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Part III The Sources of International Responsibility, Ch.29 International Crimes of States

James Crawford

From: The Law of International Responsibility

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 17 April 2021

Subject(s):
Genocide — Aggression — Apartheid — Wrongful acts — Responsibility of states — Erga omnes obligations

(p. 405) Chapter 29  International Crimes of States

Introduction

The traditional position of international law on the question of international crimes of States was expressed by the Nürnberg Tribunal, which stated that:

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

Treaties recognizing or establishing international crimes affirmed the Tribunal’s position. The first of the post-war criminal law conventions, the Genocide Convention, specifi cally provided in article IX for State responsibility with respect to genocide,2 but it was made clear at that time that article IX did not envisage any form of State criminal responsibility.3 Nor have there been any judicial decisions providing for the criminal responsibility of a State as such (as distinct from State officials). Consequently when the International Law Commission introduced the notion of ‘crimes of State’ into the Draft Articles on first reading this proved contentious.

(p. 406) International crimes in the ILC’s Draft Articles

(a)  Historical overview

The concept of international crimes was incorporated into the Draft Articles on State Responsibility in 1976, when draft article 19 was provisionally adopted. The distinction between two categories of internationally wrongful acts had its origins in a proposal from Special Rapporteur García Amador in 1956 to distinguish ‘merely wrongful’ from ‘punishable’ acts. ‘Punishable’ acts were defined as acts done by individuals who were organs of the State and acting as such, with the consequence that they could be pursued and punished by States other than their own. The Special Rapporteur’s suggestion that it was appropriate to stress the punitive aspects of reparation in the event of infringement of ‘punishable’ acts—in particular by the payment of ‘punitive’ damages—was not accepted by the ILC (and indeed at no stage—not even at the zenith of article 19’s academic popularity— was there any trace of acceptance by States of the idea of punitive damages).4 Despite this, in debates between 1960 and 1963, the Draft Articles were criticized by the Soviet Union and other Soviet bloc countries on the basis that they failed to codify the principles governing the responsibility of States for violations of fundamental principles of international law:5 many G77 delegates agreed. In consequence, the ILC set up a Sub-Committee to consider more thoroughly the codification of State responsibi lity. The Sub-Committee recommended that the ILC ‘give priority to the definition of general rules governing the international responsibility of the State’, while paying ‘careful attention … to the possible repercussions which new developments in international law may have had on responsibility’. The Sub-Committee noted the ‘possible distinction between internationally wrongful acts involving merely a duty to make reparation and those involving the application of sanctions’.6

Between 1967 and 1973 Special Rapporteur Ago substantially developed the Draft Articles. Debates in the ILC emphasized the question of categories distinguishing between wrongful acts, and in particular referred to obligations relating to the maintenance of peace.7 At the close of its 1969 session, it was agreed that a first part of the Draft Articles would establish the conditions for the existence of an internationally wrongful act of a State and that a second part would establish the consequences of that act:

(p. 407) To that end, the Commission was in general agreement in recognizing that two factors in particular would guide it in arriving at the required definition: namely, the greater or lesser importance to the international community of the rules giving rise to the obligations violated, and the greater or lesser seriousness of the violation itself.8

In 1973, the ILC adopted article 1 on first reading, which provided:

Every internationally wrongful act of a State entails the international responsibility of that State.

In its Commentary to draft article 1, the ILC noted that if it failed to distinguish between different categories of internationally wrongful acts, this was only because article 1 was intended to state a basic principle which would be detailed in other articles.9 In particular, Chapter III of the first part of the Draft would deal with the problems of determining distinct categories of breaches of international obligations. The question would then arise whether it was necessary ‘to recognize the existence of a distinction based on the importance to the international community of the obligation involved, and accordingly whether contemporary international law should acknowledge a distinct and more serious category of internationally wrongful acts, which might perhaps be described as international crimes’.10

In 1976, the ILC turned to consider Part III of the Draft Articles. The Special Rapporteur argued for a distinction to be drawn between categories of wrongful acts on the basis of the subject matter of the obligation breached, and specifically with respect to the importance of the obligation breached for the international community. He argued that international law attached special responsibility to the breach of certain obligations deemed to be essential to the safeguarding of fundamental interests of the international community: consequently, the Draft Articles ought to indicate that the breach of such obligations represented a different kind of internationally wrongful act and involved a special responsibility.11 The ILC agreed: draft article 19, which distinguished between ‘international crimes’ and ‘international delicts’, was adopted unanimously.12 It provided:

1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.

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.

3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:

(a)  a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;

(b)  a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment of maintenance by force of colonial domination;

(c)  a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

(p. 408) (d)  a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.

4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2, constitutes an international delict.

(b)  Debate on the consequences of an international crime

Although draft article 19 was provisionally adopted in 1976, there was no agreement at that stage on the substantive consequences of the distinction between categories of internationally wrongful acts. It was intended at a later stage to consider more precisely how the responsibility for an international crime differed from the responsibility for an international delict. In its Report on the 1976 Session, the Commission noted:

Although the Commission thus recognized conclusively that some wrongs are to be regarded as more serious than others, and hence deserve to be characterized accordingly, it did not feel that the task of specifying the respective régimes of international responsibility applicable to the two kinds of internationally wrongful acts thus distinguished came within the scope of the present article, or indeed of the present chapter. This is a question which the Commission will have to settle when it takes up the problem of the content and the different forms of responsibility.13

The substantive consequences of the distinction between international crimes and international delicts were not formulated for many years—indeed not until 1996, and then only after a difficult debate.14 The Draft Articles on first reading provided that where an internationally wrongful act of a State was an international crime, the following consequences applied in respect of the responsible State. First, restitution was required, even if the burden of providing was restitution was out of all proportion to the benefit gained by the injured State instead of compensation (article 52(2)). Secondly, it was irrelevant that restitution might seriously jeopardize the political independence or economic stability of the responsible State (article 52(a)). Thirdly, it could not be objected that measures by way of satisfaction would ‘impair the dignity’ of the responsible State (article 52(b)). In addition article 53 imposed specific obligations on all States in respect of international crimes. It provided:

An international crime committed by a State entails an obligation for every other State:

(a)  not to recognize as lawful the situation created by the crime;

(b)  not to render aid or assistance to the State which has committed the crime in maintaining the situation so created;

(c)  to cooperate with other States in carrying out the obligations under subparagraphs (a) and (b); and

(d)  to cooperate with other States in the application of measures designed to eliminate the consequences of the crime.

There was a marked contrast between the gravity of an international crime of a State, as expressed in draft article 19, on the one hand, and the rather limited consequences drawn from such a crime, as expressed in draft articles 52 and 53, on the other. There was (p. 409) a further contrast between the strong procedural guarantee associated with countermeasures under Parts Two and Three, and the complete absence of any procedural guarantee associated with international crimes.

In 1998 the ILC decided to set article 19 temporarily to one side while it sought to resolve the questions of responsibility raised by such breaches in other ways.15 The 1998 Report summarized the situation in the following terms:

Following the debate, and taking into account the comments of the Special Rapporteur, it was noted that no consensus existed on the issue of the treatment of ‘crimes’ and ‘delicts’ in the draft articles, and that more work needed to be done on possible ways of dealing with the substantial questions raised. It was accordingly agreed that: (a) without prejudice to the views of any member of the Commission, draft article 19 would be put to one side for the time being while the Commission proceeded to consider other aspects of Part One; (b) consideration should be given to whether the systematic development in the draft articles of key notions such as obligations (erga omnes), peremptory norms (jus cogens) and a possible category of the most serious breaches of inter national obligation could be sufficient to resolve the issues raised by article 19; (c) this consideration would occur, in the first instance, in the Working Group established on this topic and also in the Special Rapporteur’s second report; and (d) in the event that no consensus was achieved through this process of further consideration and debate, the Commission would return to the questions raised in the first report as to draft article 19, with a view to taking a decision thereon.16

The issue however continued to provoke deeply conflicting positions, both among governments and within the ILC.17 Some governments (eg France, Japan, UK, USA) argued for the deletion of the concept altogether on the basis that the seriousness of the breach of an obligation involves a difference of degree, not kind, and that appropriate account can be taken of gradations of seriousness by other means.18 In their view it would be more appropriate to substitute a clause stating that the Articles were without prejudice to the possible development of stricter forms of responsibility for serious breaches of international law. On the other hand, other governments (eg Austria, the Nordic countries, the Netherlands, Slovakia, Spain) were supportive of its retention; in some cases, strongly so,19 although not all of them were wedded to the terminology.20

(c)  Substitution of the ‘serious breaches’ regime

In 2000, the Special Rapporteur proposed and the Commission accepted a compromise whereby the concept of international crimes of States would be deleted, but that certain special consequences would be specified as applicable to a serious breach of an obligation owed to the international community as a whole. These consequences included the (p. 410) possibility of ‘aggravated’ damages, as well as certain obligations on the part of third States not to recognize such a breach or its consequences as lawful and to cooperate in its suppression.21 This ‘depenalization’ of State responsibility was generally welcomed, even by former supporters of draft article 19. However the formulation of Part Two, Chapter III embodying the compromise still gave rise to difficulties. In particular the possibility of the ‘payment of damages reflecting the gravity of the breach’ proved controversial. Although there was general agreement that this should not be equated with punitive damages, and despite the fact that the Special Rapporteur continued to press for its inclusion, it was eventually agreed that it provision should be deleted.

A second element of the compromise involved the formulation of ‘serious breach of an obligation owed to the international community as a whole and essential for the protection of its fundamental interests’. Concern was expressed that the concept of obligations to the international community as a whole was too general, and that some more clearly defined category of underlying obligations should be substituted for it. It was noted that the International Court in articulating the concept of obligations erga omnes in 1970 had been concerned with invocation, not with the status of the norm breached.22 To avoid confusion it was agreed to limit Part Two Chapter III to serious breaches of obligations deriving from and having the status of peremptory norms. Article 40(1) as finally adopted thus reads:

This Chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.

The notion of peremptory norms is well established in the two Vienna Conventions on the law of treaties,23 and is now widely accepted. In certain circumstances there might be minor breaches of peremptory norms which would not be the concern of Chapter III. Only serious breaches, ie those characterized as involving ‘a gross or systematic failure by the responsible State to fulfil the obligation’ imposed by a peremptory norm are covered; only such breaches thus entail the additional consequences set out in article 41. The ILC did not feel that it was its role to provide a list of peremptory norms; the qualification of a norm as peremptory is left to evolving State practice and decisions of judicial bodies.24

Chapter III of Part Two is a framework for the progressive development, within a narrow compass, of a concept which ought to be broadly acceptable. On the one hand it does not call into question established understandings of the conditions for State responsibility as contained in Part One. On the other hand, it recognizes that there can be egregious breaches of fundamental obligations which require some response by all States. As to individual responses, the obligations imposed by article 41 are not demanding. The most important, that of non-recognition, already reflects general international law.25

(p. 411) Genocide, aggression, apartheid, and forcible denial of self-determination, for example, all of which are generally accepted as prohibited by peremptory norms of general international law, constitute wrongs which ‘shock the conscience of mankind’.26 It is surely appropriate to reflect this in terms of the consequences attached to their breach. No doubt it is true that other breaches of international law may have particularly serious consequences, depending on the circumstances. The notion of serious breaches of peremptory norms is without prejudice to this possibility, and to that extent the consequences referred to in article 41 are indicative and non-exclusive.

The Commission was also asked to give further consideration to aspects of the definition of the consequences of serious breaches as contained in article 42, in order to simplify it and avoid excessively vague formulae. Article 41 was reformulated to a degree, but without further significant changes in substance. In its final form it reads:

1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 41.

2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 41, nor render aid or assistance in maintaining that situation.

3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this Chapter applies may entail under international law.

In addition it is provided 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’ (article 58). Thus a clear distinction is drawn between the individual responsibility, eg under international criminal law, of a State official for genocide or crimes against humanity, and that of the State itself under the Articles.

(d)  Subsequent consideration of the issue by the ICJ

In the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice discussed the existence of the consequences for third States as a result of breaches by Israel of the right of self determination and certain obligations under international humanitarian law. The Court reasoned first that the norms in question constituted rights and obligations erga omnes and then held that ‘[g]iven the character and the importance of the rights and obligations involved’, other States were under an obligation not to recognize the illegal situation resulting from the construction of the Wall, and were under an obligation not to render aid and assistance in maintaining the situation thereby created, as well as an obligation ‘while respecting the United Nations Charter and international law to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end’.27 In addition, the Court was of the view that the ‘United Nations, and especially the General Assembly and the Security Council, should (p. 412) consider what further action is required to bring an end to the illegal situation resulting from the construction of the wall …’.28

The Court seems to have seen the consequences arising from the breaches of the right to self-determination and international humanitarian law as deriving from the erga omnes nature of the norms breached rather than their peremptory character, as is the position expressed under ARSIWA articles 40 and 41. However, the opinion is not entirely clear in this respect; it is also open to the criticism that the erga omnes status of an obligation is not as such an indication of its importance justifying the imposition of obligations on other States in case of serious breach (although there appears to be close correlation between the categories of peremptory norms and obligations erga omnes). Rather is a description of the structural character of the norm, indicating that States generally are able to complain of its breach. The better view would appear to be, then, that the Court’s reference to the ‘character and importance of the rights and obligations involved’ was an elliptical reference to the peremptory character of the norms in question.

The issue was thoughtfully discussed by Judge Kooijmans (dissenting on this point). He said:

40  … I must admit that I have considerable difficulty in understanding why a violation of an obligation erga omnes by one State should necessarily lead to an obligation for third States. The nearest I can come to such an explanation is the text of Article 41 of the International Law Commission’s Articles on State Responsibility….

41. I will not deal with the tricky question whether obligations erga omnes can be equated with obligations arising under a peremptory norm of general international law. In this respect I refer to the useful commentary of the ILC under the heading of Chapter III of its Articles. For argument’s sake I start from the assumption that the consequences of the violation of such obligations are identical.

42. Paragraph 1 of Article 41 explicitly refers to a duty to co-operate. As paragraph 3 of the commentary states, ‘What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches’. And paragraph 2 refers to ‘[c]ooperation … in the framework of a competent international organization, in particular the United Nations’. Article 41, paragraph 1 therefore does not refer to individual obligations of third States as a result of a serious breach. What is said there is encompassed in the Court’s finding in operative subparagraph (3)(E) and not in subparagraph (3)(D).

43. Article 41, paragraph 2, however, explicitly mentions the duty not to recognize as lawful a situation created by a serious breach just as operative subparagraph (3)(D) does. In its commentary the ILC refers to unlawful situations which—virtually without exception—take the form of a legal claim, usually to territory. It gives as examples ‘an attempted acquisition of sovereignty over territory through denial of the right of self-determination’, the annexation of Manchuria by Japan and of Kuwait by Iraq, South Africa’s claim to Namibia, the Unilateral Declaration of Independence in Rhodesia and the creation of Bantustans in South Africa. In other words, all examples mentioned refer to situations arising from formal or quasi-formal promulgations intended to have an erga omnes effect. I have no problem with accepting a duty of non-recognition in such cases.

44. I have great difficulty, however, in understanding what the duty not to recognize an illegal fact involves. What are the individual addresses of this part of operative subparagraph (3)(D) supposed to do in order to comply with this obligation? That question is even more cogent considering that 144 States unequivocally have condemned the construction of the wall as unlawful (resolution ES-10/13), whereas those States which abstained or voted against (with the exception of Israel) did (p. 413) not do so because they considered the construction of the wall as legal. The duty not to recognize amounts, therefore, in my view to an obligation without real substance.

45. That argument does not apply to the second obligation mentioned in Article 41, paragraph 2, namely the obligation not to render aid or assistance in maintaining the situation created by the serious breach. I therefore fully support that part of operative subparagraph (3)(D). Moreover, I would have been in favour of adding in the reasoning or even in the operative part a sentence reminding States of the importance of rendering humanitarian assistance to the victims of the construction of the wall. (The Court included a similar sentence, be it with a different scope, in its Opinion in the Namibia Case, I.C.J. Reports 1971, p. 56, para. 125.)29

By contrast the Court, while making no express reference to articles 40 and 41, effectively relied on them.

A future for international crimes of States?

The Articles on State Responsibility as finally adopted reflect a compromise of sorts. On the one hand the concept of the criminality of States and the role of sanctions as part of the regime of responsibility are rejected. On the other hand the Articles reflect the idea that some obligations are held to the international community as a whole and not only to individual states, and that grave breaches of those obligations may attract special consequences.

To the extent that the notion of ‘international crime’ is intended to reflect a qualitative difference between the breaches of obligations owed to the international community as a whole and obligations owed to one or a few states, the idea is acceptable. But the language of ‘crime’ and ‘delict’ is not merely unnecessary: it is misleading and deceptive. The genuine introduction of criminal offences of states would require major changes. In particular it would be necessary to address issues of due process and dispute settlement: otherwise the language of ‘crime’ degenerates into name-calling, and will tend only to accentuate the power of the powerful, and especially of the permanent members of the Security Council. As a matter of technique, a general code of obligations does not need to embody the penal consequences of criminal acts, and if the term ‘criminal’ is being used in some mysterious, abstract sense, divorced from adequate procedures for the determination of criminal responsibility, the term should not be used at all.

The International Court has now confirmed this view, unequivocally, in the Bosnian Genocide case.30 That was of course not a criminal proceeding but an interstate claim under the Statute seeking reparation for genocide allegedly committed by or at the instigation or with the complicity of the Respondent State (the former FRY, now reduced to Serbia). One might have imagined that the Court could deal with that issue—difficult enough in law and fact as it was—without considering the issue of State criminality. But the issue of ‘State crimes’ was indirectly relevant in the following way. The principal obligation of States under the Genocide Convention is to prevent and punish genocide committed by individuals (including persons acting in an official capacity). Although the impetus for the Convention was, notoriously, a deliberate campaign of genocide by a State, the drafters of the Convention refrained from saying, in so many words, that States should not commit (p. 414) genocide; and Serbia argued that no such obligation could be implied. The Court disagreed: in its view, ‘the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide’,31 and this obligation was encompassed by Article IX of the Convention.32 Against this it was argued that States cannot commit crimes, and that that the Convention contemplated only criminal responsibility for genocide. The Court agreed with the first proposition but not the second:

The Court now considers three arguments, advanced by the Respondent which may be seen as contradicting the proposition that the Convention imposes a duty on the Contracting Parties not to commit genocide and the other acts enumerated in Article III. The first is that, as a matter of general principle, international law does not recognize the criminal responsibility of the State, and the Genocide Convention does not provide a vehicle for the imposition of such criminal responsibility. On the matter of principle the Respondent calls attention to the rejection by the ILC of the concept of international crimes when it prepared the final draft of its Articles on State Responsibility, a decision reflecting the strongly negative reactions of a number of States to any such concept. The Applicant accepts that general international law does not recognize the criminal responsibility of States. It contends, on the specific issue, that the obligation for which the Respondent may be held responsible, in the event of breach, in proceedings under Article IX, is simply an obligation arising under international law, in this case the provisions of the Convention. The Court observes that the obligations in question in this case, arising from the terms of the Convention, and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature. This argument accordingly cannot be accepted.33

Thus by a side-wind the second reading strategy of the ILC on ‘State crimes’ was upheld.

Further reading

  • G Abi-Saab, ‘The Uses of Article 19’ (1999) 10 EJIL 339
  • J Crawford, ‘Revising the Draft Articles on State Responsibility’ (1999) 10 EJIL 435
  • G Gaja, ‘Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?’ (1999) 10 EJIL 365
  • N Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000)
  • A Orakhelahvili, Peremptory Norms in International Law (Oxford, OUP, 2006)
  • A Pellet, ‘Can a State Commit a Crime: Definitely, Yes!’ (1999) 10 EJIL 425
  • PS Rao, ‘International Crimes and State Responsibility’, in M Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden, Martinus Nijhoff, 2005), 63
  • CJ Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005)
  • J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989)

Footnotes:

Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, vol 22, 466 (1948).

Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, 78 UNTS 277.

Sir Gerald Fitzmaurice as co-sponsor of article IX stated that ‘the responsibility envisaged by the joint Belgian and United Kingdom amendment was the international responsibility of States following a violation of the convention. That was civil responsibility, not criminal responsibility’: Official Records of the General Assembly, Sixth Committee, Summary Records, 21 September–10 December 1948, 440.

FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104, 105 (para 2). García-Amador noted: ‘… in deference to the general opinion expressed in the International Law Commission, the Special Rapporteur has excluded from the draft the penal consequences of the non-fulfilment of certain international obligations, even where such consequences might affect the strictly civil responsibility. At least as far as the Special Rapporteur is concerned, this aspect of the question is therefore left pending’.

See speeches by the delegations of the USSR (A/C.6/SR.651, paras 9–10 and SR.657, para 31), Roumania (A/C.6/SR.653, paras 9–10), Hungary (A/C.6/SR.654, paras 12–13), Czechoslovakia (A/C.6/SR.655, para 11) the Ukraine (A/C.6/SR.657, para 20), Bulgaria (A/C.6/SR.658, para 33), Albania (A/C.6/SR.662, para 2) and Byelorussia (A/C.6/SR.662, para 13). These criticisms were taken up by other countries in 1961 and 1962: see speeches by the delegations of Poland (A/C.6/SR.725, paras 2 and 7), Chile (A/C.6/SR.737, para 22), Cambodia (A/C.6/SR.740, para 14), Mongolia (A/C.6/SR.742, para 3), Algeria (A/C.6/SR.742, para 13) and Bolivia (A/C.6/SR.746, para 23). See M Spinedi, ‘International Crimes of States: The Legislative History’, in J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989), 7, 12–15.

‘Report of the Sub-Committee on State Responsibility’, ILC Yearbook 1961, Vol II, 228.

See Mr Yassen (ILC Yearbook 1969, Vol I, 107), Mr Ramangasoavina (ILC Yearbook 1969, Vol I, 107), Mr Bartoš (ILC Yearbook 1969, Vol I, 112), Mr Ushakov (ILC Yearbook 1969, Vol I, 112–3, 1970, Vol I, 209), Mr Eustathiades (ILC Yearbook 1969, Vol I, 115) and Mr Tabibi (ILC Yearbook 1970, Vol I, 183).

ILC Yearbook 1969, Vol I, 241.

ILC Yearbook 1973, Vol II, 175.

10  ILC Yearbook 1973, Vol II, 172.

11  See R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 24–54.

12  ILC Yearbook 1976, Vol I, 253.

13  ILC Yearbook 1976, Vol II(2), 117 (para 53). See also ILC Yearbook 1976, Vol I, 250–1.

14  ILC Yearbook 1996, Vol I, 22–31, 178–80, 182–4, 191–3. Between 1976 and 1983, some 80 States indicated their views during discussions of the Sixth Committee of the General Assembly: see J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989), 45–46.

15  See the summary of the debate in ILC Yearbook 1998, Vol II(2), 64–77 (paras 241–331).

16  Ibid, 77 (para 331).

17  For full bibliographies, see M Spinedi, ‘Crimes of States: A Bibliography’, in J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989), 339–353; N Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000), 299–314.

18  Comments and Observations received from Governments, A/CN.4/515 and Adds.1 and 2 (2001). See also the Topical Summary of the Discussion held in the Sixth Committee during the fifty-fourth session of the General Assembly (A/CN.4/513 (2001)).

19  See A/CN.4/488, 53–54 (Denmark on behalf of the Nordic countries), 59 (Mongolia); A/CN.4/488/ Add.2, 4–5 (Italy); A/CN.4/492 (Greece).

20  See the careful and balanced remarks of the Czech Republic: A/CN.4/488, 52.

21  See further J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, Add. 4, paras 407–411; for the text of the proposal, ibid, para 412.

22  Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Second Phase, ICJ Reports 1970, p 1, 32–33 (paras 33–35).

23  Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 53; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986 (not yet in force), art 53.

24  See, however, commentary to art 40, paras 3–5. See also commentary to art 26, para 5.

25  See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 54 (para 118); 56 (para 126); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 199–200 (paras 155–159).

26  Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15, 23.

27  Legal Consequences of the Construction of a Wall, ICJ Reports 2004, p 136, 200 (para 159).

28  Ibid, 200 (para 160).

29  Ibid, 231–2 (paras 40–45). Cf Judge Higgins (sep op), ibid, 216–217 (paras 37–39).

30  Application of the Convention for the Prevention and Punishment of the Crime of Genocide, Merits (Bosnia-Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007.

31  Ibid, para 166.

32  Ibid, paras 168–169.

33  Ibid, para 170.