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Prosecuting International Crimes: A Multidisciplinary Approach
 Queen Mary Studies in
International Law

Edited by

Malgosia Fitzmaurice
Phoebe Okowa

VOLUME 24

The titles published in this series are listed at brill.com/qmil

Prosecuting International Crimes:
A Multidisciplinary Approach

Edited by

Bartłomiej Krzan

LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data

Names: Krzan, Bartlomiej, editor.

Title: Prosecuting international crimes : a multidisciplinary approach /
edited by Bartlomiej Krzan.
Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Queen Mary
studies in international law ; volume 24 | Includes index.
Identifiers: LCCN 2016018996 (print) | LCCN 2016019120 (ebook) | ISBN
9789004317406 (hardback : alk. paper) | ISBN 9789004323667 (E-book)
Subjects: LCSH: International crimes--Law and legislation. | International
criminal law. | International criminal courts. | Prosecution
(International law)
Classification: LCC KZ7139 .P76 2016 (print) | LCC KZ7139 (ebook) | DDC
345/.05042--dc23
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Contents

List of Contributors vii

Introduction ix

part 1
Individual Criminal Responsibility under International Law

1 Individual Responsibility and Collective State Responsibility for

International Crimes: Separate or Complementary Concepts under
International Law? 3
Joachim Wolf

2 Customary International Law as a Basis of an Individual Criminal

Responsibility 53
Władysław Czapliński

3 Immunities before International Criminal Courts 70

Robert Uerpmann-Wittzack

4 The Attribution of International Criminal Responsibility for Serious

Violations of Human Rights and International Humanitarian Law to
Senior Leaders 81
Krzysztof Masło

PART 2
Substantive Issues

5 Crimes against Civilians during Armed Conflicts 99

Patrycja Grzebyk

6 Remedying Torturous Effects of the Use of Chemical Weapons under

International Law
Regina Valutytė and Neringa Mickevičiūtė 115
vi Contents

part 3
Institutional and Procedural Issues

7 The Judicial Independence of Judges within International Criminal

Courts 135
Witold Jakimko

8 Human Rights and International Criminal Law 153

Bartłomiej Krzan

9 The Prosecutor of the International Criminal Court – Inquistorial or

Adversarial? 176
Karolina Kremens

10 Admissibility of Illegally Obtained Evidence in Proceedings before

International Criminal Courts 201
Wojciech Jasiński

part 4
Relevance of Domestic Approaches

11 Implementing the Nuremberg Principles in National Trials with Nazi

Criminals: Hesitation versus Enthusiasm towards Meeting the
Standards of Complementarity in the Modern International Criminal
Law 227
David Kohout

12 Sufficient Domestic Proceedings – The Standard of National Criminal

Proceedings before the icc in Context of Art. 17 of the Rome
Statute 255
Karolina Wierczyńska

13 The South African Truth and Reconciliation Commission in the Context

of Xenophobia, Cycles of Violence, and Epigenetic Trauma 274
Loammi Wolf

14 Prosecuting International Crimes in Lithuania: When Wounds Shape

the Law 299
Justinas Žilinskas

Index 311
List of Contributors

Władysław Czapliński
is Professor of International Law and Director of the Institute of Legal Studies
at the Polish Academy of Sciences, Warsaw.

Patrycja Grzebyk
is Assistant Professor at the Institute of International Relations of the University
of Warsaw.

Witold Jakimko
is International Judge at the Special Chamber of the Supreme Court of Kosovo
on Privatization Related Matters, Member of the European Union Rule of Law
Mission EULEX-Kosovo.

Wojciech Jasiński
is Assistant Professor in the Department of Criminal Procedure, Faculty of
Law, Administration and Economics, University of Wrocław.

David Kohout
is scientific researcher at the Faculty of Law Charles University in Prague.

Karolina Kremens
is Assistant Professor at the Department of Criminal Procedure at the Faculty
of Law, Administration and Economics at the University of Wrocław; formerly
(2009–2012) Assistant Prosecutor at the Regional Prosecutor’s Office in
Wrocław.

Bartłomiej Krzan
is Associate Professor at the Department of International and European Law,
University of Wrocław.

Krzysztof Masło
is Public Prosecutor of the District Prosecution Office delegated to the Regional
Prosecution Office in Warsaw-Prague, specializing in economic organized
crimes; also a research assistant at the Cardinal Stefan Wyszyński University.

Neringa Mickevičiūtė
is research assistant and a doctoral candidate at the Mykolas Romeris
University, Faculty of Law, Institute of International and European Union Law.
viii List of Contributors

Robert Uerpmann-Wittzack
is Professor of Public and International Law at the University of Regensburg
and a co-editor of the German international law journal Archiv des Völkerrechts.

Regina Valutytė
is Professor at the Department of International and eu Law at Mykolas Romeris
University.

Karolina Wierczyńska
is Assistant Professor in the Institute of Law Studies at the Polish Academy of
Sciences and managing editor of Polish Yearbook of International Law.

Joachim Wolf
is Professor emeritus of the Law Faculty, formerly Director of the Institute for
International Law of Peace and Armed Conflict, Ruhr University Bochum.

Loammi Wolf
runs the initiative Democracy for Peace and is a researcher at the Sanlam
Centre for Public Management and Governance University of Johannesburg.

Justinas Žilinskas
is Professor at International Law and eu Law Institute, Mykolas Romeris
University, Vilnius; Member of International Humanitarian Fact-Finding
Commission.
Introduction
Bartłomiej Krzan

The present book deals with the prosecution of international crimes. There are
currently a variety of approaches to the (proper) reaction towards such crimes.
This diversity may also be seen in the analyses contained here as they reflect
the different backgrounds, mainly legal, of the authors, and combine several
disciplines, making this a multidisciplinary study.
The main but certainly not exclusive point of reference is that of interna-
tional law, where responsibility was traditionally limited to the issue of state
responsibility. The idea of holding individuals responsible under international
law has had a long and difficult history. Despite the early attempts, it was only
in the aftermath of the Second World War that the revolutionary decision
to establish International Military Tribunals was made, which subsequently
paved the way to the development of international criminal responsibility. The
first part of the book is devoted to general issues of such development. In the
first substantive chapter of the book, Joachim Wolf provides an in-depth ex-
amination of the relation between the responsibility of states and individuals
under international law. The following contribution, by Władysław Czapliński,
analyses the customary basis of prosecuting individuals under international
law. The subsequent analyses offer examinations of specific issues: Robert
Uerpmann-Wittzack addresses the question of immunities before the inter-
national criminal courts, whereas Krzysztof Masło scrutinizes the attribution
of responsibility to senior political leaders under international criminal law.
When discussing the subject of our study, it is necessary to first define the
concept of an international crime. While being aware of manifold respective
definitions, it is convenient to start our consideration by referring to the fa-
mous and often-quoted jurisprudence of the Nuremberg Tribunal, where the
judges held 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. Individuals have inter-
national duties which transcend the national obligations of obedience
imposed by the individual state.1

1 International Military Tribunal (Nuremberg), Judgment and Sentences, October 1, 1946, 41

American Journal of International Law (1947), p. 221.
x Introduction

The passage referred to above has proven to enjoy a life of its own. It did not
define precisely what such crimes are; nor would it provide an exhaustive cata-
logue thereof. In the scholarly literature there are many lists of international
crimes.2 Different authorities provide different requirements. Be that as it may,
in terms of defining the crimes one would however be tempted to draw some
common features. Here we would define international crime as being based in
international law and constituting an offence to universal values, such as the
peace, security and well-being of the world.3 What makes this different from
traditionally understood crime is their scale, which stems from the involve-
ment of a state. In addition, there must exist universal interest in repressing
such crimes. The latter feature is adequately reflected in the Preamble to the
Rome Statute, where it refers to “the most serious crimes of concern to the
international community as a whole”.4
Alternatively, one may adopt a more pragmatic approach and consider in-
ternational crimes as crimes that fall within the jurisdiction of an international
criminal tribunal or a court. Such a stance proves to be concise and formally
acceptable, but nevertheless neglects some important features. First of all,
there are various international criminal jurisdictions offering different visions
of their subject-matter scopes. The description also does not take into account
the possibility of domestic prosecution. Finally, it is crucial to recognize the
peace versus justice dilemma. Even a cursory comparison of the relevant pro-
visions of the Rome Statute of the International Criminal Court with the re-
spective provisions contained in the statutes of its predecessors reveals evi-
dent progress in terms of developing the substantive rules.
Despite the elaborate definitions of the crimes included in the Rome
Statute, some controversies may nevertheless arise. Thus, the following part of
the book considers substantive issues. Patrycja Grzebyk investigates the prac-
tice of international criminal tribunals focusing on crimes against humanity
and large-scale war crimes against civilians while leaving other war crimes, in-
cluding minor ones, aside. Such a tendency reflects a far-from-easy symbiosis
of international criminal and humanitarian law. Against the latter background,
Regina Valutytė and Neringa Mickevičiūtė analyse the possibility of qualifying

2 See e.g. M.Ch. Bassiouni, “International Crimes: The Ratione Materiae of International Crimi-
nal Law”, in M.Ch. Bassiouni (ed.), International Criminal Law, Vol. i: Sources, Subjects, and
Contents (3rd ed. 2008), pp. 129 ff.
3 Cf. H.-J. Jescheck, “International Crimes”, in R. Bernhardt (ed.), Encyclopedia of Public Inter-
national Law, Vol. 2 (1995), p. 1120.
4 Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 United Nations
Treaty Series, pp. 3 ff.
Introduction xi

the use of chemical weapons as an act of torture, which again highlights the
complex relation between the two branches of international law.
From a lawyer’s perspective, the most “natural” method is to address inter-
national crimes judicially, by a court or tribunal, be it either international or
domestic. Most of the contributions in the present volume refer to internation-
al criminal justice, with the permanent International Criminal Court placed at
the very core of the analysis.
A look at institutional and procedural issues, which constitutes the third
part of the present book, starts with a study by Witold Jakimko on judicial
independence. In the subsequent chapter, Bartłomiej Krzan examines the re-
lation between human rights and international criminal law. Then, Karolina
Kremens scrutinizes the influence of both common and civil law systems on
the position of the Prosecutor of the International Criminal Court. The mixture
of the two different systems (and the consequential combination of adversar-
ial and inquisitorial elements) results in the Prosecutor of the icc sometimes
having to play an unexpected role. Focusing on a broader perspective, includ-
ing ad hoc the international criminal tribunals, Wojciech Jasiński considers the
admissibility of illegally obtained evidence according to the procedural regu-
lations before the respective international bodies. Despite the different fields
of examination, one common conclusion to be drawn therefrom is that the
approach taken at an international level differs from the one a criminal lawyer
is used to under domestic procedural rules. Therefore, it is quite challenging to
translate the standards commonly accepted in domestic criminal procedure
into the realm of international criminal justice.
What is now seen as a regular application of international criminal law
used to be considered an aberration and surrender of domestic criminal ju-
risdiction. Still, even nowadays, crimes, including international crimes, are to
be first and foremost addressed by domestic criminal justice systems. The in-
volvement of the international community in the prosecution of international
crimes and the subsequent development of the international criminal justice
resulted from the lack of an adequate domestic response towards international
crimes. Therefore, it is of crucial importance for the present study to refer to
the relevance of domestic approaches towards the prosecution of internation-
al crimes, which forms the final part of the book. It starts with a careful con-
sideration of the principle of complementarity. The opening contribution by a
legal historian, David Kohout, considers the roots and the historical rationale
for the concept of international criminal justice as a complementary mech-
anism to the domestic prosecution of international crimes. In the following
contribution, Karolina Wierczyńska examines the standard of national crimi-
nal proceedings with regard to potential proceedings before the International
xii Introduction

Criminal Court. Actions undertaken by a given state naturally affect the issue
of admissibility before the icc. In general, one may notice a clear shift from
placing international criminal justice at the top, while placing the domestic
judiciary in a subordinated position. This is not only reflected by the inclusion
of the principle of complementarity but also by numerous hybrid, internation-
alized bodies, such as the Special Court for Sierra Leone, for example.5
In addition, there are several alternatives to a judicial response to interna-
tional crimes. A special position among non-judicial solutions is occupied by
fact-finding and acknowledgment. The legal character and operation of Truth
and Reconciliation Commissions (trcs) have been subjected to careful scru-
tiny.6 Forming an extra-judicial process to document a pattern of past human
rights abuses, they are able to complement or replace criminal proceedings, de-
pending on the context. They are oriented towards the victims.7 There are dif-
ferent examples of such Commissions, with the one established for South Africa
being probably the most widely known. It is against this particular background
that Loammi Wolf analyses the broader perspective of the apartheid trauma.
Using his experience as a member of an International Fact Finding Com-
mission, Justinas Žilinskas offers a study on the Lithuanian response to the
collective Communist atrocities. The response to the Communist past8 is yet
another plane where crimes of international character are prosecuted. This
is another reflection of the observation made by Judges Higgins, Kooijmans
and Buergenthal that “The international consensus that the perpetrators of
international crimes should not go unpunished is being advanced by a flexible
strategy, in which newly established international criminal tribunals, treaty
obligations and national courts have all their part to play”.9
The present volume combines different views, backgrounds and underly-
ing assumptions. Naturally the contributions differ in many ways, including
formally. But gathered together they, it is hoped, shed some additional, useful
light that might be helpful for identifying new dimensions of the prosecution
of international crimes.

5 See in general S. Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdic-
tional Issues (2012).
6 See, e.g. J. Baker, “Truth Commissions”, 51 University of Toronto Law Journal (2001), p. 309, cf.
P.B. Hayner, “Truth commissions: a schematic overview”, 88 International Review of the Red
Cross (2006), p. 295 and A. O’shea, “Truth and Reconciliations Commissions”, mpepil.
7 P. Hazan, “Measuring the impact of punishment and forgiveness: a framework for evaluating
transitional justice”, 88 International Review of the Red Cross (2006), p. 24.
8 Cf. L. Stan, N. Nedelsky, Post-Communist Transitional Justice: Lessons from Twenty-Five Years of
Experience (2015).
9 icj Rep. 2002, § 51.
 part 1
Individual Criminal Responsibility under
International Law

∵
 chapter 1

Individual Responsibility and Collective State

Responsibility for International Crimes: Separate
or Complementary Concepts under International
Law?

Joachim Wolf

International law currently prescribes a dual system of responsibility for inter-

national crimes, viz individual criminal responsibility and collective state re-
sponsibility. The provisions regulating war crimes in the Geneva Conventions
and the Additional Protocols offer an example of such dual responsibility. Due
to the complexity of international crimes, individual criminal and collective
state responsibility could entail factual as well as legal elements with refer-
ence to both concepts. It has therefore become unavoidable to clarify how the
different categories of responsibility affect each other. The body of literature
on individual responsibility and state responsibility for international crimes
is growing, but still lacks a systematic coherence.1 Most contributions either
focus on the effect of individual responsibility on the law of state responsibility
or vice versa.2
What makes international crimes such a multifaceted and difficult subject-
matter? The main reason is the lack of competence under public internation-
al law to punish people under the jurisdiction of national states but simul-
taneously being concerned with the political consequences of international
crimes.3 The following paper focuses on conceptual characteristics of individ-
ual responsibility and collective state responsibility with a view to answer the

1 Cf M. Spinedi “State Responsibility v Individual Responsibility for International Crimes: Ter-

tium non datur” 13 European Journal of International Law (2002), p. 895; S. Rosenne “State
Responsibility and International Crimes: Further Reflections on Art 19 of the Draft Articles
on State Responsibility”, 30 nyu Journal of International Law and Politics (1997–8), p. 145.
2 See A. Nollkaemper, “Concurrence between individual responsibility and State responsibility
in international law”, 52 International and Comparative Law Quarterly (2003), p. 615.
3 Such consequences are discussed inter alia by R. Cryer et al. An Introduction to International
Criminal Law and Procedure (2010) 4; B. Bonafé The Relationship between State and Individual
Responsibility for International Crimes (2009), p. 52; A. Zimmermann, M. Teichmann, “State
responsibility for international crimes”, in A. Nollkaemper and H van der Wilt (eds) System
Criminality in International Law (2009) 298.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323667_002

4 Wolf

question whether these forms of responsibility are mutually exclusive, simply

separated from each other or whether there could be complementary solu-
tions in determining who should be held responsible for international crimes.4

1 Separate and Complementary Concepts of International Crimes

and a Possible Third Category

The meaning of ‘separate’ or ‘complementary’ concepts of international crimes

discussed in legal literature is not quite clear.5 Some academics who refer to
a complementary relation simply mean that individual responsibility and
collective state responsibility for an international crime committed by state
officials or by non-state actors under a state’s control, are not mutually
exclusive.6 This does not suffice to establish a complementary relationship
because that would require a result that goes beyond mere individual respon-
sibility and state responsibility.7 Thus, the mere ‘duality of responsibility’ men-
tioned by the International Court of Justice in the genocide case involving
Bosnia v Serbia and Montenegro8 is no verification for a complementary rela-
tionship. Complementary effects of individual and collective state responsibil-
ity in the proper sense of the word would arise, for example, in cases where
such effects are not only cumulative but also mutually reinforcing.

4 The terminology used in legal literature is varied and confusing. Nollkaemper (n. 2), p. 615
speaks of ‘parallel attribution of acts of genocide’ in the former Yugoslavia to Yugoslavia and
to Slobodan Milosevic and qualifies the result of the obligation of states to prosecute indi-
viduals suspected of international crimes as “concurrence between individual responsibility
and state responsibility”.
5 Depending on the structure of the respective crime and the circumstances of its commit-
ment, the meaning of these concepts can be different: see A. Bianchi, “State Responsibility
and Criminal Liability of Individuals” in A Cassese (ed.) The Oxford Companian to Interna-
tional Criminal Justice (2009), p. 16.
6 Compare A. Gattini, “A historical perspective: from collective to individual responsibility and
back”, in A. Nollkaemper and H. van der Wilt (eds.) System Criminality in International Law
(2009), p. 101; G. Simpson “Men and abstract entities: individual responsibility and collec-
tive guilt in international criminal law” in A. Nollkaemper and H. van der Wilt (eds.) System
Criminality in International Law (2009), p. 69.
7 Unfortunately, the meaning of ‘concurrence’ is often not explained. See A. Clapham, Issues
of complexity, complicity and complementarity: from Nuremberg to the Hague (2003) 6; see
also P.M. Dupuy, “International Criminal Responsibility of the Individual and International
Responsibility of the State” in A. Cassese, P. Gaeta and J.R.D. Jones (eds.) The Rome Statute
of the International Criminal Court: A Commentary (2002), p. 1086.
8 Bosnia v Serbia, icj Judgment (26 February 2007), p. 47.
Individual and State Responsibility 5

1.1 Separate Concepts

When academics, by contrast, refer to separate concepts of responsibilities, it
means that criminal law responsibility cannot be transferred to the régime of
collective state responsibility and vice versa.9 The separate concepts of respon-
sibility induce different legal effects: punishment of individuals, on the one
hand, and reparation by states, on the other. In other words, it is not the conduct
but the legal effects that make the difference. The conduct of a state official can
qualify as an international crime and at the same time form the basis for attri-
bution in terms of article 8 ilc Draft. According to this interpretation, although
individuals and a state can be held responsible concurrently with respect to the
same international crime, individual criminal responsibility and collective state
responsibility in general remain to be separate concepts of responsibility in
terms of their elements and their legal consequences.10 A specific common con-
tent of responsibility as well as common legal consequences on a level beyond
the separate concepts, which would be composed of elements derived from both
individual criminal and state responsibility, seem still to be possible. This opens
a new field of options to develop a general concept of international crimes.

1.2 Complementary Effects

Complementary effects in the proper sense of the word are either composed of
elements derived from the two concepts of responsibility or do have a hybrid
character reflecting at the same time legal meanings of individual criminal
responsibility and of collective state responsibility. Different beginnings and
models how to determine and explain such complementary effects are under
discussion.11 This discussion is closely related to the notion of a so-called ‘third
category’12 of international crimes and could be appropriate to analyse the dif-
ferent positions and proposals in this regard.

9 Before World War ii this was explained by the dogmatic position that individuals were
completely excluded from the interstate level of public international law. See A. Gattini
(n. 6) and E. Giorgou, State Responsibility and Individual Criminal Responsibility (Masters
thesis, Geneva Academy of International Humanitarian Law and Human Rights, 2010/2011),
p. 12.
10 ‘Parallel’ or ‘dual’ responsibility describes this kind of relationship correctly. See C. Domi-
nicé, “La question de la double responsabilité de l’Etat et de son agent”, in. E. Yakpo and
T. Boumedra (eds.) Liber Amicorum Judge Mohammed Bedjaoui (1999), p. 145; Giorgou
(n. 9), p. 16.
11 Bianchi (n. 5), p. 17.
12 At this stage, the term of a ‘third category’ is not a familiar concept in international law lit-
erature. It is very descriptive of what a growing number of authors advocate, viz a catego-
ry of legal effects of responsibility for collective wrongdoing that goes beyond individual
6 Wolf

1.3 Failed Attempts and New Tentative Ideas for a ‘Third Category’
of International Crimes
Literature on the topic tends to focus on a new hybrid category of wrongdo-
ing by states.13 The aim with such a ‘third category’ is to elaborate concepts of
wrongfulness in international law which are neither criminal in the sense of in-
dividual criminal responsibility nor collectively wrongful in the sense of objec-
tive responsibility of states for violations of their international law obligations.
Yet, it is undisputed that, in addition to the criminal law nature, illegalities
summarised as international crimes are also relevant under public interna-
tional law due to their grave and far-reaching disturbances of international
relations.14 What is still missing to such grave and complex disturbances is an
independent category of ‘state crimes’, which is not criminal in character but
involves aggravating wrongdoing of the state that could qualify as a category of
collective wrongfulness in its own right.15 Such a category could also be called
‘international crimes’ due to its serious consequences and to its concern for the
international community as a whole. For purposes of the following discussion,
it is sufficient to be aware that such considerations exist although their legal
content is not always couched into clear terms.

(a) Failed Concept of ‘international crimes’ in the Former Article 19

ilc Draft Articles
The former article 19 (1) of the 1980 ilc Draft Articles on State Responsibility
confirmed the ‘unity of international responsibility’ as a legal principle. It pro-
vides: ‘An act of a State which constitutes a breach of an international obliga-
tion is an internationally wrongful act, regardless of the subject-matter of the
obligation breached’. The principle of unity reflects the traditional view that

criminal and state responsibility that is not criminal but only international in character.
See M.A. Drumbl, “Collective Responsibility and Post-conflict Justice” in T. Isaacs and R.
Vernon (eds.) Accountability for Collective Wrongdoing (2011), p. 23; E. Kelly ‘Reparative
Justice’ in the same collection of essays in Isaacs and Vernon, p. 193.
13 A. Marston Danner and J.S. Martinez, “Guilty Associations, Joint Criminal Enterprise,
Command Responsibility, and the Development of International Criminal Law”, 93 Cali-
fornia Law Review (2005), p. 75; Drumbl (n. 12), p. 23.
14 This position is also taken by the icj in the cases of Croatia v Serbia regarding the ‘Ap-
plication of the Convention on the Prevention and Punishment of the Crime of Geno-
cide’ icj Reports (2010) 3 at 4 and Bosnia v Serbia icj Judgment (26 February 2007) paras
291–97, 471 and paras 395, 412.
15 See similar positions by Giorgou (n. 9), p. 5 and Nollkaemper (n.2), p. 625.
Individual and State Responsibility 7

international responsibility is neither civil or criminal nor public or private,

but simply international.16
In contrast to this approach, the former article 19 (2) introduced a new cat-
egory of “international crimes” and stated the following:

An internationally wrongful act which results from the breach by a

State of an international obligation so essential for the protection of
fundamental interests of the international community that its breach
is recognized as a crime by that community as a whole, constitutes an
international crime.

This initiative was not endorsed by a majority of ilc-members. It was argued

that corporate entities like states lack the psychological capacity in order to be
found guilty for their corporate acts and omissions and therefore cannot be
criminals.

(b) Tentative Ideas for a New ‘third category’

Not all ideas and models that have been broached in the list discussed subse-
quently are specifically dedicated to develop a ‘third category’ of international
crimes. What makes them relevant, however, are two elements that they all
have in common, viz a non-criminal character and the idea to break with the
principle of ‘unity of state responsibility’ previously foreseen in the former ar-
ticle 19(1) of the ilc Draft Articles.17 The latter element in particular opens the
possibility for the development of a ‘third category’.

(i) ‘Grave breaches’ and ‘serious violations’ of State Obligations

Grave-breaches and serious-violations approaches were first established in
international humanitarian law with the aim to differentiate war crimes in
international armed conflicts and other punishable violations committed in
non-international armed conflicts from other wrongful conduct during those
conflicts not having a criminal character. Both approaches developed in the
context of international criminal law and contributed to shape specific issues
of individual criminal responsibility for war crimes at the level of primary

16 Rainbow Warrior Case (New Zealand v France) 1990 Arbitration Tribunal 20 riaa 217; A.
Pellet, “Can a State Commit a Crime? Definitely Yes!”, 10 European Journal of International
Law (1999), p. 433; A. Nollkaemper and D. Jacobs, “Shared Responsibility in International
Law: A Concept Paper”, acil Research Paper No 2011–07, SHARES-Series August 2011, p. 121.
17 The principle of ‘unity of state responsibility’ is now laid down in art 12 of the ilc Draft
Articles.
8 Wolf

rules.18 Articles 40 and 41 of the ilc Draft Articles combined the formulas of
‘grave breaches’ and ‘serious violations’ in a new formula of ‘serious breaches’
at the level of secondary rules of state responsibility and connected its new
legal meaning with the content of collective state responsibility in terms of
Part Two of the ilc Draft Articles.19 ‘Serious breaches’ are defined as a “gross
or systematic failure by the responsible state to fulfil the obligation” arising
under a peremptory norm of general international law (article 40 (2) ilc Draft
Articles). By focussing on constant violations of state obligations the formula
‘gross or systematic failure’ could serve as an important step to include the still
poorly regulated cases of mass violations and atrocities during armed conflicts
or in times of internal disturbances in a coherent concept for international
crimes at the level of secondary rules.

(ii) Merging ‘aggravated’ State Responsibility and Individual Criminal

Responsibility into a Unitary Legal Framework of International
Crimes
As a first step to overcome the principle of unity in respect of state responsi-
bility, more far-reaching and stricter legal consequences for grave and serious
violations of a state’s international law obligations have been recommended.20
Provisions invoking individual criminal responsibility for international crimes
did not receive any consideration, although there are also aggravating forms
of individual criminal responsibility compared with less serious violations of
humanitarian law that invokes only disciplinary consequences.
The idea of a unitary framework of international crimes encompassing both
individual criminal and collective state responsibility was based on various
primary norms addressing state and individual responsibility and thereby –
allegedly – created a unitary legal concept of responsibility. This line of argu-
mentation was criticized for good reason.

18 See the description and comparison between the ‘grave breaches’ approaches of the Ge-
neva Conventions of 1949 and of art 8(2)(a) of the icc Statute made by K. Dörmann, “War
Crimes in the Elements of Crimes”, in H. Fischer, C. Kreß and S.R. Lüder (eds.) Interna-
tional and National Prosecution of Crimes under International Law (2001), p. 100.
19 Legal elements for the ‘grave breaches’ approach based on secondary rules were laid
down by the icj in Barcelona Traction, Light and Power Company, Limited, Second Phase,
icj Reports (1970) p. 32 and East Timor (Portugal v Australia) icj Reports (1995), p. 102.
20 To summarize these endeavours, the term ‘aggravated responsibility’ has become com-
mon among scholars. See eg Nollkaemper (n. 2), p. 627, Giorgou (n. 9), p. 11. This is not to
say that cases of aggravated responsibility are enough consistent to develop into the direc-
tion of a legal category of its own right. Crawford’s commentaries on article 40 ilc Draft
Articles reflect the opposite position: see J. Crawford The International Law Commission’s
Articles on State Responsibility – Introduction, Text and Commentaries (2002), pp. 245–248.
Individual and State Responsibility 9

What has not been adequately taken into account is that the concept of ‘ag-
gravated state responsibility’ was meanwhile established at the level of second-
ary rules on state responsibility by article 40 of the ilc Draft Articles. The latter
provision regulates ‘serious breaches’ of a state’s obligations under peremp-
tory norms of international law and provides specific consequences for such
breaches in article 41. It seems reasonable to assume that articles 40 and 41 ilc
Draft Articles could contribute to a unitary framework of international crimes.

(iii) State Complicity in International Crimes by Individuals and Non-

state Actors
Whereas article 16 of the ilc Draft Articles makes the aid or assistance of a
state in the committing of an internationally wrongful act of another state an
internationally wrongful act in its own right, state complicity in international
crimes committed by individuals and non-state perpetrators is not regulated
by the ilc Draft Articles.21
Based on a broad analogy to article 16 of the ilc Draft Articles, state com-
plicity in international crimes by individuals is confined to physical state aid
and assistance in committing the respective crime.22 In contrast to domestic
criminal law, state complicity in this sense can be the dominating part of the
crime compared with the principal act.
This is due to the overwhelming capacity of states to plan, organize and
perform international crimes. The importance of state complicity where indi-
viduals and groups of non-state actors commit international crimes is not yet
reflected in the relevant rules on individual criminal and state responsibility.
State complicity could serve as an important regulatory factor within a unitary
framework of international crimes.

(iv) International Crimes Forming Part of a State Policy

Provisions regulating international crimes on the basis of primary norms
explicitly require a performance “pursuant to or in furtherance of a State or

21 Instead, state complicity in international crimes by individuals are regulated at the level
of primary norms only: see art 3(e) of the Genocide Convention and art 4 of the Conven-
tion against Torture.
22 Legal literature on complicity relating to the concept of state responsibility is usually con-
fined to the secondary rule of art 16 of the ilc Draft Articles – see e.g. H.P. Aust Complicity
and the Law of State Responsibility (2011). The level of secondary rules on state complicity
as regulated by the ilc in art 16 of the Draft Articles is still highly fragmentary, probably
as a result of the decision of the ilc to deal with ‘complicity’ as a secondary rule only in
terms of an independent international wrongful act of a state in its own right in contrast
to the principal violation of an international law obligation by another state.
10 Wolf

organizational policy to commit” such crimes.23 The serious-breach approach

in terms of article 40 of the ilc Draft Articles goes in a similar direction insofar
as it requires “any gross or systematic failure by the responsible state to fulfil
the obligations”. Translated into political state practice such a failure regularly
corresponds to a ‘state practice’ expressing a specific political agenda.24

(v) International Crimes in the Form of Serious Human Rights Violations

A common feature of universal and regional human rights covenants endowed
with its own monitory and enforcement procedure are combined obligations
of the High Contracting Parties to respect and to ensure to all individuals within
their jurisdiction the rights and freedoms guaranteed in the respective cov-
enants and conventions.25 The methodology to combine conventional guar-
antees of individual human rights and freedoms with general state duties in
the fields of internal security and judicial review includes state protection of
these rights and guarantees against interferences and violations by non-state
actors.26 This implies that state parties to such human rights conventions and
covenants have to refer to all legislative, administrative and political instru-
ments available to them.
To the extent that serious violations of human rights that qualify as interna-
tional crimes are based on combined obligations to respect and to ensure, the
‘two elements’ approach of the ilc Draft Articles is not a suitable basis for re-
sponsibility under international law anymore. Such human rights obligations
are by far too complex to be reduced to single actions or omissions of natural
persons.27

23 See art 7 of the Rome Statute. Art 8 of the Rome Statute speaks in similar terms of war
crimes “committed as part of a plan or policy or as part of a large-scale commission of
such crimes”.
24 On the requirement of ‘state policy’ as a constitutive element of international crimes, cf
G. Mettraux, “The Definition of Crimes against Humanity and the Question of a ‘Policy’
Element”, in L.N. Sadat (ed.), Forging a Convention for Crimes against Humanity (2011), p.
142; see also F. Lattanzi, “Crimes against Humanity in the Jurisprudence of the Interna-
tional Criminal Tribunals for the former Yugoslavia and Rwanda”, in H. Fischer, C. Kreß,
and S.R. Lüder (eds.) International and National Prosecution of Crimes under International
Law (2001), p. 473.
25 See art 1 of the European Convention of Human Rights and Freedoms (echr) and art 2 of
the International Covenant on Civil and Political Rights (iccr).
26 J. Wolf, Die Haftung der Staaten für Privatpersonen nach Völkerrecht (1997), p. 682 refers to
the ‘three elements’ approach to determine international state liability for human rights
violations by non-state actors.
27 Some authors accept this but contradict themselves by denying any autonomous mean-
ing of state responsibility under human rights law, see Giorgou (n. 9), p. 9.
Individual and State Responsibility 11

Grave and serious state violations of combined obligations to respect and to

ensure human rights could provide a further justification of a ‘third category’
of international crimes to establish a unitary framework.

2 International Crimes – No Definition: Elements Approach

It is undisputed that, in addition to the criminal law nature, illegalities summa-

rized as international crimes are also relevant under public international law
due to their grave and far-reaching disturbances of international relations.28
This aspect found its way into the concept of international crimes in terms
of the Rome Statute. Article 5(1) reads: “The jurisdiction of the Court shall be
limited to the most serious crimes of concern to the international community
as a whole”.
Such international crimes include the crime of genocide, crimes against hu-
manity, war crimes and the crime of planning and waging wars of aggression.
The categories of war crimes and crimes against humanity are in itself com-
plex, comprising further international crimes such as ethnic cleansing – both
in times of war or peace, and serious human rights violations such as torture,
apartheid, and enforced disappearance of political opponents.29
Despite the long list of subcategories of crimes against humanity in article
7 of the Rome Statute and of war crimes in article 8 of this Statute, a compre-
hensive category of ‘international crimes’ where the elements of it are defined
and corresponding legal consequences are spelt out does not yet exist.30 The
absence of such a definition is not a regulatory deficit but rather a characteris-
tic of the regulatory approach governing the framework of the Rome Statute.

28 Obviously, this is also the position taken by the icj in the cases Croatia v Serbia regarding
the ‘Application of the Convention on the Prevention and Punishment of the Crime of
Genocide’ icj Reports (2010), p. 4; also Bosnia v Serbia icj Judgment (26 February 2007)
paras 291–97, 471 and paras 395, 412.
29 On the latter category of crimes, see the judgment of the Inter-American Court for Human
Rights in the case of Gelman v Uruguay iagmr, Judgment of 24 February 2011, Series C
No 221. See an analysis of the judgment by K. Theurer, „Durch Referenden bestätigte Am-
nestiegesetze in Fällen gewaltsamen Verschwindenlassens unvereinbar mit der Ameri-
kanischen Menschenrechtskonvention“ Europäische Grundrechte Zeitschrift (2012) 682.
30 The former art 19 of the Draft Articles on State Responsibility (yilc 1980 II/2, 30) deal-
ing with ‘state crimes’ was deleted in the final Draft. Art 58 of the ilc Draft leaves the
individual responsibility under international law of persons acting on behalf of a state
unchanged. Art 25(4) of the Statute on the International Criminal Court, Rome, 17 July
1998, contains the same regulation in terms of International Criminal Law regarding the
law of state responsibility.
12 Wolf

Article 9 of the Rome Statute refers to elements of crimes which “shall assist
the Court in the interpretation and application of articles 6, 7 and 8”.31 It pro-
ceeds: “They shall be adopted by a two-thirds majority of the members of the
Assembly of States Parties” and can be amended by the same body. This ‘ele-
ment approach’ is based on three constitutive elements for an international
crime which were developed and determined in international criminal law
jurisprudence during the last century:32

First, an international crime requires a respective criminal norm which

emanates directly from a treaty concluded under international law or
from customary international law. This international criminal norm has
to enjoy direct binding force on individuals without intermediate provi-
sions of municipal law (self-executing treaty provision); second, provi-
sion has to be made for the prosecution of acts penalized by international
law in this manner before an international criminal court or before a mu-
nicipal court. In the last mentioned case, the jurisdiction of the municipal
court has to be based on the principle of universal criminal jurisdiction in
order to express the international character of the respective crime; third,
a treaty establishing liability for an act as a crime against international
law would have to be binding on the great majority of States, for only then
would the international status of the relevant penal provision be assured.

It is beyond dispute, that these elements are indispensable for an international

crime to exist. Article 9 of the Rome Statute has gone a step further by opening
the provisions in article 6 (genocide), 7 (crimes against humanity) and 8 (war
crimes) for extension by adding further elements to the ones already laid down
in these provisions. Such additional crime elements refer to a specific inter-
national crime, either genocide, or a crime against humanity or a war crime.
They are not intended to form a general and comprehensive definition of all
international crimes. It is a regulatory approach in its own right. Thus, a new
crime element in terms of article 9 with reference to the crimes listed by article
6, 7 or 8 of the Rome Statute can either extend the criminal law content of the
crime or contribute to the meaning of its ‘concern for the international com-
munity as a whole’. The elements approach of article 9 deals with international
crimes on the level of international law, not in their context of domestic crimi-
nal law. The ‘concern for the international community as a whole’ goes beyond

31 Regulating the crimes of genocide, crimes against humanity and war crimes.
32 See H.H. Jescheck “International Crimes”, in R. Bernhardt (ed.) Encyclopedia of Public In-
ternational Law (1991), p. 1119.
Individual and State Responsibility 13

criminal law and makes these crimes a relevant issue for international peace
and security. As a consequence, the jurisdiction of the International Crimi-
nal Court (icc) under articles 5 and 25 of the Rome Statute can coincide with
the ‘primary responsibility’ of the un Security Council ‘for the maintenance of
international peace and security’ in terms of article 24 of the United Nations
Charter.33 The content of these elements is not confined to criminal law in the
proper sense.

3 International Crimes as a Category of International Law – Looking

for System-Forming Criteria

The elements approach can contribute to develop international crimes as a

category of wrongful acts under international law in its own right. However,
without a general definition of international crimes and with only small steps
that have been taken to add new elements, the approach does not suffice to
extract a coherent legal concept and to clarify its relation to other concepts
of wrongfulness under international law from a systematic point of view. To
resolve these conceptual difficulties, a set of system-forming criteria might be
useful for a better understanding of the existing regimes of wrongfulness in
international law and of their application.
System-forming criteria can be devised in different ways. To start, existing
legal instruments could be helpful insofar as they shed light on the inquiry
how the different legal regimes are interrelated. In addition, and more impor-
tantly, one could compare the relevant conventions, treaties and draft rules
from a systematic point of view with regard to key criteria such as perpetra-
tors, their legal position as state officials or non-state actors, the legal content
of responsibility, rules of attribution and the legal effects of wrongdoing. They
could form the basis for system-forming criteria in order to determine differ-
ent legal regimes of responsibility for international crimes. Some of the most
important issues are:

○ What are the criminal law and public international law elements that
constitute the respective international crime?34

33 Article 1(1) un Charter.

34 W. Rückert and G. Witschel, “Genocide and Crimes against Humanity in the Elements of
Crimes”, in H. Fischer, C. Kreß and S.R. Lüder (eds.) International and National Prosecu-
tion of Crimes under International Law (2001), p. 60; Dörmann (n. 18), p. 95; G. Mettraux
International Crimes and the ad hoc Tribunals (2005), pp. 55–64.
14 Wolf

○ Who can be termed perpetrators of international crimes?35 Are they in-

dividual non-state actors, non-state groups, persons in leading political or
military positions in their individual capacity, state officials, or even state
organs that legally represent the state? This offers a very broad spectrum of
potential options.36
○ What are the legal consequences of international crimes? Are the conse-
quences of an individual or collective nature? Further, are the legal con-
sequences addressed to individuals, to other states or to the international
community as a whole?37
○ Can collective atrocities that are committed by individuals or groups of non
state-actors under the control or with the help of a state be addressed in
terms of existing legal instruments?38 If not, do the relevant legal instru-
ments have to be extended by new regulations?

In an attempt to answer these questions, the relevant primary rules in various

conventions on international crimes, for example, the Genocide Convention,

35 See Mettraux (n. 34), pp. 272–279. P. Gaeta ‘On What Conditions can a state be held re-
sponsible for genocide?’ 18 European Journal of International Law (2007), p. 61 discusses
the issue in relation to the commitment of the genocide.
36 Whereas most contributions focus on the relation between individual responsibility and
collective state responsibility by way of attribution (e.g. H. Fox, “The International Court
of Justice’s treatment of acts of the state and in particular the attribution of acts of indi-
viduals to states” in N. Ando et al. (eds.) Liber Amicorum Judge Shigeru Oda (2002), p. 147),
there is little emphasis on areas where such an attribution is highly questionable, e.g. war
crimes under the Geneva Conventions.
37 The subject matter relating to legal responses and detailed legal consequences attached to
the commitment of international crimes is underdeveloped. With the exception of viola-
tions of international humanitarian law by committing war crimes, the conventions regu-
lating other international crimes, i.e. the Genocide Convention, the Convention against
Torture, the Convention against Enforced Disappearances and the Anti-Apartheid-­
Convention are silent on the issue of detailed legal consequences when such crimes were
committed and about the question who should be held responsible for the commitment.
Most legal instruments in this field, including the Geneva Conventions and Additional
Protocol i, refer to the alternatives of either domestic criminal law or collective state re-
sponsibility in terms of the ilc Draft Articles without giving an indication which set of
rules should be applicable.
38 Relevant rules which could be helpful in this regard are either contained in conventional
primary norms in the genocide convention, convention against enforced disappearances
or in the convention against torture or they are laid down in very vague terms in second-
ary rules of attribution (e.g. art 8 ilc Draft Articles) without clarifying the regulatory con-
tent to decide a specific case.
Individual and State Responsibility 15

the Rome Statute, the Apartheid Convention, war crimes as defined in the Ge-
neva Conventions and Protocols, and the Convention against Torture will be
analysed. A pragmatic understanding of international crime, which is based
on the provisions and the aims of the above-mentioned legal instruments, is
proposed.
Thereafter, the above mentioned questions will be analysed with refer-
ence to the conceptual framework of secondary rules of state responsibility
as defined by the ilc Draft Articles. A more abstract meaning of international
crimes will be distilled in the process.

3.1 Safeguarding Clauses

Both the law of state responsibility and international criminal law contain gen-
eral safeguarding clauses clarifying that nothing in the articles of the ilc Draft
Articles for state responsibility has any exclusionary effect on the individual
responsibility of any person acting on behalf of a state. Vice versa individual
criminal responsibility is without prejudice to state responsibility. Unfortu-
nately, the safeguarding clauses contribute little to clarify conceptual issues
due to the fact that they contain only self-referential terms without clarifying
their relation to other legal instruments.

(a) Article 58 of the ilc Draft Articles

It appears that article 58 of the ilc Draft Convention on State Responsibility
favours a parallel application of state responsibility and individual criminal
responsibility. The provision reads as follows:

These articles are without prejudice to any question of the individual re-
sponsibility under international law of any person acting on behalf of a
state. (Emphasis added.)

At first glance, it appears that individual responsibility and state responsibility

for international crimes are not mutually exclusive. However, closer scrutiny
of discussions on the legal doctrine behind article 58 reveals a huge amount of
objections and arguments proclaiming exactly the opposite.
In the United Kingdom, the Law Lords in Jones v Saudi Arabia reasoned that
“state officials are in principle immune in respect of acts that can be attributed
to the state”.39 In Prosecutor v Blaskic, the Appeals Chamber of the icty ruled
that “state officials are mere instruments of a state and their official action can

39 Jones v Ministry of Interior Al-Mamlaka Al-Aragiya AS Saudiya (the Kingdom of Saudi

Arabia), 14 June 2006, ukhl 26.
16 Wolf

only be attributed to the state”.40 This stance has been echoed by the Nether-
land’s District Court of Amsterdam in Church of Sientology in the Netherlands
Foundation and Others v Herold. The court held: “The state official is only an
accidental intermediary on which a state depends for the performance of its
acts. Only the state itself incurs responsibility…”41
It therefore appears that the rule laid down by article 58 of the ilc Draft
Convention about individual responsibility for international crimes cannot be
interpreted to be more than a formalistic compromise at this stage. It must be
carefully considered in relation to the respective factual and legal constellation
of a specific case.

(b) Article 25 of the Rome Statute

According to article 25(2) of the Rome Statute,42 “a person who commits a
crime within the jurisdiction of the Court shall be individually responsible and
liable for punishment in accordance with this Statute”. Article 25(4) states that
“no provision in this Statute relating to individual criminal responsibility shall
affect the responsibility of States under international law”.
To assume that the safeguarding clause in article 25 of the Rome Statute is
the mirror image of article 58 of the ilc Draft, would conflate the legal foun-
dations of individual criminal responsibility compared with collective state
responsibility. Individual criminal responsibility in terms of article 25 of the
Rome Statute is primarily based on municipal law and gains a subsidiary inter-
national law status only in cases where states do not prosecute international
crimes that fall in this category in terms of the Rome Statute. It is obvious that
crimes in terms of a state’s criminal law cannot affect the responsibility of
states under public international law. Article 25(4) of the Rome Statute there-
fore does not entail a regulatory effect.

3.2 System-Forming Criteria in Primary Rules on International Crimes

(Regulation by Conventions)
The distinction between primary and secondary rules follows the system laid
down by the ilc Draft Articles on state responsibility, according to which pri-
mary rules are the substantive state obligations, fundamental rights and inter-
national crimes in treaty law and customary law whereas secondary rules are

40 icty Prosecutor v Blaskic, Case No IT-95-14, Judgment on the Request of the Republic of
Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997, Appeals Chamber,
29 October 1997, par 41.
41 65 ilr 380 at 381–382.
42 7 July 1998, 2178 unts p. 90; 37 ilm (1998), p. 1002 (entered into force 1 July 2002).
Individual and State Responsibility 17

the rules regulating violations and breaches of primary rules, the content of
state responsibility and its legal consequences.

(a) The Crime of Genocide

The Convention on the Prevention and Punishment of the Crime of Geno-
cide43 does not contain any provision, which refers to genocide as a crime fall-
ing within the ambit of municipal law of a country. The Convention clearly
categorises the criminal activity and related personal guilt of perpetrators in
terms of international law: Thus, article 1 of the Genocide Convention states
that, “the Contracting Parties confirm that genocide… is a crime under inter-
national law which they undertake to prevent and to punish”. This provision
establishes state obligations on an international level44 but does not elucidate
the legal terms of this international crime.
Article 2 of the Convention is more instructive in this regard. It sets out the
legal character and content of the crime of genocide and describes it as sys-
tematic killing of and/or systematic violence against a national, ethnic, racial
or religious group of people, which is committed with the specific intent to
destroy such a group completely or partially. It is the specific intent to destroy
such groups in addition to deliberate killings or violent activity which distin-
guishes the crime of murder under municipal criminal law from the interna-
tional-law crime of genocide.
In terms of article 4 of the Convention, persons committing activities and
having the specific intent envisaged by article 2, irrespective of “whether they
are constitutionally responsible rulers, public officials or private individuals”,
are punishable.
This regulatory concept of the Genocide Convention combines individual
criminal responsibility for genocide with the obligation of the contracting
parties of the Convention to enact the necessary legislation to make genocide
a crime in their domestic criminal law codes and to prevent and punish all
forms of genocide under their jurisdiction as far as that is within their power.
In terms of article 4 of the Genocide Convention, perpetrators of the crime
of genocide can be state officials as well as private individuals. What is still
disputed, is whether the Convention can also be violated by states in addition

43 Adopted by Resolution 260 (iii) of the United Nations General Assembly on 9 December
1948.
44 Without clarifying the range of these conventional state obligations which is still disput-
ed, see Gaeta (n 35), p. 631 on the controversy on judgements in the genocide cases by the
icj in Bosnia v Serbia icj Judgment (26 February 2007) paras 162, 165, 166 and Croatia v
Serbia, icj Judgment of 18 November 2008, icj Reports (2008), p. 3.
18 Wolf

to individuals. In the Bosnia Genocide case,45 the Former Republic of Yugo-

slavia (fry) and Serbia disputed the existence of a separate state obligation
under the Genocide Convention not to commit genocide, arguing that the
Convention is a classic international law treaty, dealing with crimes commit-
ted by individuals, not by states. The icj disagreed and held that article 1 of
the Convention creates a binding obligation of contracting parties to prevent
genocide and that it would therefore be contradictory not to accept an implied
prohibition to commit genocide.46
The icj’s position can be summarised as follows: Any person, regardless
whether such a person is a public official or a private individual, who com-
mits one of the genocidal acts (specified by article 2) with intent to destroy a
national, ethnic, racial or religious group, should be punished for the crime of
genocide. If a state fails to prevent such crimes or to prosecute and punish the
perpetrators, it violates it’s obligations under the Genocide Convention and
becomes responsible for an internationally wrongful act in terms of the ilc
Draft Articles if the violation can be attributed to the state. The icj’s approach
to different regimes of responsibility is based on the distinction between pri-
mary and secondary rules. When the perpetrators are individuals, the crime
of genocide is a criminal act at the level of primary rules with no implications
regarding an internationally wrongful act of a state. In contrast to, the violation
of a state’s primary obligations under the Genocide Convention triggers the
collective responsibility of the state in terms of the secondary rules of the ilc
Draft Articles. To say that an individual person commits genocide has a very
different legal meaning compared with the statement that a state ‘commits’
genocide. By violating conventional provisions prohibiting different forms of
participation in committing genocide, a state does not become a principal per-
petrator of the crime of genocide.
Such an interpretation of individual criminal responsibility and collective
state responsibility sounds credible. However, if one looks at the wording of
the acts of genocide listed by article 3 of the Genocide Convention, it does
not appear to be that convincing. Article 3 lists the general crime of genocide
the top, followed by four different forbidden acts, viz conspiracy, incitement or
the attempt to commit genocide and complicity in committing genocide. Con-
spiracy, incitement and complicity are typical of intertwining genocide with a
governmental policy. If it should have been the intention of this provision to
include a state’s involvement as part of the content of the principal crime of
genocide as a primary rule, the concept of collective state responsibility for

45 Bosnia v Serbia icj Judgment (26 February 2007) paras 162, 165, 166.
46 This argument was severely criticized by Gaeta (n. 35), pp. 631–633 and 637–640.
Individual and State Responsibility 19

the same crime at the level of secondary rules is stripped of its purpose. To
interpret article 3 as being confined to forms of individual criminal participa-
tion in the general offence without any state involvement would therefore be
more convincing.
A major difficulty of the concepts of responsibility under the Genocide
Convention is the rudimentary contents of the primary rules regarding the le-
gal effects of the crime of genocide.47 The Convention only declares that the
genocidal acts listed by article 3 are crimes under international law and must
be prosecuted and punished. Different criminal law responses to the princi-
pal crime of genocide, on one hand, and forms of participation in the general
crime, ie planning, aiding and abetting it, are left completely in the discretion
of states to regulate that in their domestic criminal law. This deficiency has
detrimental repercussions for secondary rules of state responsibility.48 The
comfortable solution to fill such loopholes in secondary rules by reference to
the elements of primary rules doesn’t function when it comes to responsibility
for the crime of genocide.

(b) Crimes against Humanity

Crimes against humanity are not regulated by a single international conven-
tion. The list of international crimes specified by the Charter of the Interna-
tional Military Tribunal49 encompassed crimes against peace, war crimes and
crimes against humanity. This was the first step in a process to conclude a more
comprehensive peace treaty after World War ii. Article 6 of the Nuremberg
Charter of the International Military Tribunal50 determined that the tribu-
nal’s jurisdiction included “the power to try and punish persons who acting
in the interests of the European Axis countries, whether as individuals or as
members of organizations, committed any of the following crimes”, includ-
ing crimes against humanity. The ‘organizations’ to which article 6 referred
were the National Socialist Party, the Reich’s cabinet, the Schutzstaffel (ss), the

47 On the primary obligations of a state to prevent and punish the crime of genocide, see the
recent Resolution 2150 (2014) of the un Security Council. The Resolution is based on the
premise that impunity of individual perpetrators is one of the main problems in the con-
text of genocide. Resolution 2150 invokes demanding words addressed at the community
of states.
48 In its decisions on genocide quoted above (n 41), the icj was unable to resolve the difficul-
ties created by this loophole and was criticized for this. See n. 44 and n. 46 supra.
49 Nuremberg Trial Proceedings, vol. 1, Charter of the International Military Tribunal,
contained in the Avalon Project archive at Yale Law School.
50 Annex to the Agreement for the Prosecution of the Major War Criminals of the European
Axis, United Nations Refugee Agency.
20 Wolf

Sicherheitsdienst (sd), the Gestapo, the Sturmabteilung (sa) and the General
Staff and High Command consisting of senior military officers. Article 9 makes
it clear that these organizations were targeted by the criminal law concept of
the Nuremberg Charter, and specified that “at the trial of any individual mem-
ber of any group or organization the Tribunal may declare (in accordance with
any act of which the individual may be convicted) that the group or organiza-
tion of which the individual was a member was a criminal organization”.
The Nuremberg Tribunal ruled that only individuals could be held responsi-
ble in terms of criminal law, arguing that “crimes against international law are
committed by men, not by abstract entities, and only by punishing individuals
who commit such crimes can the provision of international law be enforced”.51
The notion of collective guilt has not been endorsed by international criminal
law until today.
It should not be overlooked, though, that crimes against humanity are often
embedded in the sphere of power of a state. This is covered by article 7 of the
Rome Statute, which in paragraph 1 lists subcategories of crimes against hu-
manity. Paragraph 2 expands on some of these subcategories in more detail.
Paragraph 1 assumes an element of state involvement in each of the subcat-
egories by focussing on acts “committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack”.
Paragraph 2 (a) adds that an “attack directed against any civilian population”
means “a course of conduct involving the multiple committing of acts referred
to in paragraph 1 against any civilian population pursuant to or in furtherance
of a State or organizational policy to commit such attack”.52
These elements shaped crimes against humanity as a category of large and
systematic offences backed by official state power that involve such a degree of
brutality, that it endangers international security or shocks the conscience of
humankind.53 The restriction of crimes against humanity to individual crimi-
nal offences appears to be of a more ‘technical’ nature due to the scope of juris-
diction of the icc and due to the fact that ‘state crimes’ cannot have a criminal
law character. Hence, article 7(1) of the Rome Statute requires that individual
perpetrators of crimes against humanity should act in a ‘state environment’.
Without the requirement of a ‘state environment’, their crimes would be of no

51 The Trial of Major War Criminals: Proceedings of the International Military Tribunal
Sitting at Nuremberg Germany, Part 22, p. 447.
52 Cf G. Sluiter, “Chapeau Elements of Crimes against Humanity in the Jurisprudence of the
un ad hoc Tribunals” in L.N. Sadat (ed.) Forging a Convention for Crimes against Humanity
(2011), p. 102.
53 Cf B. Ferencz, “Crimes against humanity”, in R. Bernhardt (ed.) epil (1985), p. 869.
Individual and State Responsibility 21

concern to the international community because it would not be a crime fall-

ing under the jurisdiction of the Rome Statute in terms of article 5. After World
War ii crimes against humanity slowly developed into a category of interna-
tional crimes in its own right.54
In the following sections torture, apartheid and disappearances as subcat-
egories of crimes against humanity are discussed because the characteristic
nature of these crimes combines individual criminal conduct with such crimes
being backed by governmental policy.

(i) The Crime of Torture

The Convention against Torture makes no reference to international crimes
or one of its subcategories.55 One therefore has to look into the other inter-
national law instruments dealing with torture to determine its place as an in-
ternational crime within the developing and mutual connected frameworks
of International Criminal Law and the law of State Responsibility. The quali-
fication of torture as a crime is based directly on public international law ir-
respective of domestic legislation. The preamble emphasizes the obligation
of all states to promote universal respect for human rights and fundamental
freedoms in article 55 of the un Charter. It further refers to article 5 of the Uni-
versal Declaration of Human Rights and article 7 of the Covenant on Civil and
Political Rights, both prohibiting torture.56 The Convention defines “torture”
as any severe pain or suffering when it is “inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity” (article 1).57

54 This development is expressed by current endeavours to draft a new convention for

crimes against humanity. For a discussion, see the contribution on this topic in L.N. Sadat
(ed.) Forging a Convention for Crimes against Humanity (2011).
55 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted by United Nations General Assembly, Resolution 39/46 of 10 De-
cember 1984; entry into force 26 June 1987.
56 The proscription of torture evolved in the field of humanitarian law that regulates how
armed conflicts should be conducted. According to art 4 of the Hague Regulations re-
specting the Laws and Customs of War on Land (Annex to Convention iv of 1907), bellig-
erent parties are under the obligation ‘to treat prisoners of war humanely’. In the course
of state practice this provision developed into a rule of customary law prohibiting torture
of prisoners of war on the basis of reciprocity.
57 In 2014, President Obama admitted that the cia committed torture by using ‘enhanced
interrogation techniques’ to press information from suspects of terrorism in so-called
‘black site’ prisons in the aftermath of the 9/11 attacks during the era of the Bush adminis-
tration At the same time, however, the president defended the cia Director John Brennan
22 Wolf

More recently, torture has been included as a crime against humanity in

three different international law instruments, viz. article 5 of the Statute of
the ad hoc International Criminal Tribunal for the former Yugoslavia58 and ar-
ticle 3 of the corresponding statute creating the Criminal Tribunal in Rwanda59
and finally in article 7(1)(f) Rome Statute. In these legal instruments respon-
sibility for torture is no longer expressively restricted to acts committed by or
controlled by state authorities and state officials. The intention of the drafters
was to save the applicability of the crime of torture in conflict-situations with
one or more non-state parties of the conflict. In practical terms the emphasis
remains in any case to be put on illegalities committed by state officials or
persons acting under the colour of law, as long as the details of complicity and
co-operation between non-state actors and state officials in the field of torture
are not legally clarified by conventions or state practice. The same follows from
the qualification of torture as a crime against humanity in all three legal instru-
ments mentioned above. Due to this qualification the element of torturers act-
ing in a “state environment” in terms of the chapeau-clause applies according
to article 7 paragraph 1 Rome Statute to all crimes against humanity.60 From
this it follows that to abandon the explicit requirement that torturers must be
state officials in the above-mentioned legal instruments is rather a declaratory
step if one accepts a broad meaning of “state officials”, including representa-
tives of non-state parties to a conflict.
Preventative measures to implement the prohibition of torture either by
the Convention against Torture or by other legal instruments have failed. The
most that can be said is that torture is a crime under international law and
that individuals accused of having committed torture must be detained where
ever they are found and either brought before a court or extradited (univer-
sal jurisdiction).61 It is this universal jurisdiction principle which makes one
of two differences between the Convention against Torture on one hand and
the other legal instruments mentioned above on the other hand, not entail-
ing this principle. A second difference is the following. To qualify as a crime
against humanity torture must be part of a widespread or systematic attack

and refused to initiate the prosecution of the cia officers who tortured such suspects. See
P. Martin ‘Obama Defends cia Torturers’ Global Research (2 August 2014).
58 un Doc S/25704.
59 un Security Council Res. No. 955 (1994).
60 Cf K. Ambos, “Prosecuting International Crimes at the National and International Level:
Between justice and realpolitik”, in M. Ratner, T. Singenstein and P. Weiss (eds.) Interna-
tional Prosecution of Human Rights Crimes (2007), p. 55.
61 G. Robertson Crimes Against Humanity. The Struggle for Global Justice, (3rd ed., 2006),
p. 266.
Individual and State Responsibility 23

directed against civilians as a measure of state policy, an element which lacks

in the Torture Convention and broadens the applicability of torture under this
Convention.

(ii) The Crime of Apartheid

The Convention on the Suppression and Punishment of the Crime of Apart-
heid62 declares apartheid a crime against humanity. Article 1 defines apartheid
as “inhuman acts resulting from the policies and practices of apartheid and
similar policies and practices of racial segregation and discrimination”. Like
the international crimes of genocide and a war of aggression this description
highlights the importance of these crimes in public international law and im-
plicitly clarifies the strong involvement of governmental policy in committing
apartheid. It cannot be classified as a self-executing criminal offence though.
This gap has to be bridged over at the level of municipal criminal law. Such
provisions usually take on the form of an anti-discrimination clause, prohibit-
ing inter alia any discrimination as to race or colour.
The character of apartheid as an international crime, which is installed by
official governmental policies and affirmed by societal prejudice makes it dif-
ficult to pin-point criminal perpetrators of such a system because it has spread
through society as a whole.63
When the municipal criminal law of a state clearly defines such criminal
offences, the legal system can take its course to punish private individuals or
groups committing such criminal acts. It is more difficult to invoke criminal
sanctions when state officials create and implement such apartheid policies.
As a rule, the relevant state would be responsible under the rules of state re-
sponsibility when it does not prevent or prosecute forms of apartheid in its
jurisdiction.
The difficulty is that the legal consequences of restitution are not appropri-
ate to invoke state responsibility in regard to this category of crimes against
humanity because there is no transborder damage of other state and because
the criminal behaviour is sanctioned by official governmental policies. Thus,
legal measures to deal with the crime of apartheid took on the form of counter-
measures by third party states, for example, economic sanctions and various
forms of political pressure.64

62 Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30
November 1973.
63 It hardly came as a surprise that after the end of Apartheid in South Africa nobody has
been prosecuted for the crime.
64 See A. Klotz, Norms in International Relations: The Struggle Against Apartheid (1995).
24 Wolf

(iii) The Crime of Enforced Disappearances

According to article 5 of the International Convention for the Protection of
All Persons from Enforced Disappearance,65 the crime of enforced disappear-
ances is an offence under domestic criminal law of states. According to article
6 of the Convention, the offence changes its character and is classified as a
crime against humanity as defined in applicable international law,66 if forced
disappearances are committed in a widespread or systematic way. In addition
to state involvement as required by the chapeau provision of article 7(1) of
the Rome Statute that refers to crimes against humanity, state involvement in
committing enforced disappearance is also required as a substantial element
in terms of in the definition of enforced disappearances set out in article 2 of
the Enforced Disappearances Convention. In terms of the latter provision, ‘en-
forced disappearance’ is considered to be

the arrest, detention, abduction or any other form of deprivation of lib-

erty by agents of the state or by persons or groups of persons acting with
the authorization, support or acquiescence of the state, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law.

This definition adds two further substantial elements of state involvement to

the one already contained in the chapeau provision of article 7(1) of the Rome
Statute. The first refers to the physical commitment of enforced disappear-
ance directly by state agents or indirectly by persons acting with the support
or under the control of the state. The second element is somewhat concealed
in the sense that, in practice, enforced disappearances are usually part of a
covert criminal government policy against political opponents. The elements
of ‘refusal to acknowledge’ and ‘concealment’ in the definition of enforced dis-
appearances are crucial to distinguish the latter from ordinary deprivation of
liberty or unlawful deportation.67 The actual involvement of state agents in
committing the crime as part of a covert government policy makes enforced
disappearance a ‘state crime’. Thus, in the context of the more complex cat-
egory of international crimes, state crimes as such do not have a criminal char-
acter. The collective wrongfulness of enforced disappearance should therefore

65 Annex to United Nations ga Resolution A/RES/61/177 of 20 December 2006 (entered into

force on 23 December 2010).
66 The applicable international law is inter alia contained in art 7(1)(i) of the Rome Statute.
67 Giorgou (n. 9), p. 51.
Individual and State Responsibility 25

be distinguished from international crimes committed by individuals. Yet, it

is intertwined with crimes committed by individuals in a manner that makes
wrongful state involvement a prerequisite for the individual crime.68
The legal consequences arising out of wrongful state involvement in the
commitment of the crime by individuals still have to be clarified. In terms of
article 24(4) of the International Convention on the Crime of Enforced Disap-
pearance, “each state party shall ensure in its legal system that the victims of
enforced disappearance have the right to obtain reparation and prompt, fair
and adequate compensation”.
This provision of the Convention specifically regulates civil law conse-
quences under the domestic law of state parties. The ilc Draft Articles, in con-
trast to, do not regulate legal consequences at the international law level for a
state’s wrongful involvement of enforced disappearances.69

(c) The Crime of Aggression

Chapter vii of the United Nations Charter confers the competence upon the
Security Council to determine acts of aggression in order to restore interna-
tional peace and security. Although the power to determine an act of aggres-
sion is of fundamental importance for the conception of the United Nations
Charter as a whole, an ‘act of aggression’ has not been defined in the Charter
itself nor in any of the major resolutions of the United Nations’ organs.70
The definition of aggression in terms of article 3314 (xxix) of the General
Assembly of the United Nations71 contains a very abstract description of dif-
ferent categories of violations of the prohibition to use force (article 2 (4) un
Charter), but does not clarify the different legal concepts underpinning these
violations and the different legal consequences of the respective violations.72

68 This makes ‘state policy’ a specific qualitative element of the crime of enforced disap-
pearance, independent from and in addition to the general ‘state policy’ element which is
required for all crimes against humanity. This is correctly typified by Giorgou (n. 9), p. 54.
69 Unfortunately, provisions clarifying collective state responsibility are not found in the
Convention against Enforced Disappearances (n. 65). This leaves the field of state respon-
sibility in this regard somewhat in the dark. As the detailed analysis by Giorgou (n. 9),
pp. 55–66 shows the problem boils down to the question how the primary norms of the
Convention against Enforced Disappearance are related to the secondary rules of the ilc
Draft Articles on state responsibility.
70 Since the launch of the un over 60 years ago, the Security Council has never decided
in a conflict brought before it that aggression in the sense of article 39 un Charter has
occurred.
71 Annexed to unga Resolution 3314 (xxix) of 14 December 1974.
72 Article 5(2) of the un General Assembly’s definition of aggression refers both to aggres-
sion as an international crime and aggression invoking collective state responsibility
26 Wolf

Only the first and most severe form of aggression of the different categories
enumerated in ga Res 3314 (xxix), namely a war of aggression, qualifies as
an international crime in terms of article 5(2) of this resolution and triggers
individual criminal responsibility of the persons planning, preparing and wag-
ing the war of aggression. All other less serious forms of aggression give rise
to international responsibility of states (article 5(2) 2nd sentence ga Res 3314,
xxix).
To single wars of aggression out for individual responsibility, whereas in-
dividual responsibility for other acts of aggression is precluded, seems rather
strange. A war of aggression obviously cannot be committed without relying
on the military capacity of a state. To understand why only this form of aggres-
sion triggers individual criminal responsibility parallel to state responsibility,
one has to contextualise the categories of aggression listed in article 3(a) to
(g) Annex to ga Res 3314 (xxix). Individual criminal responsibility for wars
of a­ ggression does not relate to different degrees of gravity of an act of aggres-
sion. It primarily serves a specific form for the implementation of legal conse-
quences of a war of aggression. It is an additional measure next to restitution
in where state responsibility for a war of aggression is enforced. Individuals
that plan, prepare and wage a war of aggression loose the protection of rules
on immunity of state officials.73 Individual criminal responsibility of political
and military leaders thus correlates with the view that wars of aggression are
the ultimate form of aggression in international law.74
Article 8 bis (1) of the Rome Statute describes the crime of aggression as “the
planning, preparation, initiation or execution… of an act of aggression which,
by its character, gravity and scale, constitutes a manifest violation of the Char-
ter of the United Nations”.
In contrast to the intention of certain powerful states to punish a nation for
a war of aggression,75 such a verdict was never couched in legal terms and con-
nected to an international crime of aggression. In the Peace Treaties of Paris
of 1814/15, which concluded the Napoleonic Wars, Napoleon was treated as an
outlaw.76 He was first expelled to live on the island of Elba and subsequently

without systematically separating these different legal concepts. See Y. Dinstein, “Aggres-
sion”, in R. Wolfrum (ed.) Encyclopedia of Public International Law (2009), par. 13.
73 Principle iii of the Principles of Law Recognized in the Charter of the Nuremberg Tribu-
nal and in the Judgment of the Tribunal.
74 Cf. N. Weisbord, ‘Prosecuting Aggression’ 49 Harvard International Law Journal (2008),
p. 161.
75 H.H. Weiler, A. Cassese and M. Spinedi (eds.) International Crimes of State (1989).
76 The Peace Treaty, signed in Paris on 30 May 1814, formally ended the Napoleonic Wars.
This treaty formed the basis for further negotiations at the Vienna Congress in 1815.
Individual and State Responsibility 27

exiled to the island of St. Helena, where he was secretly poisoned. The punish-
ment by the alliance of Great Powers was addressed solely to Napoleon, not
to the French people as a nation even though it might implicitly have been
directed against the French nation as well.
More than a century transpired before another peace treaty blamed a head
of a state in terms of criminal law for waging an aggressive war. Article 227 in
conjunction with article 231 of the Peace Treaty of Versailles77 accused Emper-
or Wilhelm ii of Germany of “a supreme offence against international morality
and the sanctity of treaties”. A special tribunal was constituted under article
227 to try the accused and to determine his punishment. Essentially, the nebu-
lously formulated offence under article 227 related to Germany’s responsibility
in terms of article 231 of the Versailles Treaty for having waged an aggressive
war. The act of aggression was not proved but had to be accepted by Germany
since it was militarily defeated. Germany and Austria, who lost World War i,
deplored article 231 of the Versailles Treaty as an unjustified punishment by
blaming them for the outbreak of World War i.78
One should note, however, that article 231 dealt only with state responsibil-
ity and reparations – not with collective criminal responsibility for the act of
waging a war of aggression. At that time, international law did not yet prohibit
the waging of a war of aggression. The political agenda to punish the defeated
powers and Germany’s head of state was packaged in the Versailles Treaty: yet,
it was not based on law but couched in political terms.
The same concept of criminal responsibility for a war of aggression was fol-
lowed by the Nuremberg and the Tokyo Tribunals after World War ii. It was
limited to political and military leaders and collective responsibility for repa-
rations was attributed to the state. Obviously, criminal responsibility for be-
ing involved in a war of aggression can be attributed to public officials and
non-state actors acting as state agents. Conversely, state responsibility to pay
war reparations for a war of aggression can only be attributed to a state as a
subject of international law. This is the position endorsed by the International
Court of Justice in the Israeli Wall Advisory Opinion Case.79 Some critique was

Following Napoleon’s interim return to power, the Congress adopted an official Declara-
tion on 13 March 1815, which declared Napoleon to be an outlaw. The Declaration has
been reprinted in E. Baines History of the Wars of the French Revolution, from the breaking
out of the wars in 1792 to the restoration of general peace in 1815 (1818) vol. ii, pp. 433 f.
77 German Reichsgesetzblatt (1919), p. 687.
78 See J. Atkinson and J. Casanova, The Treaty of Versailles and its Consequences (2002).
79 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, International Court of Justice, 9 July 2004, 43 ilm (2004).
28 Wolf

voiced about the position taken by the Court.80 Yet, if one takes the separation
of individual responsibility and collective state responsibility in relation to in-
ternational crimes into account, the critique is not convincing.

(d) War Crimes

Article 8 paragraph 2 Rome Statute entails an exhaustive list of categories of war
crimes committed in the context of both international and non-­international
armed conflicts. However, the list lacks to determine the elements necessary
for a war crime to exist in a given case. As with other international crimes,
the unanimously shared view that the commitment of war crimes can trig-
ger individual criminal responsibility as well as collective state responsibility
contrasts with a lack of coherent legal concepts to clarify different legal conse-
quences and to explain how these different concepts are related to each other.
Looking at the development of international law since World Word ii it seems
to be beyond question today that as constitutive elements of a war crime the
crime must be directed against persons or property protected by international
humanitarian law, it must have taken place in the context of an international
armed conflict, it must be associated with such a conflict and the perpetrator
must have been aware of these factual circumstances.
The today’s concept of war crimes has two forerunners, “grave breaches”
of international humanitarian law and “other serious violations” of the laws
and customs applicable in international armed conflict (article 8 paragraph
2 (a) and (b) Rome Statute).81 Grave breaches of humanitarian law were first
coined in the four Geneva Conventions of 1949. The Conventions did not pro-
vide for any international criminal liability regarding these violations. Instead,
the provisions regulating grave breaches in the Geneva Conventions give rise
to special obligations of the State Parties for the enactment and enforcement
of domestic criminal law which affirms the principle of universal jurisdiction
with regard to war crimes. When it comes to the question of legal conse-
quences in international law the concept of grave breaches of humanitarian
law is silent.
The adoption of article 85 (5) Additional Protocol i of 1977 completed the
concept of grave breaches by adding criminal consequences in international
law to such breaches. Since then, the two concepts of grave breaches and war

80 See Dinstein (n. 72).

81 A description of the two concepts is given by the icrc Customary International Humani-
tarian Law, vol. i: Rules (2005), p. 569; see also N. Wagner, “The development of the grave
breaches regime and of individual criminal responsibility by the International Criminal
Tribunal for the former Yugoslavia”, 85 International Review of the Red Cross (2003), p. 351.
Individual and State Responsibility 29

crimes do overlap. Whether this applies also to the category of ‘grave breaches’
and the category of ‘serious violations’ of humanitarian law or whether the
first category refers to international armed conflicts whereas the second one
applies to non-international armed conflicts is still under discussion.82 Article
85 (5) Additional Protocol i of 1977 states that grave breaches shall be regarded
as war crimes. Since 1998 the same provision is entailed in article 8 paragraph
2 Rome Statute. The Geneva Conventions are silent with regard to the conse-
quences of state responsibility, for example, reparation and satisfaction, when
the conventions are violated. Almost thirty years after the Geneva Conventions
were adopted, article 91 of Additional Protocol i explicitly regulated compen-
sation for violations of humanitarian law in international armed conflicts in
the same terms as article 3 of the Hague Convention (iv) seventy years before.
Again, this brings the different legal concepts of responsibility for violating
international humanitarian law formally on equal footing without clarifying
criminal and state responsibility in terms of their mutual relationship in order
to answer the question how these two concepts can best be interconnected to
solve the implementation problems. In principle, individual responsibility for
war crimes could serve as an effective means to strengthen respect for inter-
national humanitarian law and to implement and enforce legal consequences
for its violation.
The International Criminal Tribunal for the Former Yugoslavia (icty)83 was
faced several times with the problem to decide cases of mass atrocities and
systematic patterns of war crimes during armed conflict based on the rules of
individual criminal responsibility for ‘grave breaches’ of international humani-
tarian law as laid down in the Geneva Conventions and Protocols, in article
8 Rome Statute and in articles 3 and 7 ICTY-Statute. To bring the gravity and
scope of these crimes into line with the limited options provided for within
the concept of individual criminal responsibility the icty based its jurispru-
dence with regard to these cases on the sophisticated formula of a joint crimi-
nal enterprise,84 a formula developed by the Tribunal itself.
The Tribunal started from the premise that “all persons who participate in
the planning, preparation or execution of serious violations of international
humanitarian law” are individually responsible for such violations.85 Based on
the wording of article 7 ICTY-Statute the Tribunal concludes that planning,

82 Mettraux (n. 34), p. 50; K. Dörmann (n. 18), p. 100.

83 Created and mandated by un Security Council Resolution 827 (1993) 32 ilm 1203.
84 Prosecutor v Tadic, Case No IT-94-1-A, Appeals Chamber Judgment, 15 July 1999, par 227.
85 Prosecutor v Krstic, Case No IT-98-33, T. Ch. i, 2 August 2001, par 601.
30 Wolf

instigating, ordering or otherwise aiding and abetting in the planning, prepara-

tion or execution of a crime referred to in articles 2 to 5 of the Statute leads to
forms of “inactive” participation as ‘co-perpetrators’ in the committing of the
respective crime via ‘complicitous conduct’. The result of this somewhat wob-
bling construction is in the eyes of the Tribunal unrestricted criminal respon-
sibility of individual ‘co-perpetrators’ even in cases of mass atrocities. It is not
a taking off incompatible with the dogma of individual criminal responsibility
which supports critics on the idea of a joint criminal enterprise. The essential
legal argument is rather one of an inadmissible ‘trick’ in the construction of
joint criminal enterprises. The fulcrum of this construction is a ‘common pur-
pose’ of a group of people planning and organizing systematic patterns of in-
ternational crimes. The icty transports the joint criminal enterprise into the
virtual world of a common purpose, which means: the joint criminal enterprise
takes place independent from any criminal conduct only in the mens rea of
participants, including ‘inactive’ co-perpetrators.
The concept of a joint criminal enterprise serves as an equivalent for co-
vert state participation in planning and organizing a systematic pattern of
crimes. This becomes even more evident if one takes into account the list
of factors used by the icty to determine the significance and the level of co-­
perpetration of an accused within the joint criminal enterprise-concept. The
role played by the accused in terms of the gravity and scope of the crime com-
mitted depends according to the icty inter alia on the size of the criminal
enterprise, the functions performed, the position of the accused, the amount
of time spent participating after acquiring knowledge of the criminality of
the system, the seriousness and the scope of the crimes committed and the
efficiency, zealousness or gratuitous cruelty exhibited in performing the actors
function. Taken together, these factors can also be understood as an implicit
description of a state’s, i.e. a government’s involvement in the planning and
committing of a systematic pattern of international crimes.
Methodologically, the icty substantiates the effects of a joint criminal en-
terprise equivalent to a hidden state participation strictly within the concept
of individual criminal responsibility with no reference at all to collective state
responsibility. This might be understandable in order to gain access to suffi-
cient evidence for proving the existence of a joint criminal enterprise. The dis-
advantages of this approach are to be seen in its renunciation of any possibility
to improve the enforcement of individual criminal responsibility for interna-
tional crimes by supportive forms of state responsibility. As a consequence, the
lack of enforcement-strategies to bring the different concepts of responsibili-
ties closer together turns out to be one of the main loopholes in the regimes
regulating war crimes.
Individual and State Responsibility 31

3.3 Summary
The primary rules in the Conventions analysed above contribute at different
levels to the concept of international crimes. Some provisions are considered
to be final regulations on international crimes, which have to be transformed
into the domestic law of member states.86 Others form the basis for a system-
atic development of this area of international law.87 Still others provide only
first steps to formulate substantial rules to establish a new area of state respon-
sibility for international crimes by collective wrongdoing. The difficulty with
a possibly evolving new category of collective wrongdoing is that general rules
formulated on this basis do not have a criminal character and are also not cov-
ered by the existing rules of the ilc Draft for State Responsibility.88
The gist from the above analyses with their emphasis on primary rules is
that, in principle, the legal status as state official or having been entrusted with
the exercise of state functions is in general no reason to exclude criminal re-
sponsibility for international crimes.89 All of the above conventions establish
individual responsibility for international crimes independent from the legal
or political status of perpetrators in the state’s political or military structures.
To summarise, individual criminal responsibility has become a strong and in-
dependent pillar in the legal framework of international crimes. From a sys-
tematic point of view, this compliments the general rule that international
crimes can neither be justified by superior orders nor by a state of emergency
or on the basis of similar considerations.
Among the above analysed Conventions and Protocols only Additional Pro-
tocol i of 1977 entails explicitly provisions regulating in a parallel manner both

86 E.g. art 2 of the Convention on the Prevention and Punishment of the Crime of Genocide,
1948.
87 This is true for the subcategories of aggression in art 3(a) to (g) in the Annex of Resolution
3314 (xxix) of the un General Assembly. None of these subcategories or the resolution
itself provides a succinct definition of aggression in terms of international law. It can be
said, though, that art 3 of this resolution was the starting point for all legal developments
in this regard.
88 The provisions on state complicity in international crimes are typical examples. State
complicity is of relevance for regulatory aspects as well as the connection between indi-
vidual responsibility and collective state responsibility for international crimes insofar as
active state involvement is a prerequisite.
89 This is still a matter of controversy, see Gaeta (n. 35), p. 645. According to the icj in its
genocide judgment (Bosnia v Serbia, 26 February 2007, par 179)‚ acts constituting interna-
tional crimes, such as genocide, when perpetrated by state organs in their official capacity
cannot be considered as acts of a private nature. This might be true for genocide but in
the case of other crimes it is questionable.
32 Wolf

forms of responsibility, individual criminal responsibility for war crimes and

collective state responsibility for violations of a state’s obligations under the
Geneva Conventions and Protocols. The relevance of all other Conventions
and legal instruments including the Rome Statute and the un General Assem-
bly’s resolution on the definition of aggression are confined to primary state
obligations regulating in different forms and to a different extent the obligation
of states to prevent and to suppress the respective international crimes and
to prosecute and punish the individual perpetrators. As for the rest, all ques-
tions of attribution and legal consequences of state responsibility are to be
answered by the secondary rules of the ilc Draft. The problem of separation,
complementarity, concurrence, shared responsibility or other forms of mutual
relationship between individual criminal responsibility and collective state re-
sponsibility is not addressed in the above analysed conventions and treaties.
There is one option laid down in some of the above analysed Conventions
and legal instruments, which could serve as a starting point to bring the differ-
ent forms of responsibility for violations of international crimes from the point
of view of a systematically coherent concept into line. These are the provi-
sions in article 3 Genocide Convention, article 4 Torture Convention, article 25
Rome Statute, article 7 icty Statute and article 5 Statute for the International
Criminal Tribunal for Rwanda, dealing with complicity. The legal content of all
of these provisions is still fragmentary and unsuitable to draw systematic con-
clusions. The common option underlying all of these provisions is the idea to
broaden the concept of individual criminal responsibility by including specific
acts of participation in the principal crime. Within the concept of criminal
responsibility for international crimes both the principal crime and complic-
ity are couched in terms of individual criminal responsibility. A possible step
to enlarge the current concept could be to open it for forms of collective state
complicity in the committing of individual. Consequently, such a step would
lead to collective legal consequences of state responsibility for complicity in
individual crimes in order to establish mutual supportive effects between in-
dividual criminal and collective state responsibility. However, such a step has
not yet found access into the current concept of international crimes.90 To get
rid of all kinds of legal protection for individuals and states in terms of rules
of immunity91 and of restrictions with regard to jurisdiction of national and
international Courts are steps into this direction.

90 Cf. B. Graefrath, “Complicity in the Law of International Responsibility”, 2 Revue Belge de

Droit International (1996), p. 371.
91 See the decision of the icj in the Arrest Warrant Case (Democratic Republic of Congo v
Belgium), 41 ilm (2002), p. 549.
Individual and State Responsibility 33

This is not to say that specifying state complicity in the commitment of

i­ndividual crimes or regulating forms of complicity among states and non-
state actors within the state responsibility-régime are the only options to
improve the enforcement of responsibilities for international crimes. Other
options are also possible, for instance to elaborate on the already existing
approaches of ‘serious breaches’ and ‘serious violations’ of international
­humanitarian law. The following difficulty has to be kept in mind regard-
ing all regulatory ­solutions, which start from the level of primary rules in
the above-mentioned C ­ onventions and other legal instruments. To connect
this primary rule ­level with the level of secondary rules in terms of the ilc
Draft rules of state ­responsibility requires more sophisticated developments
to overcome the still very rudimentary classification into primary and second-
ary rules of international law.

4 System-Forming Criteria for a Category of International Crimes in

Secondary Rules of State Responsibility (ilc Draft Articles on State
Responsibility)

The conventional approach of the safeguarding clause in article 58 of the ilc

Draft Articles to clarify the relation between individual responsibility and col-
lective state responsibility is of a purely formal nature and therefore from a
systemic point of view not satisfactory. To resolve the underlying difficulties,
one has to focus on the structural framework of the responsibility rules as sec-
ondary rules to respond to violations of state obligations under public inter-
national law.92 There are three different sets of rules with reference to state
responsibility that could potentially be used for this undertaking:

(i) the elements of an internationally wrongful act of a state creating its re-
sponsibility in Chapter i (article 2) of the ilc Draft;
(ii) the rules of attribution in Chapter ii (articles 4 to 11 of the ilc Draft); and
(iii) the rules regulating the content of the international responsibility of a
state in Part Two Chapter i–iii (articles 28 to article 41) of the ilc Draft.

Each of these sets of rules contains legal norms that give some indications
how the concepts of individual criminal responsibility and collective state

92 The concept of secondary rules in terms of the ilc Draft is explained by Crawford (n. 20),
p. 14.
34 Wolf

responsibility could best be related to or connected to each other in order to

improve their enforcement.

4.1 Elements of an Internationally Wrongful Act (Article 2 of the ilc

Draft Articles)
According to article 2 of the ilc Draft Articles, “there is an internationally
wrongful act of a State when conduct consisting of an action or omission (a) is
attributable to the State under international law, and (b) constitutes a breach
of an international obligation of the State”.
This ‘two elements approach’93 proceeds from the basis of empirical con-
duct of natural persons, which is legally attached to the state in terms of one of
the rules of attribution laid down in articles 4 to 11 of the ilc Draft Articles. The
different concepts of criminal responsibility and collective state responsibility
for international crimes are in principle compatible. Both concepts rely on em-
pirical conduct of natural persons: it could either take the form of an action or
an omission in a given case. This is noteworthy insofar as even collective state
responsibility in the framework of the ilc Draft depends on empirical conduct
of natural human beings. Until now, the International Law Commission has
not provided a plausible explanation on the basis of international law how
the conduct of natural persons could shift towards collective responsibility of
states. This is one of the fundamental loopholes in the systematic framework
of the ilc Draft Articles on state responsibility.
It is the second element listed by article 2 ilc Draft, i.e. the breach of an inter-
national obligation of the state, which marks a distinction between individual
criminal and collective state responsibility for international crimes. This is due,
firstly, to the different structure of a violation of public international law, i.e.
the breach of a state’s obligation in cases of state responsibility, and a criminal
offense in cases of international crimes committed by individuals. With regard
to international crimes the second element of state responsibility (the breach
of a state’s obligation) encompasses an obligation to prosecute and punish the
perpetrator of the crime. In essence, this obligation leads to separating the state
from criminal legal consequences of international crimes. It is possible that
these two types of transgressions could overlap with a state acting in breach
of its obligations and state actors committing an international crime. As will
be indicated subsequently, there are legal limitations where concurrent forms
of individual criminal responsibility and state responsibility for international

93 For a detailed exposition of the ‘two elements approach’ and a critical analysis of that, see
Wolf (n. 26), pp. 42, 148 ff.
Individual and State Responsibility 35

crimes with the same factual background are excluded.94 The reason for sepa-
rate and exclusionary effects follows from the fact that individual conduct of a
person committing an international crime can reach a form and degree of vio-
lating public international law that cannot legally be qualified as an act of the
state anymore, not even as an internationally wrongful act of the state. In other
words, such criminal behaviour may not be attributable to a state anymore. The
reason for this can be found in the different sets of rules of attribution in Chap-
ter ii of the ilc Draft Articles, which will be analysed subsequently.

4.2 Setting the Courses of Responsibility through Different Rules and

Concepts of Attribution
The doctrinal basis of state responsibility, i.e. the ‘internationally wrongful act
of a state’, is an artificial construct consisting of heterogeneous elements. The
heterogeneity of the rules of attribution as set out by Chapter ii of the ilc
Draft Articles becomes evident from the legal status of a state organ in article
4 in contrast to the mere de facto conduct of a person or a group of persons in
terms of article 8 of the ilc Draft Articles who act on the instructions of, or
under the direction or control of, that state in carrying out that conduct.

(a) De jure State Organs and de facto State Organs and Agents
The distinction between de jure and de facto state organs and agents makes a
further systemization of international crimes as a new category of internation-
al law possible. In particular, the comprehensive content of state obligations to
prevent international crimes and to prosecute and punish individual perpetra-
tors combines two different regimes of responsibility under international law
in a specific way, viz. punishment by criminal courts for personal criminal guilt
if the state fails to prevent that individuals commit the crime. Such state failure
consists of omissions by de jure state organs to undertake and exercise in due
diligence all available measures under the given circumstances.
It is important to note that all cases of state responsibility for omissions are
cases of direct attribution of conduct of a de jure state organ in terms of article 4
ilc Draft Articles to the state as a subject of international law. General state du-
ties in the field of securing law and order and policing are utilised to prevent in-
ternational crimes, which indirectly contributes to the control of such crimes.

94 This is the position taken by the judgments of the Nuremberg Tribunal and the Jerusa-
lem District Court in the Eichmann case. On the Eichmann Case, see H. Mulisch Straf-
sache 40/61. Eine Reportage über den Eichmann-Prozess (1987); D.B. Schmorak (ed.) Der
Eichmann-Prozeß. Dargestellt anhand der in Nürnberg und in Jerusalem vorgelegten Doku-
mente und Gerichtsprotokolle (1964).
36 Wolf

Violations of a state’s international law obligations arising out of conduct

by de facto state organs and de facto state agents are completely different. Real
action is a prerequisite for attribution of responsibility in such instances; at-
tribution of conduct of a de facto organs and agents cannot be based on an
omission to take action. An omission violating a state’s obligation under in-
ternational law is always an omission of a state organ, which is by domestic
law the competent organ that should fulfil the state’s obligations properly by
doing what is required. By definition these obligations should be executed by a
de jure state organ. To establish a coherent concept of international crimes for
purposes of system-building, the emphasis is on state obligations to prevent,
prosecute and punish international crimes by individual perpetrators. The
conceptual step, which is still missing, should focuses on how to compel states
to fulfil their obligations. As mentioned above, this refers to conduct of de jure
state organs, not of de facto organs and agents.

(b) No Transparent Distinction between de jure Organs and de facto

Organs and Agents in the Regulatory Framework of Chapter ii of
the ilc Draft Articles
The distinction made between attribution of conduct of de jure state organs
and de facto state organs respectively by international Courts and Tribunals in
terms of Chapter ii of the ilc Draft Articles is not clearly regulated.
The general rule of attribution in article 4 in the Draft Rules refers to de
jure state organs under domestic law whereas most of the subsequent rules of
attribution in articles 5 to 11 are dealing with balancing and counterbalancing
effects of attribution on the level of international law and do not explicitly dis-
tinguish between de jure and de facto state organs and agents. Only the rules of
attribution in articles 8 and 9 of the Draft Rules contain a de facto element, but
do not clarify whether the instructions, directions or control in terms of article
8 refer to de jure or de facto state officials. Article 4 of the ilc Draft Articles
does not refer to the distinction between conduct of de jure and de facto state
organs. It is also not possible to establish a coherent concept from the rules in
articles 5 to 11, which contain different de facto elements to establish the legal
effects of attribution.
The loopholes and inconsistencies in the regulation of attribution is primar-
ily due to the fact that the member states of the United Nations are forbidden
to intervene in matters that fall essentially within the scope of domestic juris-
diction of states (article 2(7) of the un Charter). Consequently, article 4 of the
ilc Draft Articles refrains from regulating the status of de jure state organs in
the ilc Draft Articles and reserves that for domestic law. This does not apply to
de facto state organs because they do not have a recognised legal status either
Individual and State Responsibility 37

in terms of a state’s domestic law or in terms international law. It would be

fair to suggest that the different de facto elements in the rules of attribution of
Chapter ii are simply a way for replenishing and balancing the different results
of attribution in terms of the general rule in article 4.

(c) Disturbing Spill-Overs on Jurisprudence of International Courts

and Tribunals and Legal Doctrine
In terms of the jurisprudence of the International Court of Justice (icj) and
some international law scholars, the attribution of responsibility for conduct
of de facto state organs could be derived from both article 4 and article 8 of
the ilc Draft Articles.95 Consequently state organs are referred to as a gen-
eral category in international law, with de jure and de facto state organs as
subcategories.
The difficulty is that such a general category of state organs does not exist
in international law. The range of activities of de jure and de facto state organs
could include activities ranging from the exercise of official state functions
to the committing of international crimes and mass atrocities by ad hoc state
agents or non-state actors acting under governmental control. From a legal
perspective, such a broad category of a ‘state organ’ would be meaningless.96
It would render the regulatory system in Chapter ii of the ilc Draft obsolete.
As a matter of fact, attributions allegedly based on conduct of de facto state or-
gans cannot establish any legal effects simply because such a category does not
exist. The legal effects are in fact derived from different foundations, such as
de facto control by state officials, instructions and directions from the govern-
mental level, aiding and abetting non-state actors by state officials and other

95 Whether the general rule of attribution in article 4 ilc Draft Articles or one or more of
the following rules of attribution in articles 5 to 11 ilc Draft Articles are the right place to
deal with de facto state organs has not yet been clarified. In the Cases Concerning Applica-
tion of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, icj Reports
(2007), p. 1 and Croatia v Serbia, Judgment of 18 November 2008, icj Reports (2008), p/1,
the icj referred to the general rule of attribution in article 4 of the ilc Draft Articles with
regard to activities of de facto state agents. Some scholars prefer to classify activities of de
facto state organs under art 8 ilc Draft: see Crawford’s (n 20) commentary to article 4 at
94. The uncertainty regarding the attribution of activities of de facto organs stems from
the lack of a coherent concept of a ‘state organ’ under international law. This legal lacuna
is sometimes filled with a reference to activities of de facto organs as a general category,
which leads to the above-mentioned inconsistency that such a general category does not
exist.
96 Wolf (n. 26), pp. 129 ff.
38 Wolf

forms of a participation of governmental officials in activities of ad hoc state

agents and non-state actors acting in fact on behalf of a State. The so-called
‘category’ of de facto state organs can only be described as a patchwork of oc-
casional elements of attribution with regard to conduct of actors,97 who do not
have the legal status of a state organs in domestic law but are in fact acting on
behalf of a state.
Chapter ii of the ilc Draft Articles does not provide a general international
law standard for bringing different systems of state organization on the level
of domestic laws in balance to establish general rules and concurrent results
of attribution under public international law. A general international law stan-
dard could be developed with a stricter assignment of conduct of de jure or-
gans and de facto organs to the relevant rules of attribution in Chapter ii of the
ilc Draft Articles.

(d) The Distinction Based on a Differentiation between Articles 4 and

8 of the ilc Draft Articles
The distinction between de jure and de facto state organs and agents is pre-
dominantly a distinction between article 4 and article 8 of the ilc Draft Arti-
cles. Such an understanding can also explain different results of attribution be-
tween these two articles. The predominant classification is to assign conduct
of de jure organs to article 4 and conduct of de facto organs and agents to article
8 of the ilc Draft Articles, but is not an encompassing classification. Minor de
jure and de facto elements of attribution are spread throughout Chapter ii ilc
Draft as a whole.

(i) General Rule of Attribution (Article 4 of the ilc Draft Articles)

Criminal conduct of individual perpetrators committing international crimes
can also be attributed to states in terms of the ilc Draft Articles on state re-
sponsibility insofar as the individual perpetrator has acted as a state organ un-
der the domestic law of that state. Persons acting as de jure state organs are
legal representatives of the state and are empowered by law to act in the name

97 To speak of de facto organ of a state with regard to people not having a legal status of a
state organ under domestic law doesn’t make any sense. The same is true when de facto
organs are put on equal footing with ‚private persons’ in the sense of former article 11
ilc Draft 1980 because conduct of private persons is by definition – which is still valid
in terms of the current version of this article – is under no circumstances attributable to
a state, even not under article 8 ilc Draft Articles. Article 8 was considered by R. Ago to
be the right place to deal with de facto organs. J. Griebel, Die Zurechnungskategorie der de
facto-Organe im Recht der Staatenverantwortlichkeit (2004) discusses the confusion about
state responsibility of de facto organs in detail.
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