International 'Criminal' Responsibility

Antinomies

Ottavio Quirico

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351597548
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

In the course of the 20th and 21st centuries, major offences committed by individuals have been subject to progressive systematisation in the framework of international criminal law. Proposals developed within the context of the League of Nations coordinated individual liability and State responsibility. By contrast, international law as codified after World War II in the framework of the United Nations embodies a neat divide between individual criminal liability and State aggravated responsibility. However, conduct of State organs and agents generates dual liability. Through a critical analysis of key international rules, the book assesses whether the divisive approach to individual and State responsibility is normatively consistent. Contemporary situations, such as the humanitarian crises in Syria and Libya, 9/11 and the Iraq wars demonstrate that the matter still gives rise to controversy: a set of systemic problems emerge. The research focuses on the substantive elements of major offences, notably agression, genocide, core war crimes, core crimes against humanity and terrorism, as well as relevant procedural implications.

The book is a useful resource for practitioners, policymakers, academics, students, researchers and anyone interested in international law and politics.

1 From monism to dualism

Introduction

The criminal responsibility of natural persons developed during the course of the 20th century. On the one hand, this has led to the adoption of international instruments that (transnationally) harmonise domestic crimes, criminal procedures and sanctions, such as the International Convention for the Suppression of Terrorist Bombings.¹On the other hand, the trend has prompted the adoption of international instruments that outline international crimes, procedures and sanctions, particularly the Statute of the ICC. The two layers interact, with respect to both substance and procedure.²

Critical instruments have also been adopted in the matter of State responsibility, which sometimes qualifies as ‘criminal’ and at other times as ‘aggravated’. Thus, for instance, the Genocide Convention regulates genocide with respect to both individual and State conduct. However, whilst some commentators talk about ‘State criminality’³,most writers are hesitant to go beyond the recognition of State responsibility as ‘aggravated’⁴.Such an approach initially developed from the 17th century along the lines of the perception of war as being State aggravated conduct, which has subsequently extended to other acts,⁵ such as genocide and terrorism. Hesitation and discontinuous terminology arise from the equal sovereign nature of States in international law, whereby the horizontal character of sovereignty clashes with the vertical centralisation of criminal law and procedure.

This chapter provides a historical overview of key regulation, de lege lata and ferenda, in the matter of individual criminal responsibility and State aggravated, or criminal, responsibility, under particular and general international law. The analysis not only presents the different regulatory initiatives from a historical perspective, but also explores them through a substantive and procedural legal lens. The aim is to highlight how the two forms of responsibility have evolved pre- and post-World Wars I and II. The study follows a chronological order, which underscores the controversial evolution of the relationship between individual and State responsibility. Within this framework, basic common strands emerge, whereby consistent initiatives are contextually explained, such as regulation prompted by the League of Nations or the Draft Code of Offences against the Peace and Security of Mankind (DCOPSM) developed by the UN ILC. The plurality of approaches helps to underscore the evolution of the theoretical concepts that underpin the different regulatory initiatives, notably as concerns the universal scope and nature of the obligations breached by aggravated, or criminal, responsibility of natural persons and States.

1.1 Monism: coordinating individual and State responsibility prior to World War II

1.1.1 The dawn of criminal responsibility in international law: proposals for a universal criminal code (1860–1919)

The first proposal for an international criminal court goes back to Gustave Moynier, President of the International Committee of the Red Cross (ICRC). Moynier suggested the establishment of an international criminal jurisdiction to adjudicate upon and prevent breaches of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field⁶.Different initiatives followed at the beginning of the 20th century, aiming to define a system for international criminal law from the standpoint of both substance and procedure. Notably, Moynier’s proposal is part of the progressive codification of the rules on the peaceful settlement of international disputes and the regulation of the law of war via the Hague Conventions of 1899 and 1907⁷,which built upon core regulation embedded in the 1964 Geneva Convention. These projects constitute the background for codification developed after World Wars I and II.

After the end of World War I, on 25 January 1919 the Paris Peace Conference held in Versailles established a Commission to assess the responsibility of individuals allegedly accountable for the facts that took place during the war. The Commission submitted a Report envisaging the establishment of an international criminal tribunal⁸. As a follow-up, the Conference adopted Article 227 of the Versailles Treaty,⁹ which arraigned William II of Hohenzollern, former German Emperor, for waging war as ‘a supreme offence against international morality and the sanctity of treaties’¹⁰. A ‘special tribunal’, comprising five judges appointed by the United States (US), Great Britain, France, Italy and Japan, had jurisdiction over the offence. By contrast, Articles 228 and 229 established the trial of other war criminals by military tribunals of the Allied and Associated Powers. According to Hans Kelsen, the acceptance of such provisions by Germany signified recognition of individual criminal responsibility for acts of State¹¹. However, the Netherlands refused to extradite the Emperor and Germany refused to surrender officials accused of war crimes. The Allied Powers therefore agreed to the officers being judged by the Supreme Court of Leipzig, so as not to destabilise the newly established Republic of Weimar. The Court only convicted twelve officers with light sentences.¹²

A bilateral approach to invocation of State responsibility characterises this historical period, based on the principle of reparation. However, some scholars suggested the establishment of an aggravated regime of responsibility, whereby breaches of erga omnes obligations were supposed to trigger collective State reaction and aggravated sanctions, including adequate satisfaction, fines and assurances of non-repetition¹³.In this respect, the Treaty of Versailles imposed on Germany sanctions under Articles 159–213 that some scholars considered to be mainly aimed at punishing State criminality, notably for aggressive war, for instance, the obligations to demobilise and reduce armed forces under Article 159¹⁴.Furthermore, Articles 11 and 16 of the Covenant of the League of Nations qualified war as an erga omnes breach, affecting ‘the whole League’ and entailing specific sanctions, such as the severance of financial and trade relations. The Council of the League was mandated to coordinate the collective enforcement of these sanctions.

1.1.2 Interwar coordination (1920–1939)

1.1.2.1 Triggering initiatives within the League of Nations

Following the experience of World War I, different initiatives were undertaken within and outside the League of Nations in order to establish a system of international criminal law. Within the context of its work on the establishment of a PCIJ under Article 14 of the Covenant of the League, an Advisory Committee of Jurists put forward a first project. In 1920, the President of the Committee proposed the adoption of a Recommendation to the Council and the General Assembly of the League on the institution of a High Court of International Justice. This would have had competence ‘for the purpose of trying crimes against international public order, and against the universal law of nations’ (Article 3)¹⁵. The Court could adjudicate upon a referral by the Assembly or Council of the League of Nations (Article 4).

Article 3

The High Court of Justice shall be competent to try crimes constituting a breach of international public order or against the universal law of nations, referred to it by the Assembly or by the Council of the League of Nations.

Article 4

The Court shall have the power to define the nature of the crime, to fix the penalty and to decide the appropriate means of carrying out the sentence.

More generally, the possibility was envisaged of establishing the compulsory competence of the PCIJ after exhaustion of diplomatic means¹⁶, which was nonetheless eventually abandoned in favour of consensual jurisdiction under Article 36 of the PCIJ Statute. This approach followed critiques by France and the United Kingdom (UK), which considered it dangerous to allow States to act unilaterally in court against one another.Eventually¹⁷, the Council and Assembly of the League of Nations decided that the question of State criminal responsibility was not ready for definition and submitted it to the attention of institutions specialised in international law in view of a Conference on the topic¹⁸.

Later proposals suggested the institution of an international criminal court with competence over both individual and State responsibility, as well as the responsibility of other legal persons¹⁹. In 1923, the Draft Treaty on Mutual Assistance prepared by the Commission on Armaments of the League of Nations qualified war as a ‘State crime’ and envisaged collective countermeasures²⁰. The Treaty, however, never entered into force. In 1924, the Fifth Assembly of the League of Nations adopted the Geneva Protocol for the Pacific Settlement of International Dispute...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication Page
• Foreword
• Table of Contents
• Cases
• Documents
• Abbreviations
• Introduction
• 1 From monism to dualism
• 2 Breach of a primary norm
• 3 Secondary norms: dispute settlement, sanctions and enforcement
• Conclusion
• Bibliography
• Index