Introduction

This article analyzes the interrelationship between state and individual criminal responsibility in international law. It argues that while international courts and related instruments governing these two regimes of liability suggest a clear separation between state and individual criminal responsibility, in practice they are closely connected.[1] By analyzing international jurisprudence, this article argues that there is no “pure separation” between state and individual criminal responsibility and that prior determinations of the latter significantly impact the establishment of former.[2] This article argues that a dependence on individual criminal liability would jeopardize the eventual accountability of the state by “hiding” behind the responsibility of the individual.

Background

The International Military Tribunal (IMT) and of the International Military Tribunal for the Far East (IMTFE) paved the way to the establishment of individual criminal responsibility in international law.[3] Individual criminal responsibility broadened with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and of the International Criminal Court (ICC).[4]These bodies ensure that individuals could no longer “hide” behind “abstract entities”, i.e. states.[5]

Inevitably, the affirmation of individual criminal liability raised questions with regard to its interaction with state responsibility, which is determined by the International Court of Justice (ICJ). Hence, what is still debatable in international law is the interrelationship between state and individual criminal responsibility and when the same criminal conduct gives rise to both regimes of liability.[6] Therefore, having in mind the significant development of individual criminal responsibility, its repercussions on state responsibility and how these two regimes of liability interact assume a particular importance.

Analysis

International instruments suggest that state and individual criminal responsibility are separate regimes of liability. The Statute of the International Criminal Court, the Draft Articles on State Responsibility and the Draft Code of Crimes against Peace and Security of Mankind imply this separation.[7] The International Law Commission acknowledged that the punishment of individuals who are organs of the state does not exhaust issues related to state responsibility.[8] Hence, state and individual criminal responsibility are considered separate regimes of responsibility in international criminal law giving rise to dual responsibility, i.e. state and individual liability.[9]

The separation between state and individual criminal responsibility is also suggested by the fact that different enforcement mechanisms deal with these two regimes of liability, i.e. the ICTY for individual criminal responsibility and the ICJ for state responsibility.[10] However, it is argued that this does not imply that these two regimes are not connected.[11] For instance, in Tadić the ICTY determined that the Bosnian-Serb politician was individually responsible from crimes committed in Bosnia and Herzegovina and in doing so it also considered issues of state liability.[12] When the ICJ was called to rule on Serbia’s responsibility during the conflict in former Yugoslavia, it criticized the ICTY for making recourse to rules of state responsibility and it found that Serbia was not guilty of genocide in relation to the crimes committed in Bosnia and Herzegovina.[13]

In the 2015 Genocide case, while the ICJ found that Serbia was not guilty of genocide in relation to Croatia for crimes committed during the conflict in former Yugoslavia, it reaffirmed the separation between state and individual criminal responsibility.[14] In particular, the ICJ noted that states may be held responsible under the Genocide Convention even though no individual was convicted of the crime.[15] Hence, the ICJ supported a clear separation between state and individual criminal responsibility, underlining their different legal regimes and aims.[16] However, this separation is blurred given that the ICJ considered ICTY’s prior determinations as “significant factor” in assessing Serbia’s genocidal intent.[17]Hence, the ICJ considered as significant factor the fact that the ICTY never charged any individual on account of genocide against the Croat population.[18]The ICJ added that mens rea, (psychological element) required by the Genocide Convention, must be established in order to determine state responsibility.[19] Hence, the ICJ applied typical requirements of individual criminal responsibility, i.e. mens rea.[20] However, considering that states are abstract entities, ICJ’s recourse to prior determinations on individual criminal responsibility appears to have been inevitable.[21]

Conclusion

While in theory international instruments and jurisprudence suggest a strict separation between state and individual criminal responsibility, in practice, these liability regimes are interrelated.[22] Arguably, this interrelationship presents signs of dependence, considering that individual criminal responsibility has significant repercussions on the determination of state responsibility.[23]

While the establishment of individual criminal liability contributes to the enforcement of international law, attention should not be shifted away from state responsibility.[24] Courts should be cautious in giving weight to prior determinations of individual criminal responsibility.[25] This would ensure that states could not find “shelter” behind prior determinations on individual criminal responsibility.[26]

[1]See infra notes 7-9.

[2]See infra note 21.

[3]See Article 6 of the IMT Charter and Article 5 of the IMTFE Charter. See generally Ciara Damgaard, Individual Criminal Responsibility for Core International Crimes 98-105 (2008). See also Pemmaraju Sreenivasa Rao, International Crimes and State Responsibility, in International responsibility Today 63, 64 (Maurizio Ragazzi ed., 2005).

[4]See Article 7 of the ICTY Statute and Article 6 of the ICTR Statute (providing individual criminal responsibility). See also ICC Statute: Article 25 (Individual criminal responsibility); Article 27 (Irrelevance of official capacity); Article 28 (Responsibility of commanders and other superiors) and Article 33 (Superior orders and prescription of law).

[5]See Trial of Major War Criminals before the IMT, Nuremberg, (Nov. 1945 – Oct. 1946), at 223 (stating that: “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”). See also Philippe Kirsch, President, International Criminal Court, Keynote Address at the Washington University Conference: Judgment at Nuremberg, at 2 (Sept. 30, 2006) (arguing that the Nuremberg trials constituted a historic moment in the development of international law). See generally Ciara Damgaard, Individual Criminal Responsibility for Core International Crimes 86 (2008) (analyzing the evolution of individual criminal responsibility).

[6]See Beatrice Bonafè, The Relationship between State and individual responsibility for international crimes 1 (2009).

[7]See Article 25(4) of the ICC Statute. See also Article 58 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts. See also Article 4 of the Draft Code of Crimes against Peace and Security of Mankind.

[8]See Article 4 of the Draft Code of Crimes against Peace and Security of Mankind. See also Article 7 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts.

[9]See Beatrice Bonafè, The Relationship between State and individual responsibility for international crimes 43 (2009).

[10]Id.at 193.

[11]Id. at 194.

[12]See Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, ¶¶ 105, 171 (lnt’l Crim. Trib. for the Former Yugoslavia July 15, 1999). See also Antonio Cassese, The Nicaragua and Tadić Test Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18 EJIL 655-56 (arguing that in order to determine the meaning of ‘belonging to a Party to the conflict’ pursuant to Article 4(A)(2) of the Third Geneva Convention, and to determine the degree of authority or control over those armed units in the meaning of the term ‘belonging’, it was necessary to make reference to principles of state responsibility that establish when individuals may be regarded as acting as de facto state officials, since international humanitarian law did not contain any criteria in this regard).

[13] See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶ 319 and 403 (Feb. 26, 2007) [hereinafter 2007 Genocide case].

[14] See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 2015 I.C.J., ¶ 402-440 (Feb. 3, 2015), [hereinafter 2015 Genocide case].

[15]See 2015 Genocide case at ¶ 128. See also 2007 Genocide case at ¶ 182.

[16]See 2015 Genocide case at ¶ 129. See also Andrea Bianchi, State Responsibility and Criminal Liability of Individuals, in The Oxford Companion to International Criminal Justice 16, 19 (Antonio Cassese ed., 2009) (arguing that the purpose of these two regimes of liability is different because while individual criminal responsibility has a punitive character for particular atrocious crimes, the primary purpose of state responsibility is to provide reparations for a wrongful act). See also Beatrice Bonafè, Reassessing Dual Responsibility for International Crimes, 73 Sequência (Florianópolis) 20 (2016).

[17]See 2015 Genocide case at ¶¶ 187 and 440. See also 2007 Genocide case at ¶ 217.

[18]See 2015 Genocide case at ¶ 440 (The Court also noted that Milošević’s indictment included charges of genocide in relation to the conflict in Bosnia and Herzegovina but no such charges were brought in the part of the indictment concerned with the hostilities in Croatia. Id. at 187). See also 2007 Genocide case at ¶ 374. But see 2007 Genocide case, Dissenting Opinion of Vice-President Al-Khasawneh at ¶ 42 (criticizing the Court for relying on the prosecutorial decisions of the ICTY in order to determine the responsibility of the state).

[19]See also 2015 Genocide case at ¶ 145. See also 2007 Genocide case at ¶ 187

[20]See also Beatrice Bonafè, Reassessing Dual Responsibility for International Crimes, 73 Sequência (Florianópolis) 25 (2016) (arguing that the ICJ applied the mens rea requirement, which is a typical requirement of the regime of individual criminal responsibility).

[21]See 2015 Genocide case at ¶ 145 (where the Court noted that in absence of a State plan expressing the intent to commit genocide, it is necessary to analyze individual conduct of perpetrators). But see 2015 Genocide case, Separate Opinion of Judge Sebutinde at ¶ 17-20 (criticizing the Court for taking into account the prosecutorial decisions of the ICTY which are of discretionary nature).

[22]See Beatrice Bonafè, The Relationship between State and individual responsibility for international crimes 200 (2009) (confirming the existence of points of contact between state and individual criminal responsibility in the Tadić case). See also 2015 Genocide case at ¶ 187 (where the ICJ confirmed that significance will be given to prior determinations of the ICTY).

[23]See Kimberley N. Trapp, State Responsibility for International terrorism 232 (2011) (arguing that determinations of individual criminal responsibility can play a decisive role in judicial determinations of state responsibility). See also André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, 52 ICLQ, 615 (2003) (arguing that prior findings related to individual criminal responsibility could influence future determinations on state responsibility). See also Beatrice Bonafè, Reassessing Dual Responsibility for International Crimes, 73 Sequência (Florianópolis) 35 (2016) (arguing that state responsibility appears dependent on the establishment of individual responsibility). But see Paola Gaeta, On What Conditions Can a State Be Held Responsible for Genocide?, 18 EJIL 641(2007) (arguing that state and individual criminal liability are fully independent of each other).

[24]See Trial of Major War Criminals before the IMT, Nuremberg, (Nov. 1945 – Oct. 1946), at 223 (affirming that international law will be enforced by punishing the individual). See also Beatrice Bonafè, Reassessing Dual Responsibility for International Crimes, 73 Sequência (Florianópolis) 36 (2016) (arguing that state responsibility should not be confined to the safe area where individual responsibility has already been established).

[25]See 2015 Genocide Case, Separate Opinion of Judge Sebutinde at ¶ 17-21 (criticizing the Court for taking into account prosecutorial decisions of the ICTY and for not having a global view of the evidence). See also 2007 Genocide case, Dissenting Opinion of Vice-President Al-Khasawneh at ¶ 35 (arguing that the Court failed to take into consideration additional evidence). See also Susana SáCouto, Reflections on the Judgment of the International Court of Justice in Bosnia’s Genocide Case against Serbia and Montenegro, 15 Hum. Rts. Brief 3 (2007) (arguing that the Court failed to explain why it chose not to pursue additional evidence apart from the ICTY records).

[26]See Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, ¶ 123 (lnt’l Crim. Trib. for the Former Yugoslavia July 15, 1999). See also Beatrice Bonafè, Reassessing Dual Responsibility for International Crimes, 73 Sequência (Florianópolis) 36 (2016) (flagging that states might evade responsibility if the determination of their liability is confined to the area of individual criminal responsibility).