Beruflich Dokumente
Kultur Dokumente
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JURIDICAL SCIENCES
Nirmit Agrawal
. 214105
[Number of Words (Excluding Footnotes): 2000]
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
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.
II.
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.
BROWNLIE, International law and the use of force by states, Oxford, 1963, pp 150-4
KRYSTYNA MAREK,
10
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).
III.
12
GEOFF GILBERT, The Criminal Responsibility of States, The International and Comparative Law Quarterly, Vol.
39, No. 2 (Apr., 1990), pp. 345-369.
13
14
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
17
Supra note 9.
18
JAMES R CRAWFORD, State Responsibility, Max Planck Encyclopedia of Public International Law.