References(p. 406) 2 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:
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
(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:
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 References(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:
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
References(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:
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 References(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:
By contrast the Court, while making no express reference to articles 40 and 41, effectively relied on them.
3 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
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 References(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:
Thus by a side-wind the second reading strategy of the ILC on ‘State crimes’ was upheld.
1 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, vol 22, 466 (1948).
2 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, 78 UNTS 277.
3 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.
4 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’.
5 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.
6 ‘Report of the Sub-Committee on State Responsibility’, ILC Yearbook 1961, Vol II, 228.
7 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).
8 ILC Yearbook 1969, Vol I, 241.
9 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).
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).
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.