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. . . . . NOT FOR ATTRIBUTION OR QUOTATION . . . . .

STATE RESPONSIBILITY IN THE ERA OF INDIVIDUAL CRIMINAL CULPABILITY

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The Problem

This is a tale of three international legal instruments: each one hugely important in its own right. Each deals at least in part with responsibility for egregious violations of human rights and humanitarian law.

One the Rome Statute of the International Criminal Court establishes personal criminal liability for genocide, crimes against humanity, war crimes and the crime of aggression.1 This liability is enforced by the new International Criminal Court. The remit of this regime is to apply legal inhibitors to regulate the conduct of individuals.

Entered into force July 1,2002, art. 5 (1).

Second is the Genocide Convention,2 which establishes the responsibility of states to prevent and to punish genocide, conspiracy to commit genocide, incitement and attempt to commit genocide and complicity in genocide.3 Article IX of the Convention accords jurisdiction to the International Court of Justice to adjudicate the responsibility of a State for genocide or any of the other acts related to genocide. The remit of this regime is to apply legal inhibitors to regulate the conduct of states.

Third is the International Law Commissions draft articles on Responsibility of States for internationally wrongful acts. It was adopted by the International Law Commission and received by the United Nations General Assembly in 2001.4 The draft seeks to enumerate the norms applicable to determining the responsibility of a state for acts attributable5 to it that constitute a breach of an international obligation.6 These rules are quite clear in stipulating that wrongful acts of persons in ostensible authority may be attributed also to the states they serve. Under Article 8, acts committed by individuals shall be considered an act of State under international law if the person or groups of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the

2 3

78 UNTS 277. Entered into force January 12, 1951. Id. Arts I and III. 4 A/CN.4/L.602/Rev.1&2, 9 Aug.2001. 5 Id. Art 2(a). 6 Id. Art.2(b).

conduct.7 Moreover, Article 9 adds, the conduct of a person or group of persons shall be considered an act of State under international law if the person or group of persons is in fact exercising elements of governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.8 The Articles on Responsibility of States thus make quite clear that the acts of empowered individuals are also attributable to the state that empowered them.

While the Articles do not specify recourse to any particular tribunal, the juridical attribution of state responsibility is obviously to be pursued in the International Court of Justice in instances where it has jurisdiction, or in other judicial and quasijudicial fora to which states are authorized by agreement to turn for resolution of a legal dispute. The Articles, as their mandate is specifically confined to state responsibility, do not concern themselves with the responsibility of persons, as such. Yet, they do conclude with the admonition that the provisions are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.9 In other words, the Responsibility regime stipulates that its text is to be understood as not derogating from individual responsibility, even when individual acts are attributable to states.

7 8

Id. Art.8. Id. Art.9 9 Id. Art. 58.

While this is helpful in clarifying one aspect of the intersection of state and personal responsibility, it does not shed light on its obverse: that is, does (or should) individual responsibility derogate from, or alleviate, state responsibility? Articles 8 and 9 of the ILC Articles can be read to assume that it does not, for theses provisions define the requisites for attributing the crimes of individuals to the state. Nevertheless, the question has assumed unexpected resonance in the light of recent decisions by the I.C.J. which cast some doubt on whether state responsibility for high crimes such as genocide will continue to be taken seriously in the era of increasing personal responsibility. Why should there be two remedies for one wrong?

This essay is an attempt to begin to examine that jurisprudentially important question.

The need to think about it with some urgency arises from the recent decisions by the International Court of Justice in respect of a claim brought by the Federal Republic of Yugoslavia in the NATO cases10 and the effect those decisions may have on pending litigation brought against the formerYugoslavia by the Republic of Bosnia and Herzegovina (and a parallel case brought by the Republic of Croatia).
10

Cf. Case concerning the legality of the use of force (Serbia and Montenegro v. France), I.C.J., 15 December, 2004.

The genocide cases brought by Bosnia and Croatia, not yet heard on the merits, implicitly raise the question whether a state should still be held accountable for genocide, now that there are rules, and a tribunal for applying and enforcing them, against individual perpetrators of such crimes. In other words, while the Articles on State Responsibility may seem to make clear that they do not diminish the liability of individuals for international wrongful acts that are also attributable to states, is it also to be assumed that the Treaty of Rome (and, for that matter, the earlier Security Council resolutions establishing the Criminal Tribunals for the Former Yugoslavia and for Rwanda11), in creating new criminal law remedies applicable to individual offenders, did not thereby make obsolete the traditional remedies against states envisaged by the Genocide Convention and some of the Articles on State Responsibility?

That question cannot be addressed without reference to the genocide case brought by Bosnia against the former Yugoslavia, which will be heard by the I.C.J. next February, or without contemplating the potential effect on it of the decisions in the NATO cases.

The Bosnia Case

11

S.C. Res. 827 of 25 May 1993 establishing the International Criminal Tribunal for the Former Yugoslavia; S.C. Res. 955 of 8 November 1994 establishing the International Criminal Tribunal for the Former Rwanda.

Bosnia, in seeking to have the ICJ determine that the former Republic of Yugoslavia is responsible for massive violations of the Genocide Convention, including efforts to destroy in whole or in part its Muslim (Bosniak) population through killings, rape and the targeted destruction of cultural property, has invoked Art. IX of the Genocide Convention, which, it has argued, gives the Court jurisdiction over such disputes between state parties.12 So far, the judges have ruled, in 199613 and again in 2003,14 that the Court does have jurisdiction to determine whether the respondent state bears responsibility for acts in Bosnia amounting to genocide and conspiracy or incitement to commit genocide.

I must disclose, at the outset, that I am a counsel for Bosnia and, thus, an interested party in the litigation. At the same time, however, I am also an academic, and, as such interested in the state of the jurisprudence pertaining to responsibility for gross violations of human rights: in particular, of genocide. At issue is the extent, if any, to which the law might have shifted away from its emphasis on the responsibility of states and in the direction of personal

12

Memorial of the Government of the Republic of Bosnia and Herzegovina, 15 April 1994, pp.129-183. 13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 1996(II), p 595. 14 Application for Revision of the Judgment of 11July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 2003, p .

responsibility for crimes. At issue, too, is whether justice would be served by such a paradigmatic shift from state to personal responsibility.

The same question has an institutional aspect. Given the rise of criminal tribunals with jurisdiction over criminal activity by individuals, is there any longer any justification for the I.C.J adjudicating as to the responsibility of states for genocide and other crimes against humanity? Is the very notion of state responsibility itself becoming an antiquated relic, a vaguely embarrassing reminder of the primitive and unjust concept of collective guilt which was once widely accepted but is no longer defensible in the light of emerging international legal recognition of individual rights and personal accountability?

The NATO Cases

In its December, 2004 NATO decisions, the ICJ concluded that the admission of Serbia and Montenegro to membership in the United Nations on November 1, 2000, after the overthrow of its previous pariah regime,15 had clarified its hitherto sui generis position. Whatever that previous twilight status, the Judges concluded, it could not have amounted to its membership in the Organization.16 In other words,
15 16

G.A. Res. 55/12 of 1 November 2000. Serbia and Montenegro v. France, id. n. 10, para. 77.

the applicant - or its predecessor, Federal Yugoslavia - were held not to have been members of the U.N. during the critical period when its claim against NATO arose.

This conclusion had great significance, both for the NATO case and, indirectly, for Bosnias claim under the Genocide Convention. By holding that Yugoslavia had not been a member of the U.N. when it brought its claim of genocide against the NATO states before the Court, it followed that Belgrade could not pursue its claim in that forum,17 since Article 35(1) of the Courts Statute limits access to States parties to the Charter.

The Court also concluded that the genocide action could not lie under Article 35(2) of the Statute, which authorizes the hearing of cases involving non-members under special provisions contained in treaties in force. Applying originalist interpretation, the Court held that this proviso only refers to treaties in force at the time that the Statute came into force...18 and, thus, did not provide a basis for jurisdiction under the Genocide Convention, which had only entered into force some five years later, on January 12, 1951.

17 18

Id. para.90. Id. para. 102.

The majoritys reasoning in the NATO cases thus defeated Belgrades claim. This was, nevertheless, a set-back Belgrade might well have welcomed in view of its potential collateral effect on Bosnias much more grievous allegations against it.

Whether this proves to be a valid conjecture or not will have to await further action at the ICJ next year. Even before that, however, it is not disrespectful of the eight judges who subscribed to the reasoning behind the NATO decisions to wonder why they chose so far-reaching a basis for dismissing Belgrades suit, given that seven other judges, with unusual vigor, had advocated dismissal on quite different, more modest, grounds that would not have had the same peremptory impact on Bosnias parallel case.19

One must also wonder why eight judges, in the NATO case, were so willing to dismiss their Courts own previous reasoning, adhered to for almost a decade of preliminary skirmishing in the Bosnia case, that had consistently upheld the ICJs jurisdiction over the former Yugoslavia, even after its readmission to the U.N.20 At recently as 2003, the Court had opined that the resolution of the General Assembly admitting the newly-renamed Republic of Serbia and Herzegovina to membership
19

Cf. Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, AlKhasawneh, Buergenthal and Elaraby. See, also the separate opinion of Judge Higgins. 20 Application for the Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v .Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), I.C.J. Reports 2003, p. 31, para. 70.

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cannot have changed retroactively the sui generis position which the Federal Republic of Yugoslavia found itself in vis-a-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court.21

It was perfectly clear, of course, that a virtually unanimous Court was eager to abort Belgrades flimsy genocide case against NATO. There were, however, many ways this could have been done. For one, the Judges could have dismissed the case on the merits. Or, as seven judges pointed out in their separate opinion, the case could have been dismissed on the ground that Yugoslavias acceptance of the Courts Art. 36(2) compulsory jurisdiction, having been filed on 26 April, 1999, only three days before the institution of proceedings against NATO, came too late to cover the substance of the dispute, which hearkened back to NATOs air raids begun on 24 March, 1999.22

A possible reason why the eight judges might have chosen the most radical of the courses for dismissal open to them is that they (or some of them) may have welcomed this opportunity to escape not only from the NATO litigation, but also from the other genocide cases brought by Bosnia and Croatia. They may have regarded these as unnecessary impositions on their resources in the light of work

21 22

Id. para. 71. This was the reasoning adopted by the 7-judge separate opinion, id. n. 19, paras. 6,7. Under this reasoning the Court would have concluded that it did not have jurisdiction ratione temporis.

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already being done by the International Criminal Tribunal in bringing to book the leaders responsible for crimes against humanity committed in the territory of what had once been the Yugoslav Federation.

Might reasoning along such lines account for some of those judges recalcitrance? We cannot know, of course. We do know, however, that in dismissing the NATO cases, the eight judges consciously chose grounds that could be used to challenge (for the third time) the Courts jurisdiction in the two pending cases involving claims of genocide.23 In doing so, they have perhaps inadvertently raised the wider question whether genocide cases still belong in the ICJ.

Reasons Against State Responsibility for Genocide

Oppenheims Fourth Edition notes that, while formerly states alone used to be the subjects of international law...international responsibility now also involves consideration of the position of individuals and of international organisations.24 This is a change from the historic notion that it is the state, and only the state, which is responsible for the unlawful acts of its citizens, even for the unauthorized
23

In their separate opinion, the seven judges said that the majoritys approach could call into question the solutions adopted by the Court with respect to its jurisdiction in the case brought by Bosnia-Herzegovina against Serbia and Montenegro for the application of the Genocide Convention. Id. para. 13. 24 Oppenheims International Law, Ninth Edition, Sir Robert Jennings and Sir Arthur Watts, eds., p. 500, para. 45 (1992).

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acts of its officials.25 As this expansion of the international law of responsibility has evolved, it has seemed to be accepted that traditional notions of the responsibility of states could coexist with the newer principles of international criminal law which are based on individual responsibility of persons.

The Genocide Convention 26 itself proceeds on the basis of dual responsibility. It deals primarily with the trial and punishment of persons who are implicated in acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group... (Art.II). Nevertheless, the treaty also recognizes that acts may implicate the responsibility of a State for genocide and that such instances should be referred to the ICJ (Art. IX).

In pursuing its principal purpose of promoting the prevention and punishment of genocide, the Convention requires that persons charged with the listed offences be brought before a competent tribunal of the State in which the act was committed (Art. VI), but it also envisages trials of accused persons before such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. (Id.) Forty years after the Convention came into force, the international community brought into being the International

25 26

Garcia and Garza (United Mexican States v. United States) 44 Intl. Arb. Awards 119 (1926). Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260(III) of 9 December 1848, 78 U.N.T.S. 277.

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Criminal Tribunal for the Former Yugoslavia,27the first of the international criminal courts with jurisdiction over persons accused of genocide and other high crimes in international law. Its role has since been augmented by the Treaty of Rome establishing the International Criminal Court, a tribunal with a far broader jurisdiction over persons.28

While the ICC has yet to bring an indictment to trial, the ICTY has already concluded dozens of cases against persons charged with genocide, war crimes and crimes against humanity. Its companion court in Arusha, the International Criminal Tribunal for Rwanda, has pursued cases against many more persons charged with criminal conduct in connection with the Rwanda massacres. It is thus arguable that the intent of Article VI, the Genocide Conventions prophetically envisaged obligation to hold individuals accountable before international tribunals, has been realized. Consequently, one might conclude that recourse to Art. IX is no longer necessary. Or one might not.

It is certainly maintainable, as a value-preference, that with the rapid development of the law and institutions for affixing and punishing personal liability for

27 28

Id. n. 11. Rome Statute of the International Criminal Court. Entered into force July 1, 2002. 2187 UNTS 90.

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international crimes, the concept of state responsibility for such acts can be phased out.

Implementing that value preference, however, has large implications and demands close examination. In support of it is the evident truth that crimes such as genocide are committed by individuals. Even when they purport to act in the states interest, they seldom do so with the participation of the entire population. While there is general agreement that individual perpetrators should be captured, brought to trial and punished, it is less evident that the state should also be held to account for the deeds of a few. State responsibility, some argue, is a morally more suspect notion than is individual accountability, for it affixes responsibility on an entire collective of persons: the nation. While the consequences of a finding of state responsibility are only civil, rather than criminal -- populations are not put in jail, but they may be made to bear the cost of reparations the presumption of collective guilt underpinning the concept of state responsibility raises some difficult questions of fairness. It may even be thought to distort the true topography of moral responsibility, lumping willy-nilly those in the populace who actively supported the crimes committed by leaders in their name and those who did not.

Arguably, too, state responsibility harkens back to a Grotian time when all persons, for purposes of international law, were chattels of the state and injury to a person

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was cognizeable only as an injury to that persons state. In those circumstances, it followed logically that the wrongs committed by persons should, similarly, have been charged against their state. As international law lately has evolved, however, to a recognition of persons as subjects, and not mere objects, of rights and duties, the notion that states commit crimes may be thought to have taken on a somewhat musty aura of a bygone era. Surely, we now recognize that crimes are committed not by collectivities but by individuals. To the extent that individual responsibility, like individual rights, is becoming increasingly cognizable at international law, is it not time to retire the concept of state responsibility?

The Case for State Responsibility

My answer to that question is an emphatic no.

Once again, it is useful to resort to the analysis, in Oppenheims Ninth Edition, of the responsibility of the state for the wrongful acts of its citizens: a states responsibility for the acts of a private person is not vicarious responsibility stricto sensu. The state is in international law not legally responsible for the act itself, but for its own failure to comply with obligations incumbent upon it in relation to the acts of the private person: those acts are the occasion for the states

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responsibility for its own wrongful acts, not the basis of its responsibility.29 The analysis goes on to note that a states responsibility for unauthorized acts of its officials...is, however, more nearly a true vicarious liability.30 Implicitly, this recognizes that authorized acts of a states officials are directly, and not merely vicariously, attributable to the state, for it is the state which authorized those actions, or failed to stop them, or failed to punish those who carried them out.

Oppenheim goes on to assert that the states responsibility calls for it to take certain preventive measures and requires it to secure that as far as possible the wrongdoer makes suitable reparation, and if necessary to punish him. But these preventive and remedial obligations of the state...are themselves obligations for the breach of which (as by refusing to take the remedial action which is required) the state bears direct responsibility.31

Thus does modern international law distinguish between the criminal act of a person: whether a prime minister, field commander, or leader of a private posse, and the failure of a state to live up to its legal responsibility. Although both may proceed from the same facts, they involve the breaches of quite separate

29 30

Id. p.501, n.13. Ibid. 31 Id. p.502, para. 145.

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obligations. In the instance of genocide, the individual is in violation of international criminal law while the state is in violation of its obligation to prevent and to punish the commission of such crimes.

While this may be sufficient to satisfy the lawyer as technician, is it sufficient also to satisfy the lawyers proclivity to make the law, whenever possible, enunciate a moral policy? It is that second concern with the moral mandate of law which forces us to ask whether it is fair to attribute to an entire population of a state the guilt of those who commit genocide. To address that concern it is not sufficient, albeit perfectly correct, to point out that the guilt of the individuals and the guilt of the state are not based on the same malfeasance. The individual is guilty of killing, raping, or otherwise seeking to destroy an ethnic group. The state is guilty of facilitating, tolerating or failing to prevent and punish those acts. Still, it may be argued, even those acts attributed to the state are the acts of persons and not of the society as a whole.

To this I would respond that, on the contrary, they are the acts of the society as a whole unless it can be shown that the conditions of governance in that state, at the critical time when genocide was being planned and executed, were such that the people, by asserting their power, could not have resisted.

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In the age of mass communications and expanding democratisation, it is very unlikely that the people of a state in which genocide is taking place, or whose leaders are perpetrating genocide elsewhere, are unaware, or do not have the means to become aware, of what is being done or failing to be done - in their name. It is both fair and morally right that persons who could and should have resisted, but did not, should share collectively the legal consequnces of the states failure to live up to its legal and moral responsibility.

There may well be extreme circumstances in which popular resistance can be shown to have been futile or impossible. The law should take that into account. An example is the Israeli law criminalizing the conduct of those who served as Kapos in Nazi concentration camps, but exempting anyone who cooperated with the captors if he did...the act in order to save himself from, the danger of immediate death threatening him and the court is satisfied that he did his best to avert the consequences of the act....32 When it comes to state responsibility, one is imposing consequences on the polis of the state and the law should take into account the alternatives, if any, open to the polis at the time the acts were committed. Evidence of the impossibility of popular resistance to evildoers, while not vitiating a finding of state responsibility, should mitigate the measure of damages assessed.

32

Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, Laws of the State of Israel, vol.4, 5710-1949/50.

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In general, however, it is a good and moral policy for the law to put persons on notice that they cannot escape responsibility for the crimes committed by those ostensibly acting, or failing to act, in the name of the state unless they exercise their legal and moral obligation to dissociate themselves from those persons actions. Where the people whose leaders are committing international crimes have the option to vote them out, or to stage mass protests against those acts, and failto do so it is not only morally appropriate but good social policy that they be made to assume a degree of responsibility for the things done in their name. They should not be allowed to escape that responsibility in the knowledge that, if the crimes of their leaders fail to accomplish the common purpose, the punishment of a few leaders will expiate the peoples complicity.33

By ensuring that state responsibility for genocide is not displaced by the development of personal liability for crimes against humanity, the law does, and should, alert the citizens of the modern participatory political community that they and not only a few egregiously culpable individuals -- are, and should be, held collectively accountable.

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The deliberate choice by international criminal justice institutions to selectively blame a handful of individuals...erases...the involvement of ordinary [persons]....This, in turn, leads to a retributive shortfall, insofar as only a few people receive their just deserts while many powerful states and organizations avoid accountability. Mark A. Drumbl, Sands: From Nuremberg to The Hague: The Future of International Criminal Justice (book rev.), 103 Mich. L. Rev.1295, 1313-14 (2005).

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