1. International Criminal Courts
1.1. Why is the prosecution of individuals for crimes against humanity, deemed controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made
clear that the category of "crimes against humanity" (the category of
"violation of peace" alike) would interfere with a state's sovereignty
with respect to domestic jurisdiction and governmental activities, such
as the waging of war. Also, the category of "crimes against humanity"
would be contary to the universal principle "nullum crimen sine lege"
(Art. 22 Rome), as no such category of crimes was recognized before the
IMT was set up.
The first international case to give rise to a wide recognition of
individual responsibility for war crimes, whether they were committed on
an international scale or within the boundaries of a state, was the
Tadic case of the ICTY.
1.2. How is the jurisdiction of the ICC defined?
The jurisdiction ratione personae of the ICC is limited to individuals.
The Court has jurisdiction over natural persons pursuant
to the Statute, according to Article 25 of the Rome Statute. The
International Criminal Court was established by the Rome Statute. The
jurisdiction of the ICC is based on the principle of complementarity, as
Article 1 of the Rome Statute reads. The primacy of domestic courts
with respect to exercising jurisdiction over crimes, implies that the
ICC only has jurisdiction when a State is unwilling or unable genuinely
to carry out the investigation or prosecution, as Art. 17 ( Issues of
admissibility) of the Rome Statute makes clear.
1.2.1. material jurisdiction
The substantive component of international criminal law, making up the
material jurisdiction, consists of four core crimes, as Article 5 of
Rome puts it: "The jurisdiction shall be limited to the most serious
crimes of concern to the community as a whole. The Court has
jurisdiction with respect to: the crime of genocide, crimes against
humanity, war crimes and the crime of aggression".
1.2.2. core crimes
Conviction of the individual for committing core crimes, requires the
fulfilment of actus reus and mens rea. With respect to actus reus, the
crimes of genocide, war crimes and crimes against humanity are covered
by articles 6-8 of the Rome Statute, the category of war crimes being
the most elaborate. For an individual to be prosectuted and ultimately
convicted for the crime of genocide, the decisive criterion is to be
found in Article 2 of the Genocide Convention: the requirement of an
intent to destroy has to be met.
The ICTY in the Krstić (pronunciation: kerr-steech, a name that oddly translates as Mr. Cross-stitch) case has set
out that the term "in part", as meant in Article 3 of the Genocide
Convention, contains a substantiality requirement. The Trial Chamber
determined that Krstic had the intent to kill, thus, the requirements of
Art. 4(2)(a) of the Rome Statute have been met (para 598 case IT-98-33-T, Prosecutor v. Krstić).
Although the ICTY Appeals Chamber in the Judgment of 19 April 2004
acknowledges that the Trial Chamber should have exressed its reasoning
more carefully (para 22), the remark is made that the Trials Chamber was
correct when determining that the part of the group that has been
killed, was "substantial" as with respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to
destroy this substantial part of a group, the Trial Chamber did not
depart from the legal requirements for genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a
"specific intent" exists when there is "knowledge of the attack". This
is a less strict criterion than is the "intent to destroy" requirement
for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent
to kill"? The mental element as such, mens rea, is described in Article
30(2) of the Rome Statute of the ICC: a person has intent where (a) in
relation to conduct, that person means to engage in the conduct; (b) in
relation to a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in
Articles 31 and 32 of the Rome Statute. Article 33 provides possible
grounds for the exclusion of criminal responsibility; paragraph 1 gives a
negative formula: "..shall not relieve that person of responsibility,
unless..." one of the three options in (a)(b)(c) applies.
1.2.3. temporal jurisdiction
The first of the general principles of criminal law, as laid down in
part 3 of the Rome Statute, define the temporal jurisdiction of the
ICC: from "nullum crime sin lege", "nulla poena sine lege" and the
non-retroactivity ratione personae, follows that the Court has no
jurisdiction with respect to criminal activities committed prior to the
entry into force of the Rome Statute, see Art. 11 along with 24 of the
Rome Statute.
1.2.4. territorial and personal jurisdiction
The Court can exercise its jurisdiction if a state within the territory
of which the conduct has taken place, is a party to the Rome Statute or
has accepted the ICC's jurisdiction in accordance with paragraph 3 (Art.
12 Rome Statute). From this follows that the ICC can exercise
jurisdiction if the state of which an accused individual is a national,
is a party to the Rome Statute or has accepted its jurisdiction as set
out.
Note that the limitation of territorial and personal jurisdiction does
not apply to the situations as provided for in Articles 13(b) and 15 ter
of the Rome Statute.
1.2.5. no universal jurisdiction
No universal jurisdiction of the ICC is recognized; with respect to its
complementary role, Article 12(2) of the Rome Statute provides that
State consent is a precondition to the exercise of jurisdiction by the
ICC.
1.3. What are the conditions for action by the ICC?
There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN
Charter, may refer a situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by
the Prosecutor, Article 13(a) and (c) Rome, are subject to the
conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic courts?
As said before, the nature of the jurisdiction of the ICC is
complementary; the Court has no primacy, as states have first
responsibility, unless they are unwilling or genuinely unable to carry
out investigation or prosecution, which is an issue of admissibility.
Once a case is genuinely being investigated or prosecuted by a domestic
court, the case will no longer be admissible before the ICC: look up
relevant Articles 1 and 17-19 of Part 2 of the Rome Statute.
No such conditions are imposed on the Criminal Tribunals; the
International Criminal Tribunal of the former Yugoslavia shall have
primacy over national courts, in accordance with Art. 9(2) of the ICTY.
The same holds good for the Rwanda Criminal Tribunal, as Article 8(2) of
the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction
provisions in the ICTY.
The International Tribunals have another main advantage over the ICC in
common: the permanent status of the ICC demands from the Court that
individuals only be prosecuted for or convicted of crimes that meet the
condition of nullum crime sini lege in accordance with Article 22 of the
Rome Statute. No such provisions are to be found in the ICTY and ICTR:
the International Criminal Tribunals are able to respond to recent
activities, regardless of a strict ex ante codification of crimes that
the individual could be convicted of.
3. How is the responsibility of the individual addressed?
3.1. Individually or jointly committed crimes and contribution to the commission of crimes
An individual should be held criminally responsible and liable for
punishment for a crime within the jurisdiction of the ICC, if that
person:
1. Commits such a crime, whether as an individual, jointly with another or through another person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted
commission of such a crime. Such contribution shall be intentional and
shall either be made with the aim of furthering the criminal activity or
be made in the knowledge of the intention of the group to commit the
crime
(art. 25(3)(d)(i)(ii) Rome Statute).
3.2. Responsibility of commanders
A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces
under his effective command and control, where that military commander
either knew or should have known that the forces were committing such
crimes and that military commander failed to take necessary and
reasonable measures within his power to prevent or repress their
commission [..] (Art. 28 Rome Statute).
3.3. Persons pursuant to superior orders
The fact that a crime is committed by a person, pursuant to an order of a
Government or a superior, shall not relieve that person of
responsibility, unless that person was under a legal obligation to obey,
the person did not know that the order was unlawful and the order was
not manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However,
the crime of genocide and crimes against humanity are manifestly
unlawful; thus, a person cannot be relieved from responsibility with
respect to such crimes (Art. 33(2) Rome Statute).
3.4. State responsibility
Article 25(4) provides that no provision in the Rome Statute relating to
individual responsibility shall affect the responsibility of States
under international law.
4. How can a state exercise domestic jurisdiction over international crimes?
The principles from which state jurisdiction is derived, are territoriality, protection, nationality and universality.
4.1. Territoriality principle
Regarding the territoriality principle, a distinction can be drawn
between the subjective territoriality (initiation of a crime) and the
objective territoriality/ effects doctrine (fulfilment of a criminal
offence). If two states are concerned, both the state in which the crime
was initiated and the state in which the crime was executed, are
entitled to exercise their jurisdiction.
4.2. Nationality principle
The active nationality principle implies that a state may exercise its
jurisdiction over its own nationals, regardless of the territory on
which a crime was committed.
The passive nationality principle aims to protect a state's own
nationals against offences, even if they are committed by another
national in another state. Exercising passive nationality would
interfere with the right of another state to exercise its territorial
jurisdiction.
4.3. Protective principle
The protective principle implies that a state can exercise jurisdiction
over non-nationals in the territory of another state. The requirement is
that an offender commits a crime that affects the vital interests of a
state.
4.4. Universality principle
Certain crimes are so grave in nature, that a universal protection
against the commission of such crimes is required, regardless of
territoriality and nationality issues. From this follows that states
need to exercise universal jurisidiction with respect to the prosecution
of offenders.
Note that treaty law imposes on states, party to a treaty, the
obligation to exercise universal jurisdiction regarding the repression
of universally recognized, grave crimes. The crimes of genocide and
torture are crimes of such gravity. Article 6 of the Genocide Convention
stipulates that an offender shall be tried by a competent tribunal,
which may exercise its jurisdiction over the territory of the Party
State in which the crime of genocide was committed. The preamble to the
Torture Convention reads that "the desire is to make more effective the
struggle against torture and other cruel treatment throughout the
world". Article 7 of the Torture Convention stipulates that the State
Party submit the case to its competent authorities for the purpose of
prosecution, assumed that the requirements from Art. 4-6 have been met
(territory issues).
5. The jurisdiction of the ICTY and ICTR
While
the ICC and Neuremberg Tribunal were established by a treaty, the ICTY
and ICTR were established by binding Resolutions of the UN Security
Council, acting under the provisions of Chapter VII of the UN Charter.
Recall that Articles 7 and 8 of the ICTY and ICTR Statutes provide the
Tribunals with both territorial and temporal jurisdiction.
5.1. The Appeals Chamber in the Tadić case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadić Interlocutory Appeal of 2 October 1995
remarks that, according to the principle of "Kompetenz-Kompetenz" or
"la compétence de compétence", the Tribunal has the incidental or
inherent competence jurisdiction to determine its own jurisdiction (para
18). It is a necessary component of in the exercise of the judicial
function of the tribunals and as such, this practice was accepted by
general international law.
With respect to the questioning of the
power of the UNSC to set up ICTY by means of a resolution, the Appeals
Chamber determines that the legal basis is to be found in the authority
of the Security Council, as was decided by the (paras 32-38 and 40).
5.2. Questioning the primacy of International Tribunals
Although
the Tribunals have concurrent jurisdiction with domestic courts, the
Tribunals have primacy with respect to the prosecution of international
crimes, as laid down in Articles 8 of the ICTR Statute and 9 of the ICTY
Statute.
The second ground of appeal in the 1995 Tadić Decision
on the Defence Motion by the ICTY Appeals Chamber attacks the primacy
of the International Tribunal over domestic courts (para 49).
However,
the plea of State sovereignty must be dismissed. The Appeals Chamber
provides us with several important considerations.
The public revulsion against similar offences [crimes against humanity]
brought about the establishment of an international judicial body by an
organ of an organization representing the community of nations: the
Security Council. This organ is empowered and mandated, by definition,
to deal with trans-boundary matters which may affect "international
peace and security". It would be a travesty of law, should the concept
of State sovereignty be allowed to be raised succesfully against human
rights. When an international tribunal such as the present one is
created, it must be endowed with primacy over national courts.
Otherwise, there would be a danger of international crimes being
characterised as "ordinary crimes" (para 58).
6. Do HRSO enjoy immunity before the ICC and Tribunals?
One
final remark on the immunity of HRSO from foreign jurisdiction. It
should be clear that an incumbent HRSO or a former HRSO with respect to
crimes committed in acting out official capacities, cannot enjoy
immunity before the ICC and the International Tribunals. Article 27 of
the Rome Statute stresses that HRSO do not enjoy immunity before the
ICC; Articles 7(2) of the ICTY and 6(2) of the ICTR read that the
"official position of any accused person, whether as Head of State of
Government, shall not relieve such person of criminal responsibility nor
mitigate punishment".
Posts tonen met het label Genocide. Alle posts tonen
Posts tonen met het label Genocide. Alle posts tonen
zondag 5 maart 2017
woensdag 15 februari 2017
On state responsibility: internationally wrongful acts and case law (Tadić, Nicaragua, 2007 Genocide case)
Crawford provides us with an accurate description of the rationale behind state responsibility:
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally wrongful act of a State when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally wrongful act of a State when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
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