Jump to Content Jump to Main Navigation
The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett (Assistant), Kate (20th May 2010)

Part IV The Content of International Responsibility, Ch.50 The ‘Transparency’ of the State

Rafaëlle Maison

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant)

Subject(s):
Responsibility of states — Reparations — International courts and tribunals, jurisdiction — Immunity from jurisdiction, states — Disarmament — Countermeasures

(p. 717) Chapter 50  The ‘Transparency’ of the State

Introduction

In its decision of 1 October 1946, the Nuremburg International Military Tribunal stated:

Many other authorities could be quoted, but enough has been said to show that individuals 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.1

This formula, which has remained famous, illustrates perfectly what may be referred to as ‘State transparency’ as a possible consequence of international crime. The accused all claimed to have only carried out the will of the Nazi State—a version of the ‘act of State’ defence. Their claim was rejected.

The phenomenon of State transparency has transformed the classical machinery of international responsibility. When a State commits an international crime (or, according to the terms of ILC Articles of 2001, a serious breach of an obligation under a peremptory norm of general international law), international law may operate, in part, without allocating the conduct of individual agents to the State in question. Instead of, or in addition to, holding the State, with its separate legal personality, responsible for the crime, which can result in collective obligations of a State to make reparation or even in sanctions against the State, the State’s separate legal personality is sometimes ignored in that agents of the State can be required to answer personally (p. 718) before a criminal tribunal for official acts which played a part in the crime without their official status being an obstacle to conviction. The internal organization of the State is no barrier; internal transactions of the State thereby become, in principle, apparent, allowing international law to prosecute directly the participating officials. The State’s separate legal personality, which alone allows for the attribution of acts of agents to the State, is to this extent disregarded. The Supreme Court of Israel, in the Eichmann case, indicated in the same manner that an agent of the State’s position ‘may be compared with that of a person who, having committed an offence in the interests of a corporation which he represents, is not permitted to hide behind the collective responsibility of the corporation itself ’.2

The phenomenon of State transparency (which constitutes an exceptional modification of the classical machinery of international responsibility, by which individual agents would be, in principle, spared) has two applications in substantive law which are taken only partially into account by the work of the ILC on State responsibility. First, when the prosecution of agents of the State can result in the creation of international criminal tribunals; second, it is sometimes also instituted before foreign tribunals, thereby constituting a more decentralized form of prosecution.

International prosecutions

Prosecutions instituted before international tribunals can impinge upon State sovereignty in that the resulting transparency is either imposed or accepted beforehand. In both cases, the outcome of criminal proceedings partially transforms the relationship of international responsibility since an agent of the State (more particularly, the person in the position of authority in a State) is directly subjected to an international criminal sanction. In this regard, we are presented with an aggravated form of satisfaction arising out of the commission of a crime.

(a)  The creation of international criminal tribunals

Two principal models govern the creation of international criminal tribunals. In the case of special tribunals (for example, the Nuremberg and Tokyo International Military Tribunals and the International Criminal Tribunals for the former Yugoslavia and for Rwanda) the agreement of the State against whose agents prosecutions are instituted was not sought beforehand. Conversely, the International Criminal Court was created using a consensual model, even though its jurisdiction is compulsory in certain cases. These various models of creation illustrate the processes by which State transparency is created.

When the Nuremberg and the Tokyo Tribunals were created,3 the consent of Germany and Japan to the prosecution of their agents for official acts was not specifically sought. Similarly, the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda by mandatory Security Council resolutions, adopted under Chapter VII (p. 719) of the United Nations Charter,4 did not require the agreement of the States concerned. None of these tribunals, in examining their own competence in response to defence contentions, considered such agreement necessary. In this regard, these tribunals distinguish themselves quite radically from those tribunals created or considered as having jurisdiction over the crimes committed in Cambodia and Sierra Leone where United Nations intervention appears more like assistance with an internal process of prosecution.

One can compare the creation of international criminal tribunals on an authoritarian model to a decision by the international community to prosecute. In these cases, the criminal conduct for which punishment is sought is already more or less well-defined in the instruments creating the tribunals, thereby restraining the prosecutors’ leeway considerably. The creation ad hoc of international tribunals is already, in itself, a form of sanction against a State against whose agents prosecutions are instituted. Respect for the State’s internal organization is ignored, together with the classical principle of the necessity of State consent to jurisdiction. Punishment of individuals is not, therefore, justified by a universal criminal law, only partially existent when these tribunals were created. Rather, this punishment is justified by a collective reaction to a State wrong, which though directed at a State dissolves its separate legal personality.

Conversely, by ratifying the Rome Statute creating the International Criminal Court,5 certain States have accepted in advance that the commission of these same international crimes can result in the personal liability of those responsible. This important development means that criminal liability no longer depends upon a sanction against a State (a decision to prosecute) but rather upon a treaty, which itself defines the crimes within the competence of the Court. This can be understood as an acknowledgement of the transformation of the relationship of responsibility arising from the commission of these crimes. It nonetheless remains that even without having committed themselves to the Rome Statute, States can still be subjected to the compulsory jurisdiction of the Court in the circumstances provided for in article 12(2) of its Statute. The Treaty of Rome thus, to a certain extent, produces effects for third-party States. This exceptional phenomenon can be justified if one takes the Statute to be a codification of the customary sanctioning practices described above.

(b)  The evolution of the responsibility relationship

Commenting on the Nuremberg trial in 1948, Georges Scelle wrote of a ‘complete reversal of the former mechanism’ of international responsibility.6 Agents of the State may now be convicted for ‘personal fault’ consisting in the violation of international criminal standards. The State’s collective responsibility, extending notably to reparation for loss suffered, continues to exist, but in a secondary and subsidiary manner. Prior to the Second World War, other commentators had made the case for application at the international level of the dual form of responsibility sometimes recognized in domestic law in order to punish the criminal conduct of legal persons, viz the responsibility of the corporate personality itself and the personal responsibility of the individuals in charge of ‘the management or the oversight of the interests of the corporate person’.7

(p. 720) A formula of this type appears to have been introduced into substantive law by international criminal proceedings. It is clearly more an example of an evolutionary development than of a ‘complete reversal’ of the former machinery. International prosecutions make the State’s legal status disappear in order to prosecute an individual, in contrast to the classical operation of international law where as soon as a wrongful act is attributed to a State the relationship of responsibility arises and the State itself is held to account to the exclusion of the individual agent. However, ‘State transparency’ within an international criminal trial does not necessarily persist outside of it: various collective mechanisms of sanction or of reparation can precede or follow the criminal sanction of an individual. Examples include the embargo measures adopted against the Federal Republic of Yugoslavia or the reparation and disarmament measures required of Germany and Japan after the Second World War.

Theoretically, individual prosecutions may be regarded as a form of satisfaction integrated within a wider regime of reparation for crime of State. Following the reasoning developed by Special Rapporteur Arangio-Ruiz, one can consider that a regime of individual criminal liability has a function and expressions close to those of satisfaction in the general theory of international responsibility.8 First, its function appears to be that of assuaging the distress created by crime (with no question, however, though of compensating for loss suffered). Second, its expression, which aims to punish the authors of a wrongful act, approximates—or at least reinforces—the criminal or disciplinary sanctions sometimes demanded of a State within the context of satisfaction.

Prosecution before a foreign judge

Prosecutions instituted against agents of the State before a foreign court for crimes that could incur State responsibility represent another manifestation of the principle of ‘State transparency’. As soon as wrongful (eg tortious) conduct can be assimilated to official acts, an agent of the State should be able to invoke successfully the immunity of the State itself. But the practice of foreign courts, ruling on the basis of specific international conventions or of their domestic law which, in certain cases, confers upon them a universal competence, tends to reject the logic of immunity. There are various justifications for this tendency. It seems that respect for diplomatic immunities, where applicable, is a limiting factor, though this is disputed.

(a)  Justifications for denying State immunity in case of international crimes

Two principal explanations are advanced to justify allowing domestic criminal proceedings against foreign agents who acted within the scope of their official function. First, ignoring the immunity that agents could benefit from (functional immunity) could be justified as a countermeasure. The rejection of the rule of immunity, the rule not being disputed in this first analysis, would constitute a wrongful act. In accordance, however, with the classical theory of countermeasures this wrong would be overridden, by the intention to respond to a prior wrongful act on the part of the State whose agent is prosecuted. State transparency would be, in effect, a reprisal against a wrongful act committed by a State, a measure taken at the time of the decision to ignore any functional immunity rather than at the time of the (p. 721) actual punishment of the agent. This explanation, advanced by Giuseppe Sperduti in the context of the prosecution of enemy agents for war crimes at the close of the Second World War,9 has been defended by Flavia Lattanzi in the context of prosecutions instituted on the basis of international treaties providing expressly for the competence of domestic judges. For Lattanzi:

in the case of particularly serious conduct such as war crimes, crimes against peace or against humanity, there automatically arises as a consequence to be borne by a State […] sanctions of a privative character. In this case, the functioning of general international law standards attributing a subjective right with regard to the organisation of the State will be suspended with regard to the State responsible, standards which would have prohibited the prosecution by foreign States of individuals for activities carried out as organs of the State. The potential for such States to prosecute these organs of a State, and their actual prosecution represent precisely the exercise of this privative guarantee, which infringes the right of the State to which the individual-organ belongs.10

This explanation seems attractive. However, it has two major drawbacks. First, it will not always be easy to discover in domestic criminal proceedings, especially when initiated by individual victims, the intention on the part of the forum State to react to a prior wrongful act of the State whose agent is prosecuted. Second, and in particular, it is difficult to affirm that the exercise of criminal jurisdiction recognized by treaty constitutes an internationally wrongful act, except if one holds (disputably) that this jurisdiction could only be exercised against agents coming from States that have also ratified the treaty in question. In the case of prosecutions instituted against agents coming from States not party to the conventions in question, the countermeasure theory could, therefore, continue to be maintainable.

The second justification for the rejection of functional immunity is to be preferred. In this second type of argument, stress is placed upon a weakening of the rule of immunity, which no longer applies when acts were carried out in the context of official acts of a State but, however, constitute international crimes. It is sometimes maintained that acts of this nature cannot seriously be considered as official acts, which justifies the prosecution. In other cases, and perhaps more convincingly, one emphasizes that this type of official act, seriously wrongful under international law, cannot claim to be covered by the rule of immunity, the scope of which is more or less extensive. The long-standing theory11 restricting the scope of functional immunity is reflected in contemporary practice. The settling of the Lockerbie cases and the position adopted by the Security Council against Libya can be considered illustrations of this restriction.12 The opinion expressed by certain members of the House of Lords in the Pinochet case shows that the theory is also reflected in the practice of national tribunals. It was held in that case that, faced with systematic criminal conduct and widespread crimes of State, the rule of immunity could no longer be applied in favour of a former head of State.13 The restrictive theory of immunity has also (p. 722) been coherently affirmed in the joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case.14 Immunity constitutes an exception to a jurisdictional competence that should, in principle, be exercisable. This exception, they stressed, is only justified if it protects an interest recognized by the international community. Reiterating that the scope of State immunity, insofar as civil jurisdiction is concerned, has been limited for a long time, they specified that the same could be true if the functional immunity of agents is intended to hinder the prosecution of a certain number of serious crimes. However, this heralded weakening of the immunity rule, or this new limitation on its scope, appears to find its limits in the in the immunity ratione personae of diplomatic personnel and certain other high agents of the State.

(b)  Limits on decentralized prosecutions

We have seen that the prosecution of agents of the State before domestic courts for the commission of infractions assimilated to crimes of State constitutes a transformation of the classical mechanisms of responsibility. This type of disagreement could in every case be elevated to the intergovernmental level for settlement by negotiation; the notion of an erga omnes obligation allows even a State not directly injured to invoke a relationship of responsibility if it so chooses. It is obvious that in practice, however, States not directly injured will hesitate before taking such steps unless they serve a political interest. Without a centralized international reaction, therefore, it is very often the adoption of a not-strictly-territorial, or perhaps even universal, principle of criminal jurisdiction, combined with the access to courts of victims, that renders liability for serious breaches of obligations under peremptory norms of general international law effective.

At the same time, however, it is clear that prosecution by domestic judges on a decentralized model is often initiated by victims. Such prosecution does not always correspond to the will of the executive organs of the forum State, the principal actors in inter-State relations. They, ideally, wish to obtain the cessation of the State’s wrongful act, or reparation for it, by traditional diplomatic means. Often, however, prosecutions set in motion before a foreign judge are directed at agents exercising diplomatic functions for the simple reason that some of these agents, in addition to being capable of being held responsible for the crimes committed (prime minister, head of State), are within reach, due to their travel, of measures of restraint (notably, arrest) that a domestic judge can utilize within the territory of the forum. These measures can possibly run directly counter to the executive will and jeopardize any means of diplomatic settlement. We are thus presented with a conflict between two interests, both apparently legitimate—the preservation of normal relations between States on the one hand, the prosecution of crimes of State on the other—or between the two logics of dispute settlement potentially serving the same legitimate interest, viz suppression of and reparation for the wrong—diplomatic on the one hand, criminal on the other. As emphasized by Judges Higgins, Kooijmans, and Buergenthal, the rule of immunity only resolves, provisionally, in one sense or the other, the conflict of interests. In this case, current practice tends towards the preservation of the rule of immunity in order to preserve good diplomatic relations.

(p. 723) Such practice is reflected in contemporary national case law. The French Cour de cassation affirmed the immunity of a serving Head of State in a case concerning the Libyan Head of State.15 The Belgian Cour de cassation upheld the immunity of the Israeli head of government.16 The International Court of Justice established the principle of immunity for a Minister of Foreign Affairs in office in the Arrest Warrant case. The Court’s judgment, however, remains rather ambiguous in respect of the scope of the immunity, since the Court seemed to exclude the possibility of trying a former Minister for Foreign Affairs for acts carried out within the context of his official acts whilst in office, without, however, providing a clear justification for this disputable conclusion.17

In her dissenting opinion, Judge ad hoc van den Wyngaert noted that, contrary to classical diplomatic law, under which a margin of action is safeguarded in favour of the host State when a diplomat has broken domestic criminal law, the principle of an absolute immunity in favour of Heads of State, heads of government and Ministers for Foreign Affairs, leaves States wishing to institute proceedings considerably impoverished.18 The protection of an agent in office can, furthermore, have perverse effects: preservation in office for a long time and, with it, in consequence, the spectre of impunity. Faced with the problematic consequences, of the immunity rule, one must ask whether the exercise of criminal proceedings in a foreign State would necessarily seriously damage the inter-State relations the rule aims to preserve. In this regard, one notes that the power of enforcement of the forum State remains very limited and that the State whose agent is prosecuted retains, in any case, the power to appoint other representatives in order to conduct its international relations where they require travel abroad. The interest in preserving the immunity of agents exercising duties of State representation should not, therefore, be overestimated. Substantive law may well continue in this regard to evolve in the direction of a restriction of immunity, at the risk, however, of provoking a more radical questioning of decentralized prosecutions, which are open to abuse and do not necessarily constitute the ideal means of responding to a crime of State.

Further reading

Footnotes:

The Trial of the Major War Criminals before the International Military Tribunal (Nuremberg, International Military Tribunal, 1949), Vol I, 235.

Judgment of 29 May 1962 (1968) 36 ILR 310.

See Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed and entered into force 8 August 1945, 82 UNTS 279; and see proclamation by General MacArthur of 19 January 1946, Charter of the International Military Tribunal for the Far East, 19 January 1946 (as amended 26 April 1946), 4 Bevans 21.

Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 25 May 1993, 32 ILM 1203; Statute of the International Tribunal for Rwanda, SC Res 955, 8 November 1994, 33 ILM 1598.

Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90.

G Scelle, Cours de droit international public (Paris, Domat-Montchrestien, 1948), 969–972.

V Pella, Rapport pour l’association internationale de droit pénal, Actes du deuxième congrès international de droit pénal (Paris, Librairie des juris-classeurs, 1930), 584–585.

G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3.

G Sperduti, L’individuo nel diritto internazionale, Contributo all’interpretazione del diritto internazionale secondo il principio dell’effettività (Milano, Giuffrè, 1950), 175–176.

10  F Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale (Milano, Giuffrè, 1983), 357.

11  For example, C Lombois, ‘Immunité, exterritorialité et droit d’asile en droit pénal international’ (1978) 49 Revue internationale de droit pénal 509.

12  On the Security Council’s position, G Ziccardi Capaldo, ‘Verticalità della comunità internazionale e Nazioni Unite. Un riesame del caso Lockerbie’, in P Picone (ed), Interventi delle Nazioni Unite (Padova, Cedam, 1995), 61.

13  See on this point the positions of the various members of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (Nos 1 & 3), 119 ILR 50, 135.

14  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, 84–85 (paras 70–75).

15  France, Cour de cassation, Chambre criminelle, arrêt du 13 mars 2001.

16  Belgium, Cour de cassation, section française, 2ème Chambre, 12 février 2003.

17  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 26–27 (para 61).

18  Dissenting Opinion of Judge ad hoc van den Wyngaert, ibid, 143–151 (paras 11–23).