Volume II, s.5 The Statute and General International Law, 26 International Criminal Responsibility of the Individual and International Responsibility of the State
Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones
- Individual criminal responsibility — Crimes against humanity — Aggression — Genocide — War crimes — Responsibility of states
(p. 1085) 26 International Criminal Responsibility of the Individual and International Responsibility of the State
‘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 familiar affirmation by the Nuremberg Tribunal mandated by the Allies to judge high-ranking Nazis for the crimes they had ordered and organized in the name of the Third Reich brings out from the outset the links that exist between criminal individuals and the States on whose behalf they act.
(p. 1086) According to the classical rules of the law on international responsibility of States,2 imputing to a State an internationally wrongful act committed by one of its organs amounted in principle to concentrating responsibility on the public person, ipso facto ignoring that of the individual(s) who actually acted on its behalf. The individual here, as in general terms in the whole of classical voluntarist international law before the international affirmation of rights of the human person (1945), does not exist independently of the State to which he is attached by the bond of nationality. This is all the more so where he is perceived not just as a national of the State but as one of its organs, de iure or de facto, acting not on his own personal behalf but for the State apparatus he serves.
What has sometimes been called the ‘Nuremberg Revolution’ reverses this logic, even if war crimes were already earlier considered in terms of their individualized authors. Moreover, the individual responsibility of a Head of State had already been contemplated in Article 227 of the Treaty of Versailles, which provided for Wilhelm II to be accused and judged: ‘The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.’ It is still the case that the Nazi leaders were judged as individuals, for the crimes they had themselves decided, commanded, or organized, even if the position each of them occupied within the State apparatus was carefully analysed by the Tribunal.
A similar approach was to be found in the judgment of the Tokyo Tribunal. The Tokyo Judgment is pertinent since it shows, indirectly, that at Nuremberg the German State criminals were not (or not solely) judged in the place of a State that Hans Kelsen and Michel Virally claimed, though not without raising heavy criticism, had disappeared by debellatio. In fact while it is true that the Third Reich had disappeared after the defeat, Germany itself was declared liable for war damages. In the same way, the Japanese State, which nobody claimed to have been legally eclipsed in the slightest after the war, was also declared liable as such in international law. Personal condemnation of the Japanese military, therefore, clearly shows that their responsibility was not conceived of as a substitute for that of the State they had served; if the Japanese military leaders were judged, it was indeed first and foremost for acts for which they were being held personally and individually responsible. Their responsibility was distinct from that of the State whose agents they were.
It is of course true that in international law the actions of criminal individuals are most often considered in relation to the nature of the ties these individuals had to the State apparatus or to conflicts in which the State is implicated (see infra, II).
(p. 1087) Accordingly, the new designation of the individual as a person potentially to be held responsible in public international law, today by the Ad Hoc Tribunals set up by the UN Security Council and tomorrow by the International Criminal Court, has ended by designating the individual as a full subject of public international law, eligible to defend his rights, but also to have to render account (respondere) for the breach of obligations incumbent on him vis-à-vis other individuals (see infra, III).
II. Legal Relevance of the Links Held by the Criminal Individual with the State on whose Behalf He or She has Acted
These links may result from the individual’s situation in relation to the State apparatus, or from the nature of the crimes for which he or she is declared responsible.
A. Individual’s Situation in Relation to State Apparatus
This dependency may be exercised by the maintenance of links that the individual’s international criminal responsibility has with the State concerned, de facto and de jure. The relevant facts may in particular concern the individual’s statutory position vis-à-vis the State at the moment the offence was committed. This situation will most often concretely explain the conditions for the individual’s personal participation in a criminal enterprise going beyond him, to the commission of which he has contributed through action of his own. It must however generally be noted that the case law of the ad hoc Tribunals, still more than that of the Nuremberg and Tokyo Tribunals, does not necessarily require the individual’s strict membership in the State apparatus. More broadly, it requires a link of sufficient connection between the action of the individual accused and the collective action attributable to the State he referred to in so acting.
The Statutes of the Nuremberg and Tokyo international military tribunals authorized them to consider only cases of individuals who acted ‘on behalf’ of the Axis countries. This formula, contained in Article 6 of the Statutes of the Nuremberg International Military Tribunal, covers both individual State agents and those who, while not such, de facto acted for the Nazi State. The London Agreement setting up the Nuremberg Tribunal as such was aimed in its preamble only at the ‘major criminals’. The declarations of criminality were to be understood as excluding members of organizations who were unaware of their criminal goals or acts, as well as non-voluntary members. In the new generation of international criminal courts, the Rwanda Tribunal is trying the main members of the Hutu government in power at the time of the genocide in 1994 according to the political responsibilities they then exercised. The International Criminal Tribunal for (p. 1088) the former Yugoslavia, for its part, has ‘the power to prosecute persons responsible for serious violations of international humanitarian law’ (Article 1 of the Statute annexed to Security Council Resolution 827) without restriction to persons occupying a high post in the hierarchy of organs of the State concerned. One thus sees that here it is the nature and legal description of the crimes that count, more than the culprit’s position.
B. De jure Dependence of the Individual’s Responsibility on that of the State
The breaches considered are crimes that constitute internationally wrongful acts liable to be imputed both to a sovereign State and to an individual acting on its behalf.
One must, however, distinguish between two categories of international crimes. On the one hand are those the nature of which implies direct involvement of a State apparatus, or at least a collective organization (about which it should be determined case by case whether it meets the criteria for the State according to public international law). Starting from the list of breaches coming under the competence of the International Criminal Court, one may certainly rank in this category the crime of aggression. The same will be true of most cases of crimes against humanity and genocide. There is by contrast another category of crimes which, while involving direct relations with actions of the State, are liable autonomously to be imputed to an individual. These are war crimes.
1. Aggression, Genocide, and Crimes Against Humanity
According to contemporary international law, even more clearly than under the reign of the Kellogg-Briand Pact,3 the principle of non-recourse to force constitutes a fundamental rule. The International Court of Justice was, moreover, able to find, in the case of Nicaragua versus the United States, that this principle belonged both to the law of the United Nations (Article 2(4) of the Charter) and to general international law.4 There is, more generally, agreement to see the ban on use of force in international relations as a rule of imperative law (jus cogens) even if it contains an exception in the principle of self-defence. As stated, more explicitly, in UN General Assembly Resolution 3314, is that aggression constitutes par excellence a ‘crime’, imputable as such to a State. The conjunction of individual responsibility and State responsibility is thus manifest in connection with aggression.
(p. 1089) Even before the existence of United Nations law and prior to incorporation of the principle stated in Article 2(4) of the Charter into customary law, the Tokyo Tribunal had already handed down numerous condemnations for plotting against peace between 1 January 1928 and 2 September 1945.5
The two International Military Tribunals also handed down a number of condemnations for crimes against peace stricto sensu. This offence, as set out in the Nuremberg Charter, consisted in ‘the planning, preparation, initiation or waging of a war of aggression’ (Art. 6(a)). The same was true of the Tokyo Tribunal.6
It is not within the competence of the ad hoc Tribunals set up by the Security Council to take cognizance of crimes of aggression. By contrast, it is fundamental to note that the International Criminal Court will be competent pursuant to Article 5(1)(d) of its Statute in relation to crimes of aggression. This will at any rate be the case once a definition of aggression has been agreed upon by the States Party.
As of now, this extension of its sphere of competence by comparison with that of the ad hoc Tribunals is reflected in a series of original statutory provisions, including in particular those in Articles 13(b) and 16. They enable the UN Security Council both to ‘trigger’ the Court under Chapter VII of the Charter (Article 13(b)) but also at its sole discretion to defer for a one-year period any action of the Court in relation to such crimes.
The Rome Statute also reflects the notion that the crime of aggression constitutes par excellence, though still very imprecisely as regards the system of application, the archetype of the ‘double crime’, simultaneously a State crime and potentially an individual crime.
Crimes against humanity, and a fortiori the crime of genocide, without necessarily being undertaken by a sovereign State, nonetheless as a general rule have a massive and systematic nature that presupposes collective organization. Thus an ICTY Trial Chamber, ruling on an indictment relating to the general policy of the Bosnian Serbs and the Srebrenica massacre, classified as crimes against humanity and crimes of genocide actions aimed at groups or individuals and proceeding from actions planned and prepared at government level, with a view in this case to creating ‘ethnically pure’ territories.7 A similar statement can be found as to the systematic nature, breadth, and gravity of the crimes committed in other ICTY decisions, such as, for instance, the Rule 61 decision handed down in the so-called (p. 1090) Vukovar case8 or in the Nikolić case on 20 October 1995.9 The relevant Trial Chamber does not, however, derive from these findings that the crimes have a collective nature or any ground of exoneration or even attenuation of the individual responsibility of those who committed those crimes.
For its part the ICTR also found, in the Akayesu case, judged by its Trial Chamber, the breadth and systematic nature of the genocide committed against the Tutsis.10
Such an analysis can again be found in the internal case law relating to crimes against humanity. Thus, in its judgment of 3 June 1988 in the Klaus Barbie case, the French Court of Cassation found that the accused had ‘taken part in the execution of a concerted plan aimed at achieving the deportation or extermination of civilian populations during the war or persecutions for political, racial or religious reasons’, which ‘constitutes … an essential element in the crime against humanity consisting in the fact that the incriminated acts were carried out in systematic fashion by a State practising through these means a policy of ideological hegemony’.11
2. War Crimes
War crimes do not to the same degree show the collusion between the State crime and the individual’s crime. Certainly, crimes committed in the context of armed conflicts fall under the competence of international tribunals only if the latter establish the applicability of the international rules relating to armed conflicts. The ICTR, basing itself on the text of Article 3 common to the four Geneva Conventions, noted in the Akayesu case that the prohibitions stated therein apply to any conflict when it constitutes an armed conflict not presenting an international character.12 The Statute of the ICTY for its part, does contain in its Article 3 a non-exhaustive statement of war crimes presupposing the concerted action of a fighting collectivity, such as the wanton destruction of towns and villages. However, it does not subordinate the criminal prosecution of war crimes to criteria that would forbid the punishment of isolated acts committed by individuals acting spontaneously.
One may under these conditions ask whether Article 8 of the Statute of the International Criminal Court does not in this connection amount to a backward step conceptually. For it states that the court has competence to take cognizance of war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.13
(p. 1091) Be that as it may, it would be wrong to equate the involvement and application of responsibility of individual criminals with mere modalities of international State responsibility for commission of the same acts on a collective scale.
It is certainly the case that the promoters of the various international criminal courts undoubtedly intended, by punishing individuals, also to punish the actions of the State to which the acts may be attributed.14 But there is more to it than that. There is also the individual as such who is persecuted and condemned where he or she voluntarily committed criminal acts in the eyes of contemporary public international law. This responsibility is not solely linked to that of the State he or she served, but also frees itself therefrom to become autonomous, completing the constitution of the individual as a subject of international law.
Identifying the international individual responsibility of natural persons who have committed crimes in international law as manifested in both the statutes and the case law of the International Criminal Tribunals leads to a responsibility system where everything leads one to believe, in the state of incompleteness and of evolution that the matter finds itself in, that it will end by increasingly disassociating the respective responsibility systems for the individual and the State.
The position defended even recently in legal scholarship,15 that the growing affirmation of the international criminal responsibility of individuals is only a way of implementing that of the State on whose behalf they act, displays above all the difficulty these authors have in detaching themselves from the classical conception (pre-1945) that there are no legal persons in international law apart from the State. This conception reduces the individual to an organic dependency on the State, independently of which the individual cannot exist. This sort of view, plainly marked by the ideology intrinsic in classical legal positivism,16 seems increasingly out of step with the actual evolution of law.
(p. 1092) Returing to the foregoing analyses, in particular those relating to the elements of law that still associate the individual’s international responsibility with the State’s,17 there are several findings which while not totally calling it into question nonetheless limit its scope.
First, as was noted earlier, the features allowing the legal description of international crimes like genocide, in more general terms, crimes against humanity or a fortiori crimes of aggression, are features that are partly material and partly psychological. The former (breadth, massiveness, systematic implementation of criminal actions) display chiefly the material dependence of the individual action on collective action. An individual cannot alone carry out a genocide. It is true that to carry out such a design the presence of a collective organization is required, as the only thing able to ensure planning and implementation of an action of genocide, for instance. Accordingly, none of the international texts defining ‘the most serious crimes affecting the whole of the international community’ except for aggression (genocide, crimes against humanity, war crimes) define them by specific reference to the State. The Statute of the International Criminal Court is in no way an exception to this position.
Collective organization does not necessarily mean the work of a State, and the question whether a particular collectivity constitutes a State or not within the meaning of international law remains totally foreign to the legal description of the crime. As noted by the ICTY Trial Chamber in the Nikolić decision of 20 October 1995: ‘Although they need not be related to a policy established at State level, in the conventional sense of the term, they cannot be the work of isolated individuals alone’.18
On the other hand, the collective nature of the criminal act, far from relativizing or wiping out individual responsibility, on the contrary clearly shows that it is founded, as it is in general terms in domestic criminal law, on a decisive psychological criterion, intentionality. As Claude Lombois says, ‘In their materiality, these offences are no different from those covered by the domestic penal law of each country … the only international aspect is the source of the incrimination, with international society taking over the defence of interests ordinarily upheld by domestic criminal law’.19
This is particularly clear in the case of genocide. The 1948 Convention on the prohibition and punishment of this type of action makes it a ‘crime in international law’ imputable to individuals taken as such, and founded, inter alia, according to its Article 2, on the discriminatory intention of the culprit. The fact (p. 1093) that individual genocidal actions form part of the carrying out of a collective act (not necessarily a State one) need not disguise the importance of the personal association by each of those carrying it out in achieving this aim planned by a group.
The ICTY Trial Chamber II noted this combination of collective intention and individual association as a condition for the accused’s responsibility in its judgment of 7 May 1997 in the Tadić case: ‘If the perpetrator has knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis and does not commit his act for purely personal motives completely unrelated to the attack on the civilian population, that is sufficient to hold him liable for crimes against humanity.’20 It will, finally, be recalled, as already noted earlier, that war crimes, especially spontaneous crimes, although committed during an armed conflict, are in themselves individual crimes. Yet the crime against peace or crime of aggression undoubtedly in practice constitutes the typical case of ‘double crime’ (State/individual) at the risk of involving, as shown particularly by Article 16 of the Statute of the International Criminal Court already cited, procedural interference between the two; this confirms that while the one cannot exist without the other, they nonetheless remain distinct.
Another feature helps to confirm the autonomy of individual criminal responsibility vis-à-vis the State’s for the commission of the same crimes. This is the system of removal of immunity of accused persons, even where ordinary international law would in principle shelter them from criminal prosecution because of the public nature of the positions they occupied, in connection with which they accomplished or decided to undertake the acts of which they are accused.21 This is the logic begun by the London Agreement of 8 August 1945 creating the Nuremberg Tribunal and providing for the prosecution of the major war criminals. As the Tribunal itself declared, ‘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. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.’22 Here, the gravity of the act takes precedence over the person’s legal position. It entails a declassification of the act, which ceases being associated with the public function covered by the ordinary system of immunities from jurisdiction and enforcement. In 1993 the respective Statutes of the two ad hoc criminal tribunals set up by the Security Council to ‘prosecute persons responsible for serious violations of international (p. 1094) humanitarian law’ took over the same rule of excluding immunity from jurisdiction of Heads of State or government.
One of course finds the same rule in the Rome Statute setting up the International Criminal Court, in Article 27. As the ICTY stated in the Blaškić case after referring to the ordinary system of immunities, it is of the essence of international criminal law that they be set aside in relation to war crimes, crimes against humanity and genocide, even if those responsible for those crimes carry them out in connection with their official functions.23
One might in the same vein base oneself on the rejection so-called defences Act of State or superior orders. This rejection was first made by the International Military Courts, such as the American Military Tribunal at Nuremberg.24 The same position was confirmed by the ad hoc international criminal tribunals, notably by the ICTY in the Nikolić case25 cited: the fact that a crime was ordered by the State authority does not in principle entail exoneration from individual responsibility of the individual who carried it out. One might however in this connection deplore the restrictive conception adopted in Article 33 of the Rome Statute on superior orders, which creates an exception (for orders to commit war crimes which the author does not know are illegal and which are not manifestly illegal) to the rule that superior orders are not a defence.26
It must however be deduced from the foregoing statements that, far from constituting a mere reflection of the State’s sole responsibility for crimes against humanity or war crimes, the individual international responsibility imputable to a natural person (even in the case of the crime of aggression) is attributable to him or her in their own capacity. At any rate, supporters of the contrary position would find it difficult to show that the system of individual responsibility essentially comes under the same rules as the responsibility incurred by the State for the same facts.
The differentiation of the respective systems of responsibility of the individual and the State for international crimes, given the incompleteness of the development of the positive law, applies in relation to both basic rules and procedural rules.
First, regarding the basic rules, or more precisely the very foundation of each of the two responsibilities, important differences should be noted. We spoke earlier of the decisive part played in international criminal law, as in domestic criminal law, by the criterion of intentionality. Intention is a constituent element in the individual offence; it can be noted that the recent case law of the two ad hoc Tribunals amply confirms this feature, in particular in relation to crimes against humanity (obviously including genocide).
Now in public international law, at least since the major doctrinal contribution of Dionisio Anzilotti, the majority doctrine and dominant judicial practice accept the proposition that the origin of the State’s international responsibility, what is in French known as the ‘fait générateur’ of the responsibility, is no longer constituted by fault (in the sense of Latin culpa), but by the ‘wrongful act’.27 The latter is characterized by the objective gap between a State’s actual conduct in a given situation and the behaviour it ought to have had pursuant to the applicable legal rule.
Anzilotti, and following him most commentators, insist in this connection that what specifically differentiates the wrongful act from fault is just this criterion of intentionality. We ourselves of course, among others, have had occasion to note that this differentiation in part amounts to a fiction, both reductive and very effective for the functioning of responsibility.28 It is particularly because of the latter feature that the first special rapporteur to the International Law Commission, like his successors, did not again call the doctrine on wrongful act into question.
One ought thus note a radical difference in foundation between individual criminal responsibility, founded on fault and thus intention, and the State’s international responsibility, founded on the wrongful act. In reality the development of public international criminal law has enabled cases in which intention indeed constitutes a constitutive element in the State’s international responsibility.29 Thus, when a State is accused of genocide before the International Court of Justice, as at present in several cases (Bosnia v. Yugoslavia and Croatia v. Yugoslavia, in particular), it is incumbent on the petitioner to show the genocidal intent of the government that ordered actions falling within the framework of those listed in (p. 1096) Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The fact remains that intention is essentially individual and is only in a sense communicated to the State because the origin of the latter is, as the Nuremberg Tribunal said, ‘men and not abstract entities’. It is the primary foundation of the responsibility of the individual, whereas it is a subsidiary element in State responsibility, to be found in only a limited number of wrongful acts. The individual’s responsibility is fundamentally penal. The State’s remains, at least in the present stage of development of the positive law, linked to the classical foundation of responsibility for a wrongful act including, for instance, the case of genocide, even if, as we have just noted, the demonstration of malicious intent is essential to establishing this responsibility. This explains why it remains distinct from that of the individuals who are at the origin of the wrongful acts that engendered it. It is this latter aspect that the International Court of Justice had occasion to highlight in the case relating to application of the Convention for the Prevention and Punishment of the Crime of Genocide, in its 11 July 1996 ruling on the preliminary exceptions. Rejecting the argument of the defendant State that the 1948 Convention established only individual responsibility for genocide, the Court observed that ‘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” ’.30
The maintenance of a duality of responsibility, distinguishing the criminal individual’s from the State’s for which or under the control of which he or she acted, was also affirmed by the ICTY Trial Chamber II in the Furundžija case31 on 10 December 1998: ‘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.’32
There is no room here for a systematic review of the body of rules in course of codification that apply to the State’s international responsibility. One might however, on engaging in that exercise, find that a large part of them, including those that govern what constitutes a wrongful act, but a fortiori those relating to its imputation or to the implementation of responsibility, can in no way be transposed to individual responsibility for crimes. Classical international responsibility remains (p. 1097) conceived in terms of an essentially reparational view, as well as a sort of civil liability in the international order. It does not have the object of punishing the State.
The doctrine on international crimes of State introduced by Article 19 in the draft codification of international State responsibility on the basis of the reports by Professor Roberto Ago, in addition to raising a number of problems the importance of which we long ago drew attention,33 has been finally abandoned in the final version, adopted in July 2001, to be replaced by the notions of ‘serious breaches of obligations under peremptory norms of general international law’ (Part II, Chapter III, Articles 40 and 41) and of breach of obligations ‘owed to the international community as a whole’ (Article 48(1)(b)) which, at least, do not raise the difficulties inherent to the possible confusion between two kinds of ‘crimes’ (those committed by States and those committed by individuals). This terminological differentiation should help, one may hope, to clarify in the future the respective legal regime of the international responsibility of an individual for crimes and, as the case may be, the corresponding responsibility of a State for the violation of peremptory norms, such as, for instance, the prohibition of genocide.
We cannot here do more than sketch out the procedural differences between the two types of responsibility. Regarding individual responsibility, a first point differentiates it totally from the State’s. This is how far prosecution of international crimes committed by natural persons depends on universal competence. The position that certain crimes because of their gravity fall under this type of competence on what has by now become a customary basis is currently gaining ground. It has been particularly encouraged by the Furundžija case already cited of the ICTY in relation to the practice of torture. This precedent, supported by the terms of the 1984 UN Convention on the prohibition and prevention of torture, seems to attach to breach of the norm forbidding torture, regarded by the Tribunal as part of jus cogens, the consequence that ‘every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction’.34 This conception will however for some time continue to meet with hesitation in legal scholarship and in domestic case law, which is still generally restrictive in relation to universal competence, most often subordinating its exercise to the existence of a convention in force.35
(p. 1098) In connection with the competence of the ad hoc Tribunals for ex-Yugoslavia and Rwanda, their great originality lies in the fact that the prosecutions may be totally unilateral and not subordinate to prior assent by the State of nationality of the physical person prosecuted. This position, however, remains exceptional. For in the absence of a legal action brought by a State, the International Criminal Court will in principle be competent only in the framework defined vis-à-vis the States Parties, and on the relatively restrictive conditions laid down in Article 12 of its Statute. This brings us close to the conditions of legal prosecution of a State in responsibility, which remain subject to consensualism.
In general terms, the conditions for linking the two responsibility systems still for the moment require more exact definition. Thus, one might ask whether, in connection with cases of genocide considered jointly by the ICTY and the International Court of Justice, the legal findings made by the criminal tribunal would be regarded as endowed with the authority of res judicata by the International Court of Justice approaching on a collective scale the same facts as would be imputable to the national State of the individual culprit judged by the ICTY.
In any case, whatever may be the shadow areas that still cover the relations between individual international responsibility and the State’s international responsibility for crimes in international law, it must be noted that the former, confirming the innovation brought by the international military tribunals of Nuremberg and Tokyo, is separated from the State’s. We are thus seeing an evolution towards the individualization of penal responsibility in the international order that closely parallels the one municipal legal systems underwent long ago.
We must thus note that the affirmation of the individual’s international responsibility for infringements committed against the rights of other individuals completes the evolution begun after 1945 by introducing international human rights protection into the international order. The quality of being a subject of a legal order depends first and foremost on the possibility one has of oneself defending the rights of which one is the bearer. But concomitantly, it is based on legal capacity to be a bearer of associated obligations as they result from norms established in that legal order. The most contemporary developments in international penal law verify this evolution. They equally show that the same type of wrongful acts, like aggression or genocide, can give rise to two distinct types of responsibility coming under mutually autonomous legal regimes, the first constituting the individual responsibility of physical persons who are the culprits or the givers of the orders, the second that of the State in the name of which these same acts were committed. In the latter case, contrary to what was too long claimed by the first enthusiasts for the notion of ‘State crime’, it indeed seemed that we were in the presence of a (p. 1099) properly criminal responsibility of the State in question.36 Nevertheless, now that the explicit reference to the ‘crime of state’ has been deleted from the text of codification, it could hardly be maintained that the same ambiguity remains, at least in the same proportion.
Whatever the case may be, the further respective evolution of the two types of responsibilities is preserved by Article 58, the last article of the text finally adopted by the ILC on the responsibility of States for internationally wrongful acts. It states that the provisions of this text ‘are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State’.(p. 1100)
2 As contained in Chapter 2 of the Draft Articles on the Law on International Responsibility of States, adopted in 1996 on first reading by the United Nations International Law Commission, Arts. 5–15.
13 One may, however, conceive of this provision as having the aim of managing the distribution of prosecutions between the ICC and domestic criminal jurisdictions, with the former having the mission of dealing only with the most serious crimes.
14 In this connection, see in relation to the creation of the ICTY, P. Picone, ‘Sul fondamento giuridico del tribunale pénale internationale per la ex Iugoslavia’, in F. Lattanzi and E. Sciso (eds.), Dai tribunali penali internazionali ad hoc a una Corte permanente (1996) 70.
16 For a critical analysis of this ideology, see N. Bobbio, ‘Sur le positivisme juridique, et jusnaturalisme et positivisme juridique’, in Essais de théorie du droit (1998), respectively, pp. 23–39 and 39–55.
27 See esp. P. M. Dupuy, ‘Le Fait générateur de la responsabiliré internationale de l’État’, RCADI t.188 (1984,) 13–129, esp. pp. 29–37 and ‘Dionisio Anzilotti and the Law of International Responsibility of States’, 3 EJIL (1992) 139–148.
29 Ibid., 33–36. There are in fact numerous cases where intentionality is an integral part of the wrongful nature of the act, thus denying Anzilotti’s simplifying thesis that the wrongful act reduces to the objective gap between the actual conduct of the State in question and the content of the obligation it was bound by in the given case.
33 See esp. Dupuy, supra note 27, at 55–60 and ‘Observations sur le crime international de l’État, 84 RGDIP (1980) 449 ff; J. Weiler, A. Cassese, and M. Spinedi (eds.), International Crimes of States (1989) 368. For a recent analysis of the International Law Commission’s work on this point, see D. Bowett, ‘Crimes of State and the 1996 Report of the International Law Commission on State Responsibility’, 9 EJIL (1998) 163–174.