Concept

of State Crimes under International law

WEST BENGAL NATIONAL UNIVERSITY

OF

JURIDICAL SCIENCES

Concept of State Crimes

under International law

Nirmit Agrawal
. 214105
[Number of Words (Excluding Footnotes): 2000]

Concept of State Crimes under International law

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................. 2
I. INTRODUCTION .................................................................................................................. 3
1. Origins.................................................................................................................................. 3
2. Development ........................................................................................................................ 3
II. CODIFYING STATE CRIMES .......................................................................................... 4
1. Nullum crimen sine lege (No crime without law) ............................................................ 5
2. Mens Rea.............................................................................................................................. 6
III. LEGAL CONSEQUENCES OF STATE CRIMES .......................................................... 6
IV. CONCLUSION ....................................................................................................................... 8

Concept of State Crimes under International law

I.

INTRODUCTION

Crimes against international law are committed by men, not by abstract entities,
and only by punishing individuals who commit such crimes can the provisions of
international law be enforced.1
1. ORIGINS.
State Crimes is a concept that can be traced back to Nuremberg trials, not in a positive
reference but a negative one. In Nuremberg, the tribunal treated neither Germany nor Japan as
criminal states but limited the criminal liability to individuals. This liability was limited to
individuals in spite of the fact that the acts of mass killings and torture were done by individuals
in their official capacity. Post Nuremberg, the Genocide Convention2, in Article IX provided that
for the crime of genocide there would be no form of state criminal responsibility. The relation
between Nuremberg trials and Genocide Convention is unique as the Convention was drafted to
give flesh and blood to cases like Nuremberg, where the tribunal held that state officials would
be responsible in their personal capacity3 and not the state. In the Genocide case4, ICJ dealt with
the issue of whether states can be responsible for Genocide. Although, the Court held that Serbia
would be responsible for genocide under the Genocide Convention of 1948 as it would be the
responsibility of states to not commit genocide, it eventually held individuals criminally
responsible.
2. DEVELOPMENT
International community has always prevented imposition of criminal responsibility on states.
The idea behind preventing states from being criminally responsible can be inferred from the
example of Convention for Suppression of Prostitution5 which punishes any person who forces
1

Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 19451

The Convention of Prevention and Punishment for Genocide, 1948.

Statute of the Nuremberg Tribunal, 7, (the official position of defendants, whether as Heads of State or
responsible officials in Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment).

Bosnia and Herzegovina v. Serbia and Montenegro, 2007 ICJ 2. ( Genocide judgment ).

Convention for Suppression of the Traffic in Persons and of Exploitation of Prostitution, 1949.

Concept of State Crimes under International law

another into prostitution. This Convention requires states to take measures to prevent prostitution
but does not hold the state criminally responsible. Can state be held responsible for act of
exploiting prostitution where such act is committed only by some of its citizens or officials? No
courts would go as far as to answer this question in affirmative because of the absurdity of
holding a non-living entity responsible for exploiting prostitution.6
In later years, the floodgates to states being criminally responsible were opened by ILC through
Draft Articles on State Responsibility. Article 19 of the International Law Commissions Draft
Articles on State Responsibility defines an international crime as a breach of international
obligation, which is essential for the protection of fundamental interests of the international
community. It would be a crime recognized by the whole community. Article 19 introduces the
concept of state crimes where an international state crime would be a wrongful act recognized by
the whole community such as aggression, slavery, genocide and colonial domination. This paper
will be an analysis of Article 19 and how the isolated incident of codifying state criminalization
was a fail and flawed attempt by the ILC.

II.

CODIFYING STATE CRIMES

The first and probably the last attempt in the world history to criminalize acts of the state was
undertaken by the International Law Commission through Draft Articles on State Responsibility.
A major debate within the ILC was that Article 19 of the Draft articles, which introduced the
separate category of "international crimes". Article 19 has faced immense criticism since its
codification due to faulty drafting and introducing the concept of criminal responsibility of states
that has been historically declined by scholars of international law. Special rapporteur also
accepted the vagueness surrounding the definition of international crimes.7 These crimes
would be state crimes, which would offend the international community as a whole. The
proposal of adding such a provision was very contentious but gathered enough support to have
been included in the draft articles. The acceptance by states towards ILCs step of introducing
state crimes under international law was and still is a very decisive one.

PAOLA GAETA, On What Conditions Can a State Be Held Responsible for Genocide?, The European Journal of
International Law, Vol. 18 No. 4, 631648.

International Law Commission Yearbook, 1976, vol. II, Part Two, p. 75.

Concept of State Crimes under International law

1. NULLUM CRIMEN SINE LEGE (NO CRIME WITHOUT LAW)
Ian Brownlie has criticized Article 19 as embedding a concept which has no legal value and
unjustifiable on principles of international law. Brownlie believes that there exist at least two
major problems with this concept. First, the problem of imposing penal sanctions on states and
second the instability such a concept would cause under international law.8 The crux of Article
19 is flawed because determination of an internationally wrongful act is dependent upon the
acceptance of the crime by the international community, making other states a judge for Article
19. Marek points out the flaw as a breach of nullum crimen sine lege according to which, law
determines and defines an offence. In Article 19, the offence is not determined or defined by law
but is rather left on the community to decide9. The vague and subjective criteria of 'quality' of
breach and 'recognition' of criminal act by the community do not put forward a law but a vague
concept of what state crimes can be. Paragraph 3 of Article 19, being conscious of the difficulty
of the vague definition, attempts to clarify the position by extending the definition to codify that
international crime may result from aggression, colonial domination, apartheid or massive
pollution of atmosphere or sea. This extension is an illusory definition as it limits the definition
to the fact that the crime 'may' result from one of the given acts. It just provides for an inclusive
list without any assurance that other breaches may also be called crimes. The vagueness in the
illustrations fails to clarify the definition of international crimes and in place of which ILC
should have codified a more illustrative commentary instead.10
ILC has also failed to identify the international community in this Article. Even if it is assumed
that such a community exists, the idea of the community having a common interest and view on
every international wrongful act would be an impossible one in the practical world, as has been
also recognized by the court in the case of Island of Palmas11.

BROWNLIE, International law and the use of force by states, Oxford, 1963, pp 150-4

KRYSTYNA MAREK,

10

Criminalizing state responsibility, revue belge de droit international, 14 (1978-11).

JAMES CROWFORD- Special Rapporteur, STATE RESPONSIBILITY DOCUMENT A/CN.4/490, First report on
State responsibility.

11

United States v. Netherland Perm. Ct. of Arbitration, 2 U.N. Rep. Intl Arb. Awards 829 (1928), (Island of
Palmas) (International law, like law in gnral, has the object of assuring the coexistence of different interests
which are worthy of lgal protection).

Concept of State Crimes under International law

2. MENS REA.
It received opposition from numerous states as including the concept of crime within inter-state
relations and criminalization of actions of state was against the general principles of law. The
concept embedded in Article 19 went against the basic principle of law that a crime should have
the essential of mens rea i.e., intention of a person to commit a crime. Although not all domestic
crimes require mens rea, crimes, which would be considered universally wrong by all states,
would definitely be of a nature where mens rea would be necessary. Now whether a state can
have mens rea is a question open to debate but mostly proving that the state had mens rea to
commit a crime would depend on the officials of the state and their actions.12 The Article has
been widely criticized because scholars believe that states cannot have mens rea to commit a
crime, and holding a state liable for acts of its officials would be holding state liable for someone
elses mens rea.

III.

LEGAL CONSEQUENCES OF STATE CRIMES

Article 19 differentiates between an international crime and an international delict, defining

international delict as an internationally wrongful act, which is not an international crime.
Through this distinction, ILC makes it clear that consequences for international crimes would be
more severe than that of international delicts.
The major problem faced by recognition of such crimes is the trial of these cases by a competent
authority. In 1995-1996, commission tried to find a solution to these issues. Commission,
inspired by the Vienna Convention13, which allows disputes over jus cogens norms to be referred
to ICJ, favored reference to ICJ for issues of state crimes. In 1995, in his report, the Special
Rapporteur also favored recourse to ICJ. Although, the Commission favored ICJ, there were two
problems with it. First, the problem with Court's jurisdiction to try the case as other states would
not accept compulsory jurisdiction over international crimes. Second problem was practical

12

GEOFF GILBERT, The Criminal Responsibility of States, The International and Comparative Law Quarterly, Vol.
39, No. 2 (Apr., 1990), pp. 345-369.

13

Vienna Convention on Law of Treaties, 1969.

Concept of State Crimes under International law

difficulties, where generally ICJ takes four to five years to reach a judgment, which would be
detrimental to the concept of international crimes making litigation unmanageable.14
Although the commission favored ICJ, in effect arbitration was the most preferred choice. The
commission decided that cases as such should be limited to negotiation and arbitration where
arbitration would be binding and will be initiated by the state, which has alleged to commit a
crime, believing itself to be innocent. The state can use arbitration as a method to prove this
innocence where the tribunal will be more effective than ICJ and a quicker method of
resolution.15 One of the major problems with arbitral proceedings would be acceptance of the
award by all states to consider it binding.16 Other problem with arbitration would be the fact that
the commission considered the accused party to initiate arbitration whereas in most cases, the
affected party would initiate arbitration.
The nature of punishment that would be awarded to criminal state is another major problem
with state crimes. The impossibility of putting states in prison or executing them would be a
practical consideration. The only punishment possible could have been a new type of sanction,
which would fit the severity of an international crime. Such sanction could either be complete or
partial blacking out of economic relations, means of communication or even diplomatic
relations.17

14

UN Doc A/51/10, at 167.

15

DEREK WILLIAM BOWETT, Crimes of State and the 1996 Report of the International Law Commission on State
Responsibility, European Journal of International Law (Florence), vol. 9, No. 1, 1998, pp. 163173.

16

Supra note 14, at 166.

17

Supra note 9.

Concept of State Crimes under International law

IV. CONCLUSION
In light of the highly controversial nature of international crimes attributable to the state, ILC
skipped any mention of international crimes of states in the 2001 draft articles. If ILC were to
introduce the concept again, it would be the most difficult concept that the international
community would have to deal with. In 2001 Articles, the commission gave proper consideration
to the proposals given by the Special Rapporteur and various other international law jurists. The
notion of state crimes was finally discarded and replaced by 'serious breach of peremptory norm
embedded in Article 40 of the 2001 ILC Articles.18 If international law were to introduce state
crimes as a concept, it would require further analysis and better codification. The establishment
of an international criminal court is unreal, where even criminalizing of international state
responsibility is unreasonable.

18

JAMES R CRAWFORD, State Responsibility, Max Planck Encyclopedia of Public International Law.