The elements of state responsibility

The paper seeks to throw light on the concept of state responsibility under public international law. It deals with the elements of state responsibility, the elements of international responsibility and the relationship between the state and indicidual responsibility under international law. It also explains the distinction between the commission and the failure to prevent or punish.

Introduction

The law of State responsibility is the chapter of international law that concerns the breach by a State of one or more of its international obligations. In international law, responsibility is the corollary of obligation; every breach by a subject of international law of its international obligations entails its international responsibility. The law of State responsibility defines when an international obligation is to be held to have been breached, as well as the consequences of that breach, including which States are entitled to react, and the permissible means of that reaction.

Unlike national laws, wherein different rules often apply according to the source of the obligation breached (e.g., contract law, tort law, criminal law), international law does not concern itself with the source of the obligation that is breached; in principle (and unless otherwise specifically provided) the same rules apply to the breach of an obligation whether the source of the obligation is a treaty, customary international law, a unilateral declaration, or the judgment of an international court.

In August 2001 the International Law Commission [1] completed its Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project on which it had been working for more than forty years. The aim of the articles is to codify the generally applicable rules of State responsibility.

It should be noted that the ARSIWA are envisaged as laying down general rules that apply in default of any more specific rule applicable to the obligation in question. In some cases, special rules may apply to an obligation (either as a result of the formulation of the rule itself, or because the obligation in question forms part of a special regime); for instance, it is possible that a particular obligation may be subject to a special rule requiring fault or damage before there is held to be a breach, or it may be that the category of States entitled to react is wider than the default position under the ARSIWA. This is the principle of lex specialis (to the extent that special rules are applicable and inconsistent with the rules contained in the ARSIWA, the special rules will prevail and displace the more general rules).

The Elements of State Responsibility

The starting point of the articles is that "every internationally wrongful act of a State entails the international responsibility of that State" [2] . The act or omission of a State will qualify as an "internationally wrongful act" if two conditions are met. First, the act or omission must constitute a breach of an international obligation, or, as the articles put it, must be "not in conformity with what is required" by the international obligation [3] . This implies that the obligation in question must be binding on the State at the time of the conduct, which is said to constitute a breach. Second, the act or omission must be "attributable" to the State.

The general rule is that a State is not responsible for the acts of private individuals. The State is of course an abstract entity, unable to accomplish any physical act itself. Just as in domestic law corporations act through their officers and agents, so in international law the State normally acts through its organs and officials. The first, and clearest, case of attribution is that of the organs of the State (e.g., police officers, the army) whose acts are attributable to the State even in instances where they contravene their instructions, or exceed their authority as a matter of national law [4] . No distinction is made based on the level of the particular organ in the organizational hierarchy of the State; State responsibility can arise from the actions of a local policeman, just as it can from the actions of the highest officials, for instance a head of state or a foreign minister. Nor is any distinction made upon the basis of the separation of powers; State responsibility may arise from acts or omissions of the legislature and the judiciary, although by the nature of things it is more common that an internationally wrongful act is the consequence of an act or acts of the executive. Second, the rules of attribution cover situations in which individuals, not otherwise State organs, are exercising "elements of governmental authority" at the time that they act [5] . Third, acts of private individuals are attributable to the State if those individuals are acting on the instructions of the State, or under its effective direction or control [6] . Fourth, in exceptional circumstances in which there is an absence or default of governmental authority, the acts of private individuals may be attributable to the State if those individuals, in effect, step into the breach and perform necessary governmental functions [7] .

With regard to certain obligations, a State may incur responsibility even though actions have been carried out by private individuals, because the essence of the obligation was to ensure that a given result occurred. For instance, if a foreign embassy is overrun by a mob, or harm is done to diplomatic staff by private individuals, as occurred with the U.S. embassy in Tehran during the Iranian revolution of 1979 to 1980, a State may incur responsibility, even if those individuals act on their own initiative. Equally, under Article V of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the obligation of a State to punish those responsible for genocide earlier on related to genocide may be breached in instances in which a State fails to punish any person responsible for the genocide, "whether they are constitutionally responsible rulers, public officials, or private individuals." There is probably a similar rule in general international law in relation to crimes against humanity. In both cases, the basis of responsibility here is not the attribution to the State of the acts of the individuals; it is the failure by the State as an entity to comply with the obligations of prevention and prosecution incumbent on it.

A somewhat anomalous instance of attribution is that covered by Article 10. As was noted above, in the normal course of events, a State is not responsible for the acts of private individuals; a fortiori, it is not responsible for the acts of insurrectional movements, because, by definition, an insurrectional group acts in opposition to the established state structures and its organization is distinct from the government of the State to which it is opposed. However, Article 10(1) provides that "the conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law." Article 10(2) provides for a similar rule with respect to an insurrectional movement that succeeds in establishing a new State within the territory of a pre-existing State. The effect of the rule is to attribute retrospectively the conduct of the movement in question to the State. In the case of a successful insurrectional movement, the acts of the movement are attributed to the State as if the movement had been the government at the time of its acts, even though, if the insurrection had failed, no attribution would be possible. In the case of the establishment of a new State, the effect is even more drastic because acts are attributed to the State retrospectively to a time when it did not yet definitively exist.

Except in this case, there is no established machinery for attributing collective responsibility (e.g., for war crimes, genocide, or crimes against humanity) to an armed opposition group. In such circumstances individual responsibility is the only possibility at the international level of ensuring a degree of responsibility for criminal acts.

Certain circumstances may serve to preclude the wrongfulness of a breach of international law by a State, in much the same way that defenses and excuses work in national criminal law. In international law these are termed "circumstances precluding wrongfulness" [8] . For instance, the consent of the state to which the obligation was owed will prevent the breach being wrongful, as will, under certain restrictively defined conditions, force majeure, distress, and necessity. Finally, a State taking countermeasures (defined as the nonperformance of an obligation in response to a prior wrongful act of another State, in order to induce that State to comply with its obligations) may mean that what would otherwise be a breach of an international obligation is not in fact wrongful. However, quite apart from the strict procedural conditions with which the taking of countermeasures is hedged, it should be noted that certain obligations may not be the object of countermeasures. Among these are the obligation to refrain from the threat or use of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals under peremptory norms of general international law (jus cogens). This last limitation in fact applies generally to circumstances precluding wrongfulness: it is never possible to plead that a breach of a peremptory norm was justified.

The Content of International Responsibility

Upon the commission of an internationally wrongful act, new legal obligations come into existence for the State responsible for that act. First, that State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Reparation may take one of three forms: restitution, compensation, or satisfaction (or some combination of them). Traditionally, restitution has played the primary role, although in instances in which restitution is materially impossible, the injured State may have to content itself with compensation or satisfaction. Second, the responsible State is under an obligation to conclude the internationally wrongful act if it is continuing, and in an appropriate case, may be required to make assurances and guarantees of non-repetition.

The Articles mark a decisive step away from the traditional bilateralism of international law and toward what has been called "community interest" in the provisions dealing with the States that are entitled to react to the breach of an internationally wrongful act. Traditionally, only the State that was directly injured, or in some way "targeted," by the breach of an international obligation could demand reparation. In addition, although any state could take unfriendly measures that did not constitute the breach of an international obligation owed to the State at which they were directed (retorsion), the taking of countermeasures was commonly understood as being limited to these "injured States."

The first major move away from the strict bilateralism of international law was the judgment of the International Court of Justice in the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) case. In that case, the court stated:

[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes [9] .

In the next paragraph, the court went on to state that "such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination." This distinction between obligations of which only the injured State may complain, and those in the observance of which a wider community of States have an interest, is reflected in Articles 42 and 48, although it should be stressed that the latter provision is undoubtedly one of the clearest examples of progressive development to be found within the articles. It seems indisputable that all other States have an interest in the observance by other States (and individuals) of the prohibitions of genocide and crimes against humanity. However, the exact implications of this interest require further working out in the light of State practice.

The Relationship between State Responsibility and Individual Responsibility

The relationship between State responsibility and individual responsibility has until recently been a neglected issue, principally due to the late development of international individual criminal responsibility.

In 1947 the International Military Tribunal at Nuremberg stated 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" [10] . This statement says much about perceptions of the international legal system in the immediate aftermath of World War II; however, insofar as it seems to assert that observance of the rules of international law prohibiting atrocities can only be achieved through the prosecution of individuals, the assertion no longer holds true.

During the 1990s a number of inter-State cases alleging State responsibility for violations of the international rules concerned with the outlawing of atrocities were brought before the International Court of Justice. Some of these cases, in particular those between the States that had emerged after the disintegration of the Socialist Federal Republic of Yugoslavia (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro], 1993 onward; Croatia v. Yugoslavia, 1999 onward), concerned situations involving allegations of genocide and crimes against humanity that were concurrently the subject of investigation and prosecution of individuals before the International Criminal Tribunal for the Former Yugoslavia (ICTY). Other cases [11] alleged, among other things, violations of the 1948 UN Genocide Convention, serious violations of human rights, and war crimes that had not been the subject of international prosecution. At the preliminary objections stage of the case (mentioned above) between Bosnia and Serbia-Montenegro, the respondents argued for a restrictive interpretation of the jurisdictional provision contained in Article IX of the 1948 UN Genocide Convention. Article IX provides as follows:

Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Serbia-Montenegro argued that the provision only conferred jurisdiction on the court in relation to responsibility for failure to comply with the obligations to prevent and punish genocide, as contained in Articles V, VI, and VII of the convention, and not to State responsibility for violations of the substantive prohibition of genocide contained in Article III. Accordingly, it was argued, as the jurisdiction of the court is based on consent, the court had no jurisdiction in relation to the allegations made by Bosnia and Herzegovina of violations of the prohibition of genocide by individuals whose acts were attributable to Serbia-Montenegro.

The court dealt with the point briefly, observing:

[T]he reference in Article IX to "the responsibility of a State for genocide or for any of the other acts enumerated in Article III," does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by "rulers" or "public officials" [12] .

Accordingly, it held, a dispute existed between the parties on this point, as well as on the "the facts of the case, their imputability, and the applicability to them of the provisions of the Genocide Convention," and was sufficient to its jurisdiction [13] . Two points bear emphasizing. First, the argument of Serbia-Montenegro did not have as a necessary premise that State responsibility for actual acts of genocide attributable to a State does not exist; rather, the argument was that State responsibility of this type did not fall within Article IX. Second, the decision of the court at the preliminary objections stage of the case did not definitively decide whether breach of the 1948 UN Genocide Convention by an individual necessarily involves State responsibility if the relevant acts are attributable to a State, as the only hurdle that had to be surmounted was whether there was a dispute between the parties as to the interpretation or application of the convention. However, the tone of the court's judgment seems to suggest that State responsibility does arise in these circumstances, and this would be consistent with general principle.

Conversely, the ICTY has made reference to State responsibility in elucidating the law relevant to the international criminal responsibility of individuals. In the Furundzija case the Trial Chamber held that the international legal norms prohibiting torture arising from human rights law and international humanitarian law "impose obligations upon States and other entities in an armed conflict, but first and foremost address themselves to the acts of individuals, in particular to State officials or more generally, to officials of a party to the conflict or else to individuals acting at the instigation or with the consent or acquiescence of a party to the conflict" [14] . As a consequence,

Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility [15] .

It is therefore now generally accepted that a single act can give rise to "two distinct types of responsibility coming under mutually autonomous legal regimes" [16] . The ILC intentionally left the question of the interplay of the two bodies of law open for future development, inserting a saving clause as Article 58, ARSIWA, which reads, "These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State." Similarly, the Rome Statute of the International Criminal Court (ICC) provides in its Article 25(4) that "[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law."

However, although the rules constituting the general-framework of State responsibility and international criminal responsibility may constitute distinct bodies of law, there are inevitably certain overlaps or points of contact between the two systems due to the fact that at the root of both are the same norms of substantive international law, that is, those prohibiting anyone from committing genocide, crimes against humanity, and so on.

Most obviously, for instance, it is clear that an individual cannot be found guilty of genocide if he did not have the "specific intent" to "destroy in whole or part, a national, ethnical, racial, or religious group, as such," required by Article II of the 1948 Genocide Convention. Equally, in seeking to establish State responsibility for genocide, it seems clear that at least one person, if not more, whose acts are attributable to the State should have the requisite specific intent. In this sense, the 1948 Genocide Convention operates as a lex specialis in relation to the generally applicable rules of international law, in which culpa or intention is not generally required.

Second, although the definition of genocide is not expressed in such terms, the logistical and organizational structures necessary for the commission of the crime inevitably involve State or para-statal structures. A person who murders a single person on the basis of the national, ethnic, racial, or religious group to which that person belongs does not commit genocide, even though it may be that he would murder all of the members of the group if he could, and thus arguably has the required specific intent. A certain amount of concertation is necessary, and there is a certain threshold of scale both for genocide and crimes against humanity (of which, ultimately, genocide is a species).

In relation to crimes against humanity, Article 3 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) requires that the acts have been committed as part of "a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds," whereas Article 5 of the Statute of the ICTY, which only requires that the acts have been committed "in armed conflict, whether international or internal in character, and directed against any civilian population" has been interpreted by the ICTY as requiring that there be a widespread or systematic attack. In similar fashion, Article 7 of the Rome Statute of the ICC imposes the slightly different requirement of "a widespread and systematic attack directed against any civilian population" in its definition of crimes against humanity. As with genocide, the requirement of "a widespread or systematic attack" implies an element of scale or of planning, and will in most cases involve structures and apparatus that will normally only be disposed of by a State or by an armed opposition group, although proof of a plan or policy is not a necessary part of the definition of the crime.

It was for reasons of this kind that the ILC included in its articles a provision dealing specifically with the issue of responsibility for what are termed composite acts—that is, acts wherein the gist of the wrong is the combination of individual acts that are not in themselves necessarily wrongful or criminal as a matter of international law. Article 15 of ARSIWA provides as follows:

1. The breach of an international obligation by a State, through a series of actions or omissions defined in aggregate as wrongful, occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.

2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.

According to the commentary, this has specific application to crimes against humanity and genocide.

Even though it has special features, the prohibition of genocide, formulated in identical terms in the 1948 Convention and in later instruments, may be taken as an illustration of a composite obligation. It implies that the responsible entity (including a State) will have adopted a systematic policy or practice. According to Article II(a) of the Convention, the prime case of genocide is "killing members of [a national, ethnical, racial or religious group]" with the intent to destroy that group as such, in whole or in part. Both limbs of the definition contain systematic elements. Genocide also has to be carried out with the relevant intention, aimed at physically eliminating the group "as such." Genocide is not committed until there has been an accumulation of acts of killing, causing harm, etc., committed with the relevant intent, so as to satisfy the definition in Article II. Once that threshold is crossed, the time of commission extends over the whole period during which any of the acts was committed, and any individual responsible for any of them with the relevant intent will have committed genocide. [17] .

The Distinction between Commission and Failure to Prevent or Punish

The 1948 UN Genocide Convention distinguishes between the basic prohibition of genocide and conduct ancillary to genocide—incitement, conspiracy, and so on [18] , and the question of prevention and punishment [19] . Persons committing genocide (whether or not State officials) are to be punished. The State is under an obligation not merely to enact laws prohibiting genocide [20] , but also to prevent and punish actual violations occurring within its territory. Thus, there is a distinction between the criminal act, which is committed by individuals and is punishable accordingly, and the State's obligation to prevent and punish—failure to do which is not as such criminal, but amounts to a breach of an international obligation. In the Application of the Genocide Convention case, as noted already, Yugoslavia (Serbia and Montenegro) argued that the only obligation that had been incumbent upon it under the convention was to prevent genocide and punish acts of genocide occurring on its territory; the court rejected this argument, affirming that the jurisdictional provision did not exclude "any form of State responsibility" [21] . The court left to the merits phase of the case the question of the scope of the obligations under the convention, and accordingly the extent of State responsibility falling within the jurisdictional provision. However, leaving aside the technicalities of jurisdiction, the better view is that—whether under the convention or as a matter of general international law—a State is responsible for any act of genocide committed by one of its organs or by other persons whose conduct in the relevant respect is attributable to the State.

As indicated by the Bosnia case, it is arguable that, in these as in other respects, there may be a distinction between on the one hand the scope of responsibility (and accordingly of jurisdiction) under the convention, and on the other the scope of the obligations, and of responsibility under general international law. For example, national jurisdiction to try persons suspected of genocide is limited by Article VI to genocide committed on the territory of the implicated State. It is inconceivable that jurisdiction is so limited under general international law, given such developments as the extension of national jurisdiction over international crimes in general (including crimes less serious than genocide).

Conclusion

Therefore, in international law, responsibility pertains to a State which commits an internationally wrongful act against another, giving rise to the duty to give reparation. The wrongful act that is attributable to a State, committed by its agencies or officials or in the exercise of its authority, constitutes a breach of international obligation that is binding at the time the act is committed.Such a classic formulation of international responsibility is premised on inter se relations of States; an act or omission of one State in breach of an obligation defined by international custom or convention, which it owes to another State. However, progress in the theory and practice of international responsibility has gone beyond the scope of bilateral relations. The developments towards the consolidation of the institutions making up the International Community of States as a whole have broadened in significant scale.