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The Responsibility of States for International Crimes$

Nina H. B. Jørgensen

Print publication date: 2000

Print ISBN-13: 9780198298618

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198298618.001.0001

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Efforts to Codify and Develop the Law Relating to International Criminal Responsibility

Efforts to Codify and Develop the Law Relating to International Criminal Responsibility

Chapter:
(p.28) 2 Efforts to Codify and Develop the Law Relating to International Criminal Responsibility
Source:
The Responsibility of States for International Crimes
Author(s):

Nina H. B. Jørgensen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198298618.003.0002

Abstract and Keywords

This chapter describes the efforts to create a code of international criminal law of universal application. The lessons of Nuremberg informed subsequent efforts to advance international criminal law. This meant an emphasis on individual criminal responsibility until in 1976 the International Law Commission resurrected the early interest in the notion of state criminal responsibility.

Keywords:   international criminal law, Nuremberg, individual criminal responsibility, International Law Commission, state criminal responsibility

1. Introduction

The Nuremberg and Tokyo Trials generated much critical literature.1 While English and American jurists emphasized the Nuremberg Tribunal’s moral mandate and the need to satisfy world public conscience, German jurists condemned the fact that no individuals from the Allied side were indicted and that no judge from Germany or a neutral country was appointed to the Tribunal.2 They also regarded the Allies as being motivated by interests such as future security and power rather than the advancement of international law, and this view was partly shared by some English and American historians.3

The ideals of the interwar period had led to a drive to create a code of international criminal law of universal application and a court before which the developing rules could be applied impartially. No such system was in place by the end of the Second World War, and the lessons of Nuremberg informed subsequent efforts to advance international criminal law. This meant an emphasis on individual criminal responsibility until in 1976 the International Law Commission resurrected the early interest in the notion of state criminal responsibility.

(p.29) 2. Ideas for an International Criminal Code and Court

(a) The Advisory Committee of Jurists, 19204

In 1920, the Council of the League of Nations appointed an Advisory Committee of Jurists to frame the Statute of a Permanent Court of International Justice. In the Committee, Baron Descamps of Belgium proposed the establishment of a ‘High Court of International Justice’ to try those responsible for offences against international public order and the universal law of nations. Lord Phillimore, the British member, also favoured the establishment of such an institution, believing it would impartially contribute to the League’s ability to repress international crimes. The League Assembly took the view that if certain crimes were in future to be brought within the scope of international penal law, a criminal department might be set up in the Permanent Court of International Justice, but the Assembly felt that consideration of the problem was premature.5 The idea seemed radical at a time when only states were considered to be subjects of international law, although no mention was made of the possible criminal responsibility of states in this context.

(b) The International Law Association, 1922–1926

The International Law Association took up the question of creating an international criminal court at its conference in Buenos Aires in 1922,6 and decided that the matter was both urgent and essential in the interest of justice. A detailed plan was submitted by Professor Hugh Bellot in Stockholm in 1924,7 which was subsequently referred to a Special Committee. The Special Committee, in reporting back to the Association at the Vienna Conference in 1926,8 declared that the creation of a permanent international criminal court was both expedient and practicable.9 It was proposed to establish such a court in addition to and distinct from the Permanent Court of International Justice at the Hague, to exercise a separate jurisdiction in cases of states and individuals charged with violations of international obligations (p.30) of a penal character; violations of any treaty, convention, or declaration regulating the methods and conduct of warfare; and violations of the laws and customs of war generally accepted as binding by civilized nations. The Court was to have the power to order a guilty state to pay to the complaining state a pecuniary penalty; an indemnity for any damage done; or a sum by way of indemnity to any subject or citizen of the complaining state who proved loss or injury caused by the act or default of the defendant state or of any subject or citizen of that state.

(c) The Inter-Parliamentary Union, 1924–1925

The Inter-Parliamentary Union discussed the question of an international criminal court at conferences in Berne in 1924 and Washington in 1925. A permanent committee was created to make a study of the social, political, economic, and moral causes of wars of aggression in order to find practical solutions for the prevention of that crime, and to prepare a first draft of an ‘International Legal Code’. These resolutions were based on a report presented by Pella which was accompanied by an annex laying down certain fundamental propositions of international criminal law, such as the penal responsibility of individuals as well as of states.10

(d) The Association Internationale de Droit Pénal, 1926–1928

In 1926, the International Association of Penal Law, presided over by Pella, held its first International Congress of Penal Law in Brussels. The Congress took as the basis for its discussions reports prepared by Pella and Donnedieu de Vabres. A resolution was passed recommending that the Permanent Court of International Justice be empowered to deal with criminal matters, and that it should have competence to ‘hear all cases for penal responsibilities against states consequent upon an unjust aggression and for violations of international law’,11 and also cases against individuals arising from the crime of aggression and all violations of international law committed in times of peace or war. The crimes coming within the jurisdiction of the Court were to be defined by international conventions which would also prescribe the penal sanctions to be imposed by the Court. Sentences upon states would be enforced by the Council of the League of Nations, while those upon individuals would be implemented by a state chosen and supervised by the Council.

(p.31) A committee was set up by the Congress to prepare a draft statute of an international criminal court, and Pella was charged with this task at its first meeting in 1927. In 1928, Pella’s draft was adopted by the Association and communicated to the governments represented at the Congress and to the League of Nations. Pella revised his draft in 1946,12 and in 1947 the fifth International Congress of Penal Law recommended once more the establishment of a permanent international criminal court.13 The Association was to remain actively seized of the matter.14

(e) The Terrorism Convention, 1937

Some attention was paid to the elaborate draft codes and statutes for an international criminal law and court in the mid-1930s. The murder of the Yugoslav King, Alexander, and the French Minister for Foreign Affairs, Barthou, by Croatian nationalists at Marseilles on 9 October 1934 prompted the preparation of an International Convention against Terrorism by the League of Nations in 1937.15 Article I of the Convention reaffirms ‘the duty of every state to refrain from any act designed to encourage terrorist activities directed against another state and to prevent the acts in which such activities take shape’. The Convention is, however, framed in terms of individual responsibility. Linked to the Terrorism Convention, and dependent upon its entry into force, was a Convention for the Creation of an International Criminal Court for the trial of persons accused of having committed acts of terrorism.16 The Terrorism Convention was only ratified by India, and never came into force.17

(f) The Institut de Droit International, 1948 and 1952

In 1948, the Institut de Droit International took up discussion of the topic of an international criminal court.18 In 1952 a report presented by Donnedieu de Vabres19 recommended that an international criminal court be established by a General Assembly resolution to judge crimes against international law committed by heads of state, government agents, and their accomplices; crimes involving the responsibility of one state towards other states; and (p.32) crimes the repression of which represented an international interest. The report was based on the responses of members of the Institute to a questionnaire which revealed divergent attitudes towards the establishment of an international criminal court and to the relevance of state criminality. It was decided not to include the direct responsibility of states for crimes, even though ‘Une sanction judiciaire visant ces hautes personnes morales qui sont les sujets traditionnels et directs du droit international serait le complément logique d’un système de sécurité collective gouverné par ce droit’.20 Finch observed that he was not convinced of the practicability of establishing an international criminal court for the trial of individuals, as crimes against peace and humanity were already punishable by national courts and any nation which declined or omitted to do so was in fact a participant in the crime. He recommended the establishment of a tribunal before which the guilty governments themselves could be charged with these violations of international law. He suggested that the tribunal should be ‘vested with the power to pronounce judgment ex parte and submit the justice of its judgment to the bar of the public opinion of the world’.21 In the opinion of François, ‘une responsabilité pénale de l’État ne paraît pas exclue’,22 although Ross took the opposite view. The issue was not taken any further by the Institute.

3. The Genocide Convention, 1948

(a) Background to the Adoption of the Genocide Convention

In 1933, Raphael Lemkin submitted a proposal to the fifth International Conference for the Unification of Criminal Law held in Madrid to declare the destruction of racial, religious, or social collectivities a crime under international law. Lemkin envisaged the creation of two new international crimes: the crime of barbarism and the crime of vandalism. His proposal went as follows:

Whosoever, out of hatred towards a racial, religious, or social collectivity, or with a view to the extermination thereof, undertakes a punishable action against the life, bodily integrity, liberty, dignity, or economic existence of a person belonging to such a collectivity, is liable, for the crime of barbarity…

Whosoever, either out of hatred towards a racial, religious or social collectivity, or with a view to the extermination thereof, destroys its cultural or artistic works, will be liable for the crime of vandalism.23

(p.33) It is significant that this proposal was not accepted. As Sir Hartley Shawcross declared during a discussion on genocide in the UN General Assembly on 22 November 1946, the failure of the proposal made it impossible to punish some of the Nazi crimes after the Second World War, as there was an insufficient basis in existing international law to do so.24 The Nuremberg Charter was interpreted narrowly so that genocidal acts committed before the outbreak of the war were not punishable offences. Hence no precedent could be established to the effect that a state is prohibited from destroying groups of its own citizens.

In 1944, in his book Axis Rule in Occupied Europe, Lemkin coined the term ‘genocide’ which derived from the Greek word genos, meaning race, nation, or tribe, and the Latin tide, meaning killing. Lemkin described genocide as signifying a coordinated plan of different actions, aimed at the destruction of the essential foundations of the existence of the nation or group as an entity, where the actions involved were directed against individuals in their capacity as members of the group, and the goal was the eventual annihilation of the group itself. These actions traversed the political, social, cultural, economic, and biological fields, the field of physical existence, the religious field and the moral field.

Having traced the means of committing genocide during the Second World War, Lemkin urged the amendment of the Hague Regulations of 1899 and 1907 to include, first, every action infringing upon the life, liberty, health, corporal integrity, economic existence, and honour of a group of people when that action was committed because they belonged to a particular national, religious, or racial group; and second, every policy aimed at the destruction or the aggrandizement of one such group to the prejudice or detriment of another.25 The concept of genocide was accepted in Article 6(c) of the Nuremberg Charter, and the word was first used in the indictment of 8 October 1945 whereby the major German war criminals were alleged to have conducted ‘deliberate and systematic genocide, viz. the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups’.26 The concept was also employed in the subsequent trials of Nazi war criminals which took place under Control Council Law No. 10 and in the national courts of the Allies.27

Lemkin’s work provided the impetus for the unanimous adoption by the (p.34) General Assembly of Resolution 96(1) of 11 December 1946, according to which it was agreed:

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity…and is contrary to moral law and to the spirit and aims of the United Nations.

The General Assembly therefore affirmed:

genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices—whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds—are punishable.

In the same Resolution, the Economic and Social Council was requested to embark upon the drawing up of a Convention on Genocide. On 28 March 1947, the Council adopted Resolution 47 (IV) which instructed the Secretary-General:

(a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Development and Codification of International Law and, after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.28

A UN ad hoc Committee on Genocide was subsequently established by the Economic and Social Council and entrusted with the task of preparing a draft convention on the crime of genocide.29 The Committee met from 5 April to 10 May 1948, and adopted a draft convention which was reported to the Economic and Social Council,30 and transmitted to the Third Session of the General Assembly.31 Following consideration of the draft in the Sixth Committee of the General Assembly, the text of a Convention on the Prevention and Punishment of the Crime of Genocide was unanimously approved by the Assembly in 1948 and proposed for signature and ratification.32 The Convention33 entered into force on 12 January 1951.

In discussions by the General Assembly in plenary meeting,34 prior to the adoption of the Convention, there was disagreement over the second part of Article VI, which provided that perpetrators of genocide could be tried ‘by such international penal tribunal as may have jurisdiction with respect to (p.35) those Contracting Parties which shall have accepted its jurisdiction’. The Soviet delegation felt that this provision infringed upon the sovereignty of states; but several other delegations pointed out that genocide could be perpetrated by a state, or by individuals who might be representatives or agents of a state, and therefore the punishment of the crime could not be left to the state in which the alleged genocidal acts took place, as provided in the first part of Article VI. However, the principle of universal jurisdiction was abandoned by the ad hoc Committee on the basis that it would violate the sovereign rights of states. A further reason, highlighted by Robinson, was that ‘since Genocide involves or may involve the responsibility of a State, the principle of universal repression would result in making courts of foreign States the judge of the conduct of a foreign government, which could provoke international tension’.35 These arguments have been surpassed by customary law which defines genocide as a crime of universal jurisdiction.36

(b) State Responsibility under the Genocide Convention

The question arose during the preparation of the Genocide Convention as to whether it should make provision for the responsibility of states for genocide directly, in addition to their responsibility for the failure to prevent or punish acts of genocide. The travaux préparatoires indicate that the final version of the Convention was intended to deal exclusively with individual criminal responsibility, although the ambiguous wording of Article IX has been subjected to scrutiny in the literature both contemporaneously with the adoption of the Convention and subsequently. The question has attained renewed relevance in the light of the case before the ICJ concerning allegations by Bosnia-Herzegovina of genocide committed by Yugoslavia (Serbia-Montenegro).37

The UN Sixth (Legal) Committee spent fifty-one meetings discussing the draft Convention on Genocide and considered a number of amendments.38 Early in the debate, the UK proposed an amendment to Article V:

(p.36) Criminal responsibility for any act of genocide as specified in Articles II and IV shall extend not only to all private persons or associations, but also to states, governments, or organs or authorities of the state or government, by whom such acts are committed. Such acts committed by or on behalf of states or governments constitute a breach of the present Convention.39

The UK argued that the fact to be established was the penal responsibility of the state or the government itself, or even the organs or authorities of the state or government, which included heads of state and public officials.40 It argued further that even though it was not possible to imagine the punishment in its proper sense of states and governments, as they could not be brought before their own courts, states could nevertheless be brought before an international court which would have the power to order the cessation of genocidal acts. Those in favour of the amendment pointed out that because of the complex structure of the modern state, acts could often not be imputed to an individual but only to a whole system. No penal sanction was envisaged, but it was argued that other sanctions could be instituted against states, such as the dissolution of a criminal police or the seizure of material goods and financial resources belonging to the responsible government. It was also suggested that a provision for holding states responsible for the crime of genocide would bring out the close relationship between the question of genocide and the maintenance of peace, and might also act as a deterrent to states.

The amendment was rejected by twenty-four votes to twenty-two.41 The main opposition arguments were that the only punishment which could be imposed on states would be material reparations, which were unlikely to have the desired deterrent effect as they would be paid by the taxpayer. Reference was also made to the model of the Nuremberg Trials which, it was argued, had been more significant than a moral condemnation of the German state.

The UK also submitted an amendment to Article VII, providing for the punishment of genocide by national tribunals or by an international tribunal:

Where the act of genocide as specified by articles II and IV is, or is alleged to be the act of a state or government itself or of any organ or authority of the state or government, the matter shall, at the request of any other party to the present Convention, be referred to the ICJ, whose decision shall be final and binding.42

It was felt that this amendment had already been implicitly rejected by the rejection of the amendment to Article V and it was withdrawn, even though some representatives were adamant that the Convention should deal separately with the responsibility of individuals and states.

(p.37) Subsequently, Article IX of the Convention became the British target for including state responsibility in the Convention. In its original form, this article stated that disputes relating to the interpretation or application of the Convention should be submitted to the ICJ, provided that no dispute were submitted to the Court involving an issue which had been referred to and was pending before, or had been passed upon by, a competent international criminal tribunal. The Committee subsequently adopted43 by twenty-three votes to thirteen, with eight abstentions, a joint amendment to Article IX (then Article X) submitted by the UK and Belgium,44 and further amended by India,45 according to which any dispute between the contracting parties relating to the interpretation, application, or fulfilment of the Convention, including disputes relating to the responsibility of a state for any of the acts enumerated in Articles II and IV, should be submitted to the ICJ at the request of any of the contracting parties. The Soviet Union and Poland raised objections, but by way of explanation the UK representative, Fitzmaurice, stated that it was necessary to take into consideration the enormous practical difficulties of bringing rulers and heads of state to justice, except perhaps at the end of a war. As a result, the UK delegation felt that a provision to refer acts of genocide to the ICJ, and the inclusion of the idea of the international responsibility of states or governments, was imperative in order to establish an effective convention on genocide.46 The US Representative, Maktos, was more sceptical, and he:

did not share the opinion of the United Kingdom representative that genocide could be committed by juridical entities, such as the state or the government; in reality, genocide was always committed by individuals. It was one of the aims of the Convention on genocide to organize the punishment of that crime. It was necessary to punish perpetrators of acts of genocide, and not to envisage measures such as the cessation of imputed acts or payment of compensation.47

Fitzmaurice confirmed that the responsibility envisaged in the joint amendment ‘was civil responsibility, not criminal responsibility’.48 This was also the view of the French representative, Chaumont, who ‘was in no way opposed to the principle of the international responsibility of states as long as it was a matter of civil, and not criminal responsibility’.49 This opinion was shared by Demesmin of Haiti.50

In its ratification of the Convention, the Philippines stated that it did not consider Article IX ‘to extend the concept of state responsibility beyond that recognized by the generally accepted principles of international law’.51 The (p.38) US President, in presenting the Convention for the advice and consent of the Senate on 16 June 1949, felt it necessary to endorse a recommendation by the acting Secretary of State that such action be taken ‘with the understanding that Article IX shall be understood in the traditional sense of responsibility to another state for injuries sustained by nationals of the complaining state in violation of principles of international law, and shall not be understood as meaning that a state can be held liable in damages for injuries inflicted by it on its own nationals’.52 The literature contemporaneous with the adoption of the Genocide Convention conforms to this standpoint.

One of the earliest commentaries, which appears in the Yale Law Journal,53 stresses the link between Article VIII, under which states can call upon organs of the UN for the prevention and suppression of genocide, and Article IX. According to this commentator, the Security Council could have a potential case of genocide referred to it either directly under Article VIII, or a state disputing the Convention’s interpretation, application, or fulfilment might refer the matter to the Security Council from the ICJ as provided by Article 94(2) of the UN Charter. The Security Council could then adopt measures against the wrongdoing state provided the alleged genocide threatened international peace and security.

Kunz54 describes the Genocide Convention as old-fashioned and traditional, but declares its main innovation to be that genocide committed by a state against its own citizens is made a matter of international concern. He writes:

The crimes under Article II and III are ‘crimes under international law’, but not crimes against international law. These crimes are defined by international law; but individuals are only under a duty if and when the states enact the corresponding domestic legislation. The Convention gives criminal jurisdiction under its domestic law to the state in the territory of which the act was committed; in addition, as the Sixth Committee stated, Article VI ‘does not affect the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside of the state’.55

Kunz goes on to say that states alone are internationally responsible for genocide, but under the general conditions of state responsibility and not under criminal law.

Graven gave a course at the Hague Academy in 195056 in which he analysed the debate in the Sixth Committee on the nature of the state responsibility envisaged in the draft convention. He argued that the fundamental notion of the Convention was that all those responsible for acts of genocide (p.39) should be punished. He pointed to the argument of the UK Government in the Sixth Committee that in reality the state or government itself was responsible, although he accepted that in the result only physical persons could be punished under the Convention.

In Hudson’s57 opinion:

read as a whole, the Convention refers to the punishment of individuals only; the punishment of a state is not adumbrated in any way, and it is excluded from Article V by which the parties undertake to enact punitive legislation. Hence the ‘responsibility of a state’ referred to in Article IX is not criminal liability. Instead it is limited to the civil responsibility of a state, and such responsibility is governed, not by any provisions of the Convention, but by general international law.

Sibert goes further in denying that the Convention even imposes civil responsibility on states.58

Subsequent doctrine relating to the Genocide Convention does not differ radically from the early doctrine just outlined. Robinson, in his detailed commentary on the Convention, states that Article IX was regarded by the members of the Committee as involving civil responsibility.59 However, he goes on to say that the definition of civil responsibility in this context is by no means clear, and he raises the question whether it should be understood in the traditional sense of responsibility of the state that is in breach of its obligations to another state for injuries sustained by nationals of that state or in a broader sense. In other words:

If Genocide is a crime under an international Convention and if such crimes, when committed by a government in its own territory against its own citizens, are a matter of international concern, why should not the State responsible for acts of Genocide against its own nationals be liable for the reparation of the civil damages caused, just as it is responsible for the criminal prosecution of those who have perpetrated these acts against nationals of another State? This would seem to be the logical conclusion of the civil responsibility of the State. It would obviously be up to the International Court of Justice to decide how far the responsibility goes.60

More recently, Shaw has commented on the drafting of Article IX as follows:

Of particular interest is the provision relating to the question of jurisdiction over state responsibility for genocide. This was included in an attempt to make the Convention more effective, although considerable opposition was expressed on the grounds of the controversial and vague nature of state responsibility in areas of international criminal law. The majority took the view that it was rather an issue of civil responsibility involving liability to pay damages. The question of states having to compensate their (p.40) own nationals under an international legal rule also caused some interest in this connection, but without clarification or determination.61

The position seems to be that Article IX refers to the ordinary civil responsibility of states, although in the preparation of the Convention some states clearly wished it to go further, or for state responsibility to be the subject of a definitive article. Article IX deals with the enforcement of the Convention, rather than the substantive law, which may explain Sibert’s statement that the Convention does not deal directly with state responsibility. This, in Graven’s opinion, is a considerable flaw, which can be explained on the basis that:

‘puisque la convention est un document de droit pénai et non de droit civil’ il était inutile d’y prévoir une responsabilité et des réparations pécuniaires à la charge des Gouvernements, alors qu’on n’avait ‘pas l’intention de les punir’.62

He goes on to say:

C’est, selon nous, sinon une erreur du point de vue pratique et dans la situation du droit pénai et public actuelle, du moins un obstacle théorique extrêmement regrettable au progrès nécessaire du droit international.63

In a Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities by Ruhashyankiki in 1978, it was noted that at the present stage in the development of international criminal law, ‘the state can bear only political responsibility for international crimes’64 such as genocide. The Revised and Updated Report on the same question, prepared in 1985 by Whitaker,65 went further in asserting that a state’s collective responsibility, including sometimes liability for damages and restitution, was not necessarily excluded by the application of individual responsibility. Whitaker recommended that upon a revision of the Convention, consideration should be given to including provision for a state’s responsibility for genocide together with reparations, although he does not examine the nature of the proposed state responsibility.66

The establishment of a Convention dealing with the crime of genocide is significant, since by its nature genocide cannot be committed by individuals acting alone. Clearly, the international community was concerned to make provision for the prevention and punishment of genocide while the horrors of the Second World War were still fresh in the minds of governments and the general public; and the promotion of the concept of individual criminal responsibility under international law seemed appropriate in the light of the (p.41) Nuremberg Tribunal’s declarations on the matter. The Convention is, therefore, very much a reflection of the mood prevalent in the late 1940s, but does not entirely dismiss the notion of state responsibility for genocide, which was the topic of considerable discussion. The time now seems ripe to bring the Genocide Convention up to date. Conventions are tools, and if they are to be effective, they will need to be interpreted in a manner which keeps them apace with developments in international law.67

4. Structure, Functions, and the Three-Tier Work of the International Law Commission

In 1947, the UN established the International Law Commission (ILC) as a subsidiary organ of the General Assembly,68 which began to function in 1949. The ILC is composed of thirty-four members ‘who shall be persons of recognized competence in international law’.69 Members represent the principal legal systems of the world, and sit as individuals rather than as representatives of their governments. According to Article I of its Statute, the ILC ‘shall have for its object the promotion of the progressive development of international law and its codification’. The former expression refers to the preparation of draft conventions on subjects which have not yet been regulated by international law, or in regard to which the law has not yet been sufficiently developed in the practice of states, while the latter expression means the more precise formulation and systematization of rules of international law in areas where there has already been extensive state practice, precedent, and doctrine.70 The ILC has a good record of producing drafts which are acceptable to governments, as its membership combines technical qualities and experience of government work, and reflects a variety of political standpoints.

By Resolution 260B(III) of 9 December 1948, the General Assembly invited the ILC ‘to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions’, and requested it also ‘to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice’. At its first session in 1949, the ILC appointed Mr Alfaro and Mr Sandstrøm as Special Rapporteurs. Their reports were considered at the ILC’s second session.71 Alfaro proposed that ‘the jurisdiction of the international organ of criminal justice be exercised over states as well as over (p.42) individuals’, and ‘[t]hat all crimes for which states or individuals be tried by the international judicial organ be defined in an International Penal Code’.72

A majority in the ILC voted that the establishment of an international criminal tribunal was both desirable and possible. The creation of a criminal chamber in the International Court of Justice was not recommended, as this would have necessitated an amendment of the Statute of the Court which, in Article 34, provides that only states may be parties in cases before the Court.

By contrast, Sandstrøm73 argued that the time for an international criminal court was not yet ripe, and his position reflected the consensus of the world community in 1950. France was the only state among the Security Council’s permanent members to support the idea of an international criminal court. However, as no state wished to be responsible for obstructing the course of such an idea, the debate continued, and in 1951 the Special Committee of the General Assembly appointed to draft the Statute for the Formulation of an International Criminal Tribunal completed its task.74 It became apparent that many states were still unwilling to surrender any portion of their sovereignty to such a tribunal. A new Committee acted to save the project and a revised Statute was completed in 1953,75 which allowed more flexibility and voluntary participation on the part of states. In the 1951 Committee, a majority felt that the proposed court should not have jurisdiction over states, and this was reflected in Article 25 of the Draft Statute.76 This particular debate was not reopened in 1953, although the responsibility of corporations and other legal entities was discussed.77 By Resolution 898(IX) of 14 December 1954, the General Assembly tabled the International Criminal Tribunal project until such time as the project on a Draft Code of Offences against the Peace and Security of Mankind was finalized.78

By Resolution 177(II), paragraph (b), of 21 November 1947, the General Assembly requested the ILC to prepare a draft code of offences against the (p.43) peace and security of mankind, indicating clearly the place to be accorded to the Nuremberg Principles. At its first session the ILC appointed Mr Spiropoulos Special Rapporteur for the topic, and he presented his working paper to the ILC at its second session.79

The idea of a ‘code of offences against the peace and security of mankind’ has its roots in correspondence between Justice Biddle and President Truman at the conclusion of the trial before the Nuremberg Tribunal.80 In a report to President Truman of 9 November 1946, Justice Biddle suggested that the time had come to ‘set about drafting a code of international criminal law’. He also considered that this was an opportune moment for advancing the proposal that the UN ‘reaffirm the principles of the Nuremberg Charter in the context of a general codification of offences against the peace and security of mankind’. He believed such action would not only ‘perpetuate the vital principle that war of aggression is the supreme crime’ but also ‘afford an opportunity to strengthen the sanctions against the lesser violations of international law and to utilize the experience of Nuremberg in the development of those permanent procedures and institutions upon which the effective enforcement of international law ultimately depends’.

The ILC dealt briefly with the question of state responsibility in the context of the Draft Code, but Spiropoulos remarked that although the concept of the criminal responsibility of states had been much discussed in theory, there had been no relevant precedent in international practice. As a result, he concluded: ‘following international practice up to this time, and particularly in the view of the pronouncements of the Nuremberg Tribunal, the establishment of the criminal responsibility of states—at least for the time being—does not seem advisable.’81 It seems that according to the Draft Code, the responsibility of a state was equivalent to the individual responsibility of the members of the government.

The ILC submitted its approved text of a Draft Code to the General Assembly in 1954.82 However, the Code lacked a definition of aggression, and the General Assembly decided in Resolution 897(ΙΧ) of 4 December 1954 to postpone further consideration of the Draft Code until the Special Committee on the question of defining aggression had submitted its report.83 It was not until 1981 that the ILC reconsidered the Draft Code of 1954.84

The codification work relating to international criminal responsibility was, therefore, split between several separate committees dealing with its (p.44) substantive aspects (the Draft Code and the definition of aggression) and its enforcement aspects (the international criminal tribunal). Clearly these projects were linked, and arguably there was little point in dividing the tasks if the goal was to produce quickly an international criminal code and a statute for an international criminal court. Such a strategy may have been designed to ensure that states would not be placed in the position of making a final political decision on a legal product which none of them really desired. In the mid-1950s, few states were willing to subordinate their sovereignty to an international criminal tribunal, or to surrender their political and military leaders to be tried by such a tribunal, or to accept that one day their very state could be held criminally responsible.

5. The Apartheid Convention, 1973

The UN was concerned to promote the elimination of all forms of racial discrimination from its inception. By the 1970s international concern was growing over the armed struggle of the black South African majority against apartheid, and the repressive reactions of the white South Africans in power. In 1973 the International Convention on the Suppression and Punishment of the Crime of Apartheid was adopted by the UN.85 The statement that apartheid is a crime against humanity which appears in Article I is deduced from a number of international instruments and resolutions which preceded the Convention, and furnishes a good example of the evolution of international law in this sphere and in the realm of international criminal responsibility generally. Article 6(c) of the Nuremberg Charter includes in its definition of crimes against humanity ‘persecutions on…racial…grounds’. The 1948 Universal Declaration of Human Rights86 proclaims that all human beings are born free and equal in dignity and rights, and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour, or national origin.

Article 3 of the 1966 International Convention on the Elimination of All Forms of Racial Discrimination87 emphasizes that ‘states parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. The same year the General Assembly condemned as a crime against humanity the policies of apartheid as a whole.88 This formulation had earlier appeared in resolutions concerning the South-West African and Southern (p.45) Rhodesian questions.89 In the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,90 ‘inhuman acts resulting from the policy of apartheid’ are once again described as crimes against humanity. It is not specified in any of these international instruments which of its elements makes apartheid a crime against humanity. It seems to have evolved in tune with considerations of public policy and as a reflection of public outrage.

Article V of the Apartheid Convention provides that individuals accused of apartheid may be tried by an ‘international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction’. In 1980 the Ad Hoc Working Group of Experts on South Africa of the Commission on Human Rights commissioned M. Cherif Bassiouni to prepare a draft statute for such an international penal tribunal. This was duly prepared and accepted by the Working Group.91 In his report, Bassiouni argued that the principle of responsibility embodied in the Apartheid Convention was much too narrow under Article III and under international law, and should include inter alia state responsibility. Bassiouni maintained:

While International Criminal Law contemplates only the punishment of individuals, the responsibility of corporate entities and that of the state can be deemed to be a quasi-criminal responsibility for which fines and punitive damages are the appropriate remedies.92

It was also specified in the report that apartheid is a crime of state policy. Article V of the proposed ‘International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes’ provided that the Tribunal would be competent to investigate, prosecute, adjudicate, and punish any person or legal entity accused or guilty of the crimes listed.93 Article XXI, part 6, provided that a state was ‘responsible for any crime committed on its behalf, behest or benefit by a person in authority’. In addition, ‘conduct is attributed to a state if it is performed by persons or groups acting in their official capacity, who under the domestic law of that state possess the authority to make decisions for the state or any political subdivision thereof or possess the status of organs, agencies or instrumentalities of that state or a political subdivision thereof’.94 The failure of a state to fulfil its obligations under the Convention would constitute an ‘international offence’. Article XXI also made provision for the collective (p.46) responsibility of groups or organizations. Article XXIV dealt with penalties and specified that states could be liable to pay fines. The Commission on Human Rights circulated the draft to member states in 1981, but no further progress was made.

The Apartheid Convention has not proved to be an effective addition to the list of instruments dealing with racial non-discrimination. The main purpose of the Convention was probably to enable international jurisdiction to be extended to all states, thus opening up the possibility of bringing to trial the individuals responsible for creating and maintaining the apartheid regime, or even the government as an organization. Under Article X, the UN Commission on Human Rights is empowered to prepare, on the basis of reports from UN organs and from states parties, ‘a list of individuals, organizations, institutions and representatives of states who are alleged to be responsible for the crimes enumerated in Article II of the Convention’. Extensive lists of accused persons and organizations have been compiled, but the establishment of a Truth and Reconciliation Commission in South Africa has meant that any action under the Apartheid Convention is unlikely. This poor prognosis for the Apartheid Convention is underlined by the fact that it has been dropped from the Draft Code of Offences against the Peace and Security of Mankind.95

6. The Codification of State Responsibility

(a) The International Law Commission’s Mandate and Early Work

It is intrinsic in all social relations, including international relations, that the violation of a legally binding obligation creates legal responsibility.96 The rules on state responsibility are concerned with the incidence and consequences of violations of international law.

On 7 December 1953, the General Assembly adopted Resolution 799(VIII) requesting the ILC to undertake the codification of the principles of international law governing state responsibility. The text of the Resolution was as follows:

Request for the codification of the principles of international law governing state responsibility….

The General Assembly,

Considering that it is desirable for the maintenance and development of peaceful (p.47) relations between states that the principles of international law governing state responsibility be codified,

Noting that the ILC at its first session included the topic ‘state responsibility’ in its provisional list of topics of international law selected for codification,

Requests the ILC, as soon as it considers it advisable, to undertake the codification of the principles of international law governing state responsibility.

This text threw little light on the exact scope of the codification, but the ILC felt that the expression ‘state responsibility’ could not be literally and narrowly construed. At an early stage the ILC, in conformity with Article 18 of its Statute, had surveyed the whole field of international law with a view to selecting topics for codification. In the relevant memorandum submitted by the Secretary-General, it was stated that the codification of the rules on state responsibility ‘must take into account the problems which have arisen in connection with recent developments such as the question of the criminal responsibility of states as well as that of individuals acting on behalf of the state’.97 Such novel features of state responsibility were referred to only incidentally in considering the suitability of the topic for codification, but it was inevitable that the existence of these features would become a central problem when the topic was studied in depth. The ILC went so far as to say that it was necessary to do something more than ‘to codify’; traditional law needed to be changed and adapted so that it would reflect the profound transformations that had occurred in international law.98

The first Special Rapporteur on state responsibility, Mr Garcia-Amador, brought his first report before the ILC in 1956. Garcia-Amador considered the extent to which criminal responsibility under international law was segregated and distinct from civil responsibility. He was of the opinion that, particularly since the Second World War, the idea of international criminal responsibility had become so well defined and so widely acknowledged that it must be admitted as one of the consequences of the breach or non-observance of certain international obligations, and thus should not be ignored in the codification of state responsibility.99

In Garcia-Amador’s opinion, international law distinguished ‘merely wrongful’ acts from ‘punishable acts’.100 In speaking of punishable acts, he was referring to ‘crimes under international law’ committed by individuals who are organs of the state and acting as such, rather than international crimes committed by the states themselves. However, he may have seen in the punishment of the individual a form of responsibility of the state of which (p.48) the individual is an agent.101 He subsequently submitted to the ILC a draft limited to the question of state responsibility for injuries to aliens.

Between 1960 and 1962, in the Sixth Committee of the General Assembly, the delegations of the Soviet Union and other Socialist countries, and many developing countries, consistently criticized the Draft Articles drawn up by Garcia-Amador.102 They felt that the codification of state responsibility for violations of the fundamental principles of international law was an urgent matter, and they referred specifically to obligations in connection with the maintenance of international peace and security, aggression and other infringements of territorial integrity, independence and sovereignty of states, and the right of peoples to self-determination.

In response to these criticisms, the ILC set up a Sub-Committee on the codification of state responsibility.103 It was agreed that the codification should concern only the rules defining the conditions for the existence of an internationally wrongful act and its consequences (secondary rules), and not the rules laying down obligations the violation of which may be the cause of responsibility (primary rules). The Sub-Committee’s report recommended that the ILC ‘give priority to the definition of the general rules governing the international responsibility of the state’.104 Listed as one of the points to be considered in the programme of work proposed by the Sub-Committee was the ‘possible distinction between international wrongful acts involving merely a duty to make reparation and those involving the application of sanctions. Possible basis for such a distinction.’105 The ILC unanimously approved the Sub-Committee’s work, and appointed Roberto Ago as Special Rapporteur on state responsibility.

In 1973 the ILC began to prepare the Draft Articles on State Responsibility. Article 1, entitled ‘Responsibility of a State for its Internationally Wrongful Acts’, established that ‘[e]very internationally wrongful act of a state entails the international responsibility of that state’. This was designed to state a basic principle ‘capable of encompassing in itself all the various possible cases’.106 One such case would be ‘a distinct and more serious category of internationally wrongful acts, which might perhaps be described as international crimes’.107 In this context the term ‘sanction’ was used to ‘describe a measure which, although not necessarily involving the use of (p.49) force, is characterized—at least in part—by the fact that the purpose is to inflict punishment’.108

In 1976 Ago emphasized the growing tendency since the Second World War to single out among international obligations a restricted set of obligations to which a special regime of responsibility needed to be attached in order to safeguard the fundamental interests of the international community as a whole. He spoke of, on the one hand, a ‘heavy’, severe kind of international responsibility for violations of the basic principles of international law where the main emphasis and concern of the modern approach to the question of international responsibility should be placed and, on the other hand, a less severe kind of international responsibility for other breaches of international obligations which often result in agreed solutions and are to be seen in close relation to the question of dispute settlement.109 His proposed Draft Article 18 stated:110

  1. 2. The breach by a State of an international obligation established for the purpose of maintaining international peace and security, and in particular the breach by a State of the prohibition of any resort to the threat or use of force against the territorial integrity or political independence of another State, is an ‘international crime’.

  2. 3. The serious breach by a State of an international obligation established by a norm of general international law accepted and recognized as essential by the international community as a whole and having as its purpose:

    1. (a) respect for the principle of the equal rights of all peoples and of their right of self-determination; or

    2. (b) respect for human rights and fundamental freedoms for all, without distinction based on race, sex, language or religion; or

    3. (c) the conservation and the free enjoyment for everyone of a resource common to all mankind is also an ‘international crime’.

  3. 4. The breach by a State of any other international obligation is an ‘international delict’.

The Drafting Committee unanimously agreed to crystallize these ideas, with some alterations and changes in emphasis, in Draft Article 19,111 which reads as follows:

  1. 1. An act of a state which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.

  2. 2. 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.

  3. (p.50) 3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:

    1. (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;

    2. (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;

    3. (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

    4. (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or the seas.

  4. 4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.

The ILC completed the first reading of Part I of the Draft Articles on State Responsibility in 1980 and provisionally adopted thirty-five draft articles dealing with the origin of international responsibility.112 It decided to postpone consideration of the regime of responsibility under which a state guilty of an international crime would be placed until it began work on Part II of the Draft Articles.113

(b) The Method of Defining Crimes of State in Draft Article 19

The ILC had three options available to it when it came to choosing a method of designating which acts could be characterized as international crimes of state.114 An exhaustive list of those acts could be drawn up, or the criterion for determining such a list could merely be indicated, or an intermediate path could be followed. The method of drawing up an exhaustive list was discarded because it would not have permitted the definition of international crimes to be progressively adapted to the future evolution of international law, and would have involved the ILC in defining the content of the primary obligations the breach of which entailed state responsibility. Another less openly stated reason was that it was difficult to reach agreement on a complete list of international crimes. The method of indicating a general criterion (p.51) for identifying international crimes was also rejected, as it did not take sufficient account of the need to be able to determine easily whether at a given moment a certain act was an international crime. The ILC eventually adopted an intermediate path. It decided to take as a basic criterion that used in Article 53 of the Vienna Convention on the Law of Treaties115 relating to norms of jus cogens, and then added some concrete indications and examples in order to facilitate the determination of the acts in question.

The basic criterion appears in paragraph 2 of Article 19 and establishes that for the purposes of the Draft Articles, the violation of an international obligation is to be considered a wrongful act coming within the category of particularly serious internationally wrongful acts, or international crimes, and will as a result entail the special regime of responsibility indicated in the second part of the Draft Articles, if it can be established that the international community as a whole recognizes it as such. In the opinion of the ILC, the system of giving only a basic criterion for determining the obligations in question would encourage the crystallization of international practice and jurisprudence in the field, while at the same time being flexible enough not to be an obstacle to the development of the legal conscience of states.116

Paragraph 2 has two aspects. It also states that only a breach of an obligation ‘essential for the protection of fundamental interests of the international community’ will qualify as an international crime. This phrase injects the definition with an inductive element which complements the basic criterion. The international community as a whole is responsible for judging whether the obligation is essential and, accordingly, whether its breach is of a criminal nature.

Paragraph 3 indicates the areas of international law more likely to involve obligations whose breach is recognized by the international community as a whole as a crime. These are areas containing rules aimed at: the maintenance of international peace and security; the safeguard of the right of self-determination of peoples; the safeguard of the human being; and the safeguard and preservation of the human environment. Examples are supplied for each of the areas mentioned of breaches currently recognized as crimes by the international community as a whole. These are aggression, the establishment or maintenance by force of colonial domination, slavery, genocide, apartheid, and massive pollution of the atmosphere or the seas.

The breaches mentioned in paragraph 3 do not constitute an exhaustive list of international crimes. This appears clearly from the use of inter alia in the text of the paragraph, and was specifically stressed in the commentary which states that the ILC, in giving examples of international crimes, in no way intended to imply that international law then in force recognized no other (p.52) crimes, or that it might not recognize them in the future.117 The Special Rapporteur recognized that the list was already dated, and that crimes such as colonialism, slavery, and apartheid might soon disappear. On the other hand, the crimes referred to in sub-paragraph (d), such as depriving human beings of their environment, taking away their sources of supply, and causing climatic changes, could be the crimes of the future. In addition there are potentially many acts that qualify for inclusion in sub-paragraph (c), for example the massacre of prisoners of war, the deportation of populations, and crimes referred to in the conventions on humanitarian law.

In order to determine whether at a given moment other acts are to be regarded as international crimes for the purposes of the Draft Articles, the basic criterion set out in paragraph 2 must be applied: it must be established whether the international community as a whole recognizes them as particularly serious wrongful acts entailing a special regime of responsibility. The list of examples in paragraph 3 is not, in a true sense, a part of the definition, and it was perhaps added to ensure that the definition would at least extend to the wrongful acts mentioned.

(c) Critique of Draft Article 19118

Criticisms of Article 19 have been concerned as much with the concept of international crimes embodied in the Article as with its precise wording. Nevertheless a few comments may be made regarding the suitability of Article 19 as an international criminal law framework.

First, paragraph 2 is circular and, when read together with paragraph 3, the definition of state crime could be said to amount to no more than the following: if an act ‘is so serious that the international community as a whole stigmatizes that act as criminal, then it is to be accounted a crime’.119

Second, while paragraph 2 is concerned with the importance of international norms, paragraph 3 does not frame fundamentality in terms of those norms, but in terms of seriousness. This leads to a confusion of the gravity of the norm with the gravity of the breach.

Third, paragraph 3 refers to unspecified rules of international law in force and does not explain fully what role these rules play in applying the general definition in paragraph 2. The phrase ‘may result’ also lacks specificity.120

(p.53) Fourth, the non-exhaustive list of vague terms in paragraph 3 fails to illuminate the substantive nature of the crimes mentioned, and it is questionable whether it is appropriate in the first place to list examples.121 The individual sub-paragraphs are rife with the term ‘such as’, and with qualifying adjectives like ‘essential’, ‘widespread’, and ‘massive’. Arguably this language is not specific enough for defining the highest level of responsibility, particularly as it may not be a court which makes the determination.122 Sub-paragraph (a) is perhaps too broad and could be limited to prohibiting aggression, unless the dividing line between lawful and unlawful uses of force becomes clearer. The prohibition of forcible colonial domination in sub-paragraph (b) is becoming increasingly out of date and could possibly be replaced by more current obligations for safeguarding the right of self-determination. Sub-paragraph (c) deals appropriately with slavery, genocide, and apartheid, and could include torture as state policy,123 but it may not need to go beyond this given the rapid developments and emergence of multilateral treaties in the human rights field. With regard to paragraph (d), it cannot be determined from Article 19 whether a given case of pollution of the seas, for example, constitutes an international crime or merely a public-law violation which may be best dealt with under the treaties and agencies dealing with such problems. A possible candidate for inclusion in a separate sub-paragraph of paragraph 3 is state-sponsored terrorism, and the use of nuclear weapons could also be listed. Finally, there is no mention of the mental element for a crime, but this is perhaps an aspect of the primary rule.

In general, it seems that the ILC took care not to make the definition of crimes too broad, while allowing scope for future developments, but the end result proved to be less than satisfactory. It is notable that Draft Article 19, as adopted by the Commission, differs significantly from Ago’s original proposal which was broader in its scope yet more specific in its content. Crawford has commented that Ago’s proposal ‘is better read as an attempt to express the notion of obligations erga omnes’124 and he points to the fact that the term ‘international crime’ appeared in inverted commas. It would seem that the members of the ILC were keen to go a step further and attempt to describe a genuine concept of crime.

(p.54) (d) The International Law Commission’s 1998 Position on Draft Article 19

At its forty-ninth session in 1997, the ILC appointed James Crawford as Special Rapporteur on the topic of state responsibility and established a Working Group to address matters concerning the second reading of the topic.125 The ILC’s aim is to complete the second reading by the end of the quinquennium (2001).

In his First Report on State Responsibility,126 Crawford revisited the question of a distinction between criminal and delictual responsibility. He concluded, on the basis of the comments received by governments,127 that Article 19 was generally viewed as an exercise of development rather than codification, that the terminology of crimes was widely felt to be potentially misleading, and that the definition of state crimes in Draft Article 19 needed further clarification.128

Crawford considered various possible future approaches to the concept of state criminal responsibility in the Draft Articles.129 These included maintaining the status quo; replacing the concept of state crime by a new concept of ‘exceptionally serious wrongful acts’; elaborating a full-scale punitive regime of state criminal responsibility; rejecting the concept of state crime completely, both within the Draft Articles and in international law; and simply excluding the concept from the ambit of the Draft Articles.130 Crawford favoured the fifth option, believing that the subject required separate treatment.131 This would not preclude the development of the concepts of obligations erga omnes and jus cogens in the context of the second reading of Part II in particular.132 It was also emphasized by Crawford that his recommendation was without prejudice ‘to the notion of “international crimes of States” and its possible future development, whether as a separate topic for the Commission, or through State practice and the practice of the competent international organizations’.133

7. Conclusion

The aim of this chapter has been to trace attempts, successful or otherwise, to develop and codify the law relating to international criminal responsibility which touched upon, or dealt in detail with, the concept of state criminality. The adoption by the ILC of a distinction between crimes and delicts is clearly (p.55) a landmark but it must be treated in its historical context. It is a significant, but somewhat limited,134 aspect of the concept of state criminality’s journey through history and into present-day international law. Further aspects of this journey will be considered once the concept’s intellectual feasibility and juridical status in contemporary international law have been established.

Notes:

(1) For a summary of some of the criticisms of the Nuremberg Trial see K. R. Chaney, ‘Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials’, in D. O. Friedrichs, State Crime, ii. (1998), 70–81. For criticisms of the Tokyo Trial see e.g. R. H. Minear, Victor’s Justice: The Tokyo War Crimes Trial (1971); B. V. A. Röling and A. Casesse, The Tokyo Trial and Beyond: Reflections of a Peacemonger (1993).

(2) See H. Ehard (Minister-President of Bavaria), ‘The Nuremberg Trial Against the Major War Criminals and International Law’, (1949) 43 AJIL 223, 243: ‘In our evaluation of the Nuremberg trial we should not be misled by the unworthy wish for a milder judgment of the crime, but only by the desire for an ever-increased perfection of the law and the longing for the final and universal victory of law over might’, ibid. 225. See also H. Kraus, ‘The Nuremberg Trial of the Major War Criminals: Reflections After Seventeen Years’, (1963–4) 13 De Paul Law Rev. 233; C Haensel, ‘The Nuremberg Trial Revisited’, ibid. 248; O. Kranzbuhler, ‘Nuremberg Eighteen Years Afterward’, (1964–5) 14 De Paul Law Rev. 333; W. E. Benton and G. Grimm, Nuremberg: German Views of the War Trials (1955).

(3) See e.g. B. F. Smith, Reaching Judgment at Nuremberg (1977).

(4) See R. J. Phillimore, ‘An International Criminal Court and the Resolutions of the Commit tee of Jurists’, (1922–3) BYIL 79.

(5) Historical Survey of the Question of International Criminal Jurisdiction (1949), 12. See also Report on the Question of International Criminal Jurisdiction by Alfaro, RJ, A/CN.4/15, (1950) YrbkILC, 2, 3–4.

(6) See H. H. L. Bellot, ‘Permanent International Criminal Court’, in ILA, Report of the Thirty First Conference, Buenos Aires, 24–30 Aug. 1922, 63–86.

(7) Bellot, ‘Statute for the Permanent International Criminal Court’, in ILA, Report of the Thirty Third Conference, Stockholm, 8–13 Sept. 1924, 75–111.

(8) ‘Report of the Permanent International Criminal Court Committee’, in ILA, Report of the Thirty-Fourth Conference, Vienna, 5–11 Aug. 1926, 106–225 and 279–309.

(9) Ibid. 109.

(10) Union interparlementaire, Compie rendu de la XXIIIe Confèrence, Washington, 1925, 46–50; full text of resolution and annex in Historical Survey of the Question of International Criminal Jurisdiction, 70; see also Report by Alfaro, 4.

(11) Premier congrès international de droit pènai: Actes du congrès, 634. Full text of resolution in Historical Survey of the Question of International CriminalJurisdiction, app. 6; and see Report by Alfaro, 4–5.

(12) Full text in V. V. Pella, La Guerre-crime et les criminels de guerre (1946), 129–44.

(13) See Revue Internationale de Droit Pènal (1948), vol. 19.

(14) See Nouvelles Études Pénales (1993), vol. 10, and Revue Internationale de Droit Pénal (1996), vol. 67.

(15) Convention for the Prevention and Punishment of Terrorism, (1935–7) 7 International Legislation, 862.

(16) Convention for the Creation of an International Criminal Court, ibid. 878.

(17) Ibid. 862.

(18) Annuaire de l’ Institut de Droit International: Session de Bruxelles, Donnedieu de Vabres, Rapporteur, (1948) vol. 42, 222–38.

(19) Annuaire de l’Institut de Droit International: Session de Sienne, (1952) vol. 44(1), 361.

(20) Annuaire de l’Institut de Droit International: Session de Sienne, (1952) vol. 44(1), 368.

(21) Ibid. 420.

(22) Ibid. 368, n. 1.

(23) ‘Terrorisme’, in Actes de la V e Conference Internationale pour l’unification du droit pénal (Paris, 1935), 48–56; see also R. Lemkin, ‘Genocide as a Crime under International Law’, (1947) 41 AJIL 145–51.

(24) UN Official Records of the First Part of the First Session of the General Assembly, Sixth Committee, Legal Questions, Summary Records of Meetings, 2 Nov.-13 Dec. 1946, 22nd Meet ing, 102.

(25) R. Lemkin, Axis Rule in Occupied Europe (1944), 92–3.

(26) Trial of the Major War Criminals Before the IMT, Nuremberg, 14 Nov.-1 Oct. 1946, Official Documents (1947), vol. 1, 43–4.

(27) Law Reports of Trials of War Criminals, United Nations War Crimes Commission (1947–9), vol. 6, 48; vol. 7, 7 and 24; vol. 13, 2–3, 6, 112–14; vol.15, 122–3.

(28) (1947–8) YrbkUN, 595.

(29) ECOSOC Resolution 117 (VI).

(30) See Report of the Committee and the Draft Convention drawn up by the Committee, E/794, 24 May 1948, and E/794/Corr. 1, 10 June 1948; (1947–8) YrbkUN, 597–9.

(31) ECOSOC Resolution 153 (VII).

(32) Resolution 26oA(III), 9 Dec. 1948.

(33) 78 UNTS 277; see Appendix 1 below.

(34) See (1948–9) YrbkUN, 957.

(35) N. Robinson, The Genocide Convention: A Commentary (1960), 31–2.

(36) See Advisory Opinion in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, (1951) ICJ Reports 15, 23, in which the Court refers to the ‘universal character both of the condemnation of genocide and of the co-operation required “in order to liberate mankind from such an odious scourge”’, and Judgment on Preliminary Objections in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), (1996) ICJ Reports, para. 31, in which ‘[t]he Court notes that the obligation each State…has to prevent and to punish the crime of genocide is not territorially limited by the Convention’.

(37) Case Concerning the Application of the Genocide Convention, Order on Provisional Measures, (1993) ICJ Reports 3, Judgment on Preliminary Objections, (1996) ICJ Reports. See further Chapter 17 below.

(38) See Official Records of the Third Session of the General Assembly, Part I, Sixth Commit tee, Legal Questions, Summary Records of Meetings, 21 Sept.-10 Dec. 1948, (hereinafter Summary Records); (1948–9) YrbkUN, 953–7.

(39) A/C.6/236, 16 Oct. 1948.

(40) 92nd Meeting, Summary Records, 302.

(41) 96th Meeting, ibid. 355.

(42) A/C.6/236/Corr.i; see 99th and 100th Meetings, Summary Records, 392–4.

(43) 104th Meeting, Summary Records, 447.

(44) A/C.6/258.

(45) A/C.6/260.

(46) (1948–9) YrbkUN, 955–6.

(47) 93rd Meeting, Summary Records, 319–20.

(48) 103rd Meeting, ibid. 440; see also Fitzmaurice, 104th Meeting, ibid. 444.

(49) 103rd Meeting, ibid. 431.

(50) Ibid. 436.

(51) Quoted in M. O. Hudson, ‘The Twenty-Ninth Year of the World Court’, (1951) 45 AJIL 1, 34.

(52) Quoted in Hudson, ‘The Twenty-Ninth Year of the World Court’, (1951) 45 AJIL 1, 34, n. 52.

(53) ‘Genocide: A Commentary on the Convention’, (1948–9) Yale Law Journal, 58, 1142.

(54) J. L. Kunz, ‘The United Nations Convention on Genocide’, (1949) 43 AJIL 738.

(55) Ibid. 745.

(56) J. Graven, ‘Les Crimes contre l’humanité’, (1950–1) 76 Hague Recueil, 429, 507–11.

(57) Hudson, ‘The Twenty-Ninth Year of the World Court’, (1951) 45 AJIL 1, 33–4.

(58) M. Sibert, Traité de droit international public: le droit de la paix (1951), i. 446.

(59) The Genocide Convention, 99–106.

(60) Ibid. 104, and see further Chapter 17 below.

(61) M. N. Shaw, ‘Genocide and International Law’, in Y. Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), 818.

(62) Graven, ‘Les Crimes contre l’humanité’, 511.

(64) E/CN.4/Sub.2/416, 4 July 1978, 38.

(65) E/CN.4/Sub.2/1985/6, 2 July 1985.

(66) Ibid. 26.

(67) See Chapter 17 below for an analysis of state responsibility under the Genocide Conven tion in contemporary international law.

(68) GA Resolution 174(II), 17 Nov. 1947.

(69) Article 2, Statute of the ILC.

(70) Article 15, Statute of the ILC.

(71) See Report of the ILC Covering its Second Session, (1950) YrbkILC 2, 364, 378–9.

(72) A/CN.4/15, (1950) YrbkILC 2, 17.

(73) A/CN.4/20, (1950) YrbkILC 2, 18.

(74) Draft Statute for an International Criminal Court (Annex to the Report of the Committee on International Criminal Jurisdiction, 1–31 Aug. 1951), UN Doc A/2136 (1952), 7 GAOR Suppl. No. 11, 21.

(75) Revised Draft Statute for an International Criminal Court (Annex to the Report of the 1953 Committee on International Criminal Jurisdiction, 27 July-20 Aug. 1953), UN Doc A/2645, 9 GAOR Suppl. No. 12, 23.

(76) Report of the Committee on International Criminal Jurisdiction (n. 74 above), 10. A pro posal was also made to the effect that the court should be competent to decide the civil respon sibility of an accused for the commission of criminal acts and award damages. A state could then be held jointly liable for the payment of damages. Reference was made to the lacuna in the system of war crimes trials after the Second World War in so far as there had been no possibility of obtaining a judicial decision regarding the responsibility of Germany to pay damages to victims, ibid. 11.

(77) Report of the 1953 Committee on International Criminal Jurisdiction (n. 75 above), 13.

(78) The Rome Statute of the International Criminal Court was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on 17 July 1998, A/CONF. 183/9, (1998) 37 ILM 999.

(79) A/CN.4/25, (1950) YrbkILC 2, 253.

(80) Department of State Bulletin, 15 (386), 24 Nov. 1946, 954–7.

(81) A/CN.4/25, (1950) YrbkILC 2, 261. See also the debate in the Commission, ibid. vol. 1, 105–6.

(82) For text of draft see (1954) YrbkILC 2, 151.

(83) A definition of aggression was adopted by a General Assembly consensus resolution in 1974 (Resolution 3314 (XXIX), 14 Dec. 1974).

(84) New Draft Codes were elaborated in 1991 and 1996. For a more complete discussion of the Draft Codes see Chapter 12 below.

(85) GA Resolution 3068(XXVIII), 30 Nov. 1973; repr. in (1974) 13 ILM 50.

(86) GA Resolution 217A(III), 10 Dec. 1948.

(87) UKTS 77 (1969).

(88) GA Resolution 2202A(XXI), 16 Dec. 1966.

(89) GA Resolution 2074(XX), 17 Dec. 1965.

(90) GA Resolution 2391(XXIII), 9 Dec. 1968; (1969) 8 ILM 68.

(91) Report of M. C. Bassiouni to the Ad Hoc Working Group of Experts for the Commission on Human Rights, UN Doc E/CN/4/1426, (1981), reprinted in part as M. C. Bassiouni and D. H. Derby, ‘Final Report on the Establishment of an International Criminal Court for the Imple mentation of the Apartheid Convention and Other Relevant International Instruments’, (1981) 9 Hofstra Law Rev 523.

(92) Ibid. 540.

(93) Ibid. 548 (emphasis added).

(94) Ibid. 562–3.

(95) See Chapter 12 below, and compare the Draft Code of 1991 with those of 1995 and 1996. Article 7(1)(j) of the Rome Statute of the International Criminal Court, A/CONF. 183/9, recasts the crime of apartheid as a crime against humanity.

(96) See I. Brownlie, Principles of Public International Law, 4th edn. (1990), 432 ff.

(97) A/CN.4/1/Rev. 1, Survey of International Law in Relation to the Work of Codification of the ILC (1949), 57.

(98) See Report on International Responsibility by F. V. Garcia-Amador, A/CN.4/96; (1956) YrbkILC, 2, 173, 176.

(99) Ibid. 182–3. See also the debate in the Commission (General Discussion on State Respon sibility), (1956) YrbkILC 1, 228–48, esp. 239–45.

(101) See further Chapter 12 below, s. 5.

(102) See e.g. speeches by the delegations of the Soviet Union (A/C.6/SR.651, paras. 9–10 and SR. 657, para. 31; A/C.6/SR.717, para. 36); Romania (SR. 653, paras. 9–10); Hungary (SR. 654, paras. 12–13.); see also J. H. H. Weiler, A. Cassese, and M. Spinedi (eds.), Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989), 12–13.

(103) (1962) YrbkILC 2, 188–91.

(104) Report by R. Ago, Chairman of the Sub-Committee on State Responsibility, A/CN.4/152; (1963) YrbkILC 2, 227, 228.

(106) Report of the ILC on the Work of its Twenty-Fifth Session, A/CN.4/272; (1973) YrbkILC 2, 155, 172.

(107) Ibid. 172.

(108) Ibid. 175.

(109) See Fifth Report on State Responsibility by Roberto Ago, Special Rapporteur, A/CN.4/291 and Add. 1 and 2; (1976) YrbkILC vol. 2, pt. 1, 3.

(110) Ibid. 54.

(111) (1976) YrbkILC, vol. 2, pt. 2, 95–6.

(112) (1980) YrbkILC, vol. 2, pt. 2, 30–4.

(113) Between 1980 and 1996, Willem Riphagen (Special Rapporteur, 1980–6) and Gaetano Arangio-Ruiz (Special Rapporteur, 1987–96) produced reports dealing with Parts II and III of the Draft Articles. The ILC completed the first reading of Parts II and III in 1996. See Report of the ILC on the Work of its Forty-Eighth Session, GAOR, Fifty-First Session (1996), Suppl. No. 10 (A/51/10), 125–51. See further Chapter 13 below, s. 5.

(114) See Commentary to Draft Article 19, (1976) YrbkILC, vol. 2, pt. 2, 119–20.

(115) See Chapter 5 below, s. 2.

(116) (1976) YrbkILC, vol. 2, pt. 2, 119.

(117) (1976) YrbkILC, vol. 2, pt. 2, 120.

(118) See esp. First Report on State Responsibility by James Crawford, Special Rapporteur, A/CN.4/49o/Add. 1, 24 Apr. 1998, paras. 46–50, and Report of the ILC on the Work of its Fiftieth Session, GAOR, Fifty-Third session (1998), Suppl. No. 10 (A/53/10), paras. 202–331.

(119) Ibid. para. 50. However, the definition of crimes is no more circular than the definition of jus cogens in Article 53 of the Vienna Convention on the Law of Treaties, and it has been argued by G. Abi-Saab, ‘The Uses of Article 19’, (1999) EJIL 10, no. 2, 339, 341, that Article 19 is an improvement on Article 53 as the cause rather than the effect is at the basis of the definition.

(120) ‘First Report on State Responsibility’ (n. 118 above), para. 49.

(121) Cf. Abi-Saab, ‘The Uses of Article 19’, who states that ‘the examples were probably pro vided in order to demonstrate that the category is not moot or purely hypothetical and that sev eral of its species are evident and recognizable in international practice’.

(122) See further Chapter 15 below.

(123) R. H. Higgins queries its omission in Problems and Process: International Law and How We Use It (1994), 168.

(124) ‘First Report on State Responsibility’ (n. 118 above), para. 51, n. 33.

(125) Report of the ILC on the Work of its Fiftieth Session, GAOR, Fifty-Third session (1998), Suppl. No. 10 (A/53/10), 111.

(126) A/CN.4/490 and Adds. 1–3.

(127) Crawford recognized that these comments could not be regarded as representative of the views of the international community as a whole.

(128) ‘First Report on State Responsibility’ (n. 118 above), paras. 52–60.

(129) A/CN.4/490/Add. 3, 11 May 1998, paras. 76–101.

(130) Ibid, paras. 76–99.

(131) Ibid. para. 100.

(132) Ibid, paras. 87 and 101.

(133) Ibid. para. 101.

(134) The reference here is to the inherent limitations of Article 19 which have been discussed above, to the limited remit of the Draft Articles on State Responsibility, and to the limited chance of survival of the concept of state criminality in the final Draft. On these latter two aspects see also Chapter 13 below, s. 5, and Chapter 16 below, s. 5.