 Leipzig Trials 23 lex specialis 56, 195 liability see also international criminal law; modes of attribution civil 88n.59, 341 criminal 106, 339 individual 210, 346 modes of 106, 108, 134 Libya 295 Llandovery Castle 264 London Agreement 25 malice 203 see also fault Marcos, Ferdinand 218 Marcos–​Manotoc, Imee 218 material element see objective element Mauritius 301 Mavrommatis Palestine Concessions Case (pcij) 19 mens rea see subjective element mental element see subjective element mental incapacity 262, 322 see also defenses mict (International Residual Mechanism for Criminal Tribunals) 28, 236 Military and Paramilitary Activities in and against Nicaragua (icj) 189 Milošević, Slobodan 306 ministers of foreign affairs 290, 294–​295, 305, 323 minorities protection system 19 mistake of fact 264 see also defenses mistake of law 264 see also defenses mitigation 261, 269, 275, 322

Index Mixed Arbitral Tribunals 20 Mladić, Ratko 239 modes of attribution see also assistance; commission; encouragement; liability; superior responsibility individual criminal responsibility 133, 168, 318–​321 State responsibility 171, 173–​177, 179, 329–​331 Moloto, Bakone 172 Morissette 65 Muslims 101 Myanmar xv, 170, 244, 253–​254 Namibia 249 nationality 19, 61, 100, 280, 322 natural persons 180 Ndombasi, Yerodia Abdoulaye 283, 294 necessity 271, 278, 334 negligence 68, 73, 105, 159, 318 see also subjective element Netherlands, the xvii, 23 Nezzar, Kahled 218, 302 Nicaragua 20 non-​maintenance 248, 333, 351 non-​recognition 248, 351 non-​repetition 254 normative differentiation 89 nullum crimen sine lege 114n.47, 175 Nuremberg see International Military Tribunal (imt) at Nuremberg objective element see also elements of crime aspects 66, 105, 318 assistance 150, 155 attempts 164 commission (crime) 136 conspiracy 166 defenses 274 encouragement 142, 144–​145, 147 general principles of law 65 incitement 167 secondary rules 168 State responsibility 77, 84, 111, 325, 336 superior responsibility 159 obligations erga omnes see erga omnes obligations

363 official capacity 216, 303, 310, 339 see also State organs; under color of law onus probandi incumbit actori 117 opinio juris 12, 173 Oppenheim, Lassa 13 ordering 133, 145, 319 ordre international public 40 Ould Dah 301 par in parem non habet imperium 287, 294, 307 participation 134, 168–​170, 202, 204, 210–​211 passive personality 61, 280, 322 pcij (Permanent Court of International Justice) 11, 15, 17, 24, 178, 240, 280 Peace of Westphalia 11 penalties  double attribution 209 forms 59 international crimes 235–​237 purpose 321 standards of proof 119, 127 State responsibility 255 peremptory norms see jus cogens Perišić (icty) 150, 171 Permanent Court of International Justice (pcij) 11, 15, 17, 24, 178, 240, 280 perpetration see commission (crime) persecution xvi persuasion (burden of proof) 119, 125 Philippines, the 218 Pinochet 294, 301 Pinochet, Augusto xviii, 217, 283, 294 piracy jure gentium 21, 40–​41, 44, 281 planning 133, 143, 277, 319 pleas 273 plunder 267 Poland 309 preparation 277 preponderance of the evidence 118 prescriptive jurisdiction 280–​281, 322 presidents 295, 305 Pre-​Trial Chamber(s) (icc) 176, 292 prevention and punishment  complementary responsibility 95, 101–​ 102, 327 concurrent responsibility 97 duties of superiors 160

364 Index prevention and punishment (cont.) individual conduct 112, 196, 336 reparation 244 standards of proof 128 State obligations xv, 35, 50, 78, 317, 332 superior responsibility 157, 160 primacy of the State 11–​13 primary rules  aggravated State responsibility 91 complementary responsibility 94 concurrent responsibility 81 consequences for third-​States 245, 332 double attribution 207 duality of responsibility 38–​53, 317 immunity 227, 310 individual, applicability to the 38–​46 secondary rules 53–​58 principals 168, 203 principle of universality  immunity 313 jurisdiction over individuals 61, 280, 286, 323, 349 jurisdiction over States 288, 335 piracy jure gentium 22 Principles of International Law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal 26 proportionality 232, 240, 266, 269n.49, 278 prosecution  burden of proof 118 dual responsibility 79 standards of proof 126 State obligations 99, 281, 288, 328, 343 protected interests 68 protective personality 61, 280 punishment see also prevention and punishment defenses 261, 275 individual 65, 205, 322, 348 international law 25, 31, 347 purpose 231, 321 purpose (subjective element) 68–​69, 105, 154, 318 Qaddafi, Moammar 306 Questions Relating to the Obligation to Prosecute or Extradite (icj)  actions and omissions 199

allegations 100–​101, 112 beneficiaries 254 cessation 239 immunity 300 invocation of responsibility xvi, 250–​252 obligations erga omnes 49, 52, 100 satisfaction 243 standards of proof 129 racial discrimination 41, 45, 51, 53n.79 recklessness 68, 71, 105, 151, 318 see also subjective element rehabilitation 234, 321 reparation 13, 16, 59, 93, 104, 240–​245, 254–​255, 259–​260, 331–​332, 341 see also compensation; restitution; satisfaction reprisals 14, 14n.20 Republika Srpska 172 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (icj) 52 residual accessory liability 154, 320 restitution 240, 244, 259, 331 retribution 44, 59, 231, 255, 260, 321, 341 risk 71, 73, 137, 142, 161, 232 Rohingya xvi, 244, 253–​254 Rome Statute (icc)  assistance 149, 152, 154, 320 attempts 163–​164 commission (crime) 136 concurrent responsibility 34, 82 conspiracy 165 defenses 267 double attribution 207 duality of responsibility 32 encouragement 145–​146, 148 immunity 292, 298 incitement 167 individual responsibility 54 jce 140 jurisdiction xvii, 27 modes of attribution 133 objective element 66 penalties 236 sources of law 175 standards of proof 120 subjective element 69–​70, 72 superior responsibility 159

Index S.S. Lotus (pcij) 11, 280 satisfaction 242, 259, 332 savings clauses 34, 79, 82, 207, 247 scsl (Special Court for Sierra Leone) 28, 140, 236, 291, 298 Second Resolution (Advisory Committee of Jurists) 23 Second World War see World War ii secondary rules  attribution 108, 113, 134, 168, 202–​207, 308, 319, 338, 346 consequences 59–​62 defenses 275 defined 36 duality of responsibility 33, 37–​38, 317, 335 elements of crime 168 immunity 308, 310 individual and State responsibility 53–​ 59, 105 jurisdiction 285, 288 modalities of participation 168 State responsibility 195–​201, 325, 345 self-​defense see also defenses individual criminal responsibility 265, 276–​278, 322 State responsibility 270, 276–​278, 334 self-​help xvi, 13, 15 Senegal see Habré, Hissène sentencing 232, 264, 269 Serbia  attribution 181, 190–​192 complementary responsibility 101 double attribution 83 genocide 110 obligations erga omnes 97, 239, 243, 259 State organs 184 seriousness 91, 127, 208, 246–​247, 324, 332–​333, 346 see also aggravated State responsibility Sharon, Ariel 295 Shi, Jiuyong 223 Sierra Leone 292 Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction (ilc) 304 slavery 41, 44, 47 Slovenia 309 social contract 348, 351

365 sources of law 12, 113, 116, 173–​177, 321 South Africa 249, 302 South West Africa (icj) 249 Spain xviii, 283 Spanish Supreme Court 302 Special Court for Sierra Leone (scsl) 28, 140, 236, 291, 298 special interest 251 see also invocation of responsibility special rapporteurs 36, 40, 48, 225 Special Tribunal for Lebanon (stl) 28, 140 Srebrenica 181, 243–​244 standards of proof  actions and omissions 201 burden of proof 117–​118 civil law 119 common law 118 exceptional gravity 121, 127–​129, 337 formal standards 121 individual and State responsibility 124–​129 variability 118 standing 60, 249–​250, 285 see also invocation of responsibility State criminality 42, 87–​90, 205, 256, 327, 339 State officials, high 290, 293, 304, 311, 323, 343 see also agents of the State; heads of government; heads of State; ministers of foreign affairs State organs see also agents of the State abuses of State authority 257 acts of States 59, 109 attribution 171, 179–​183, 330 collective responsibility 206 de facto 182–​184, 330 double attribution 83, 339 immunity 299, 301, 310, 323, 340, 343, 349 official capacity 89, 216, 296 private conduct 221, 224 self-​defense 277 State immunity 308 ultra vires conduct 185–​186, 226 under color of law 186, 188, 218–​220 State policy 196 State responsibility  attribution 169–​171, 178–​201, 329–​331, 338–​341 breach 76–​104, 105–​116, 325–​329, 336–​338 conduct 326, 328

366 Index State responsibility (cont.) consequences 254–​260 crimes of States 87–​90 defenses 60, 272–​278, 325–​329 duality of responsibility 14–​17, 105–​113, 317, 335 elements of 76–​77 fault 107, 110, 203–​204 individual conduct 178–​179, 346 international crimes 97–​104 jurisdiction 16, 284–​286, 334 obligations erga omnes 94–​97 primary rules 77–​86 secondary rules 53–​59, 325 State sovereignty  acts of States 26, 86, 347 immunity 307–​313 jurisdiction 280, 285, 287 law of State responsibility 14, 30 stl (Special Tribunal for Lebanon) 28, 140 stratification of responsibility 91, 111, 247, 257, 327 subjective element see also elements of crime; intent assistance 151, 155 commission (crime) 138 defenses 274 encouragement 142, 144, 146, 148 general principles of law 58, 65, 105 inchoate offences 165–​167 individual responsibility 68–​75, 318 secondary rules 107, 168 State responsibility 77, 84, 111, 204, 325, 336, 339 superior responsibility 158 substantial contribution standard 144–​145, 147 see also direct effect standard Sudan 295, 302 superior orders 267, 322 superior responsibility 58, 74, 133, 155–​ 162, 320 Supreme Court of Canada 231 Supreme Court of Israel 300 Supreme Court of South Africa 295, 302 Suriname 217, 301 Syria xvii Tadić (icty) 32, 140 Taylor (scsl) 298 Taylor, Charles 293, 306

tenure 291, 296 see also immunity: ratione personae territory 15, 61, 100, 192, 280, 286 terrorism 24, 41, 45, 295, 302 Terrorism Convention 24 Third Committee of the Assembly of the League of Nations 24 threats 266 Tokyo xi, 89 tort law 273, 273n.74 torture see also Torture Convention allegations 113 common legal interest 250 immunity 300–​302 individual responsibility 41, 45 investigation and prosecution or extradition 100–​101, 196 inviolability 305 jus cogens 51 official capacity 217 prevention and punishment 78, 95 standards of proof 129 State responsibility 48, 50, 329 Torture Convention see also torture cessation 239 invocation of responsibility xvi, xvii, 252 penalties 235 satisfaction 243 transnational legal process xii treaty law 12, 35, 39, 51, 94, 114, 327 Treaty of Versailles 22 Trial Chamber (icc) 162, 176 Trial Chamber (ictr) 18, 233 Trial Chamber (icty)  defenses 265 duality of responsibility 32–​33, 196 immunity 298 jus cogens 43 obligations erga omnes 48 prevention and punishment 95 retribution 231 tribunals see courts and tribunals, international Uganda 186 ultra vires conduct 185–​188, 218–​220, 222, 303, 340 see also State organs under color of law 186, 188, 218–​220, 222, 226, 330, 340 see also official capacity; State organs

367

Index United Kingdom 19, 283, 294, 301, 309 United Nations xvi, 292 United Nations Charter 42, 248, 268, 277 United Nations General Assembly 16, 26 United Nations Security Council 27, 279, 291 United States 65, 193, 217, 309 United States Diplomatic and Consular Staff in Tehran (icj) 193 universal jurisdiction see principle of universality vclt (Vienna Convention on the Law of Treaties) 39–​40, 42 Vereshchetin, V. S. 223 Versailles, Treaty of 22 victims 93, 100, 259 Vienna Convention on the Law of Treaties (vclt) 39–​40, 42 vigilantism xviii volitional element 70, 72 see also intent; subjective element war crimes  attendant circumstances 67

defenses 265–​266, 269 defined 44 double attribution 83 duality of responsibility xi immunity 218, 299n.57 individual responsibility 25, 44, 54 jurisdiction 28, 281n.13 jus cogens 41 State responsibility 83, 186–​187 Watts, Arthur 208, 346 Werle, Gerhard 210 Westphalian system 30 Wilhelm ii 22 witness summonses 305 World War i 20, 22, 23n.69 World War ii  abuse of State authority xv attempts 163 conspiracy 165 immunity 83n.37, 212n.40, 309, 323 individual responsibility 25, 30 jce 139 jus cogens 42 State responsibility 16, 205, 324 superior responsibility 157