In the course of the 20th and 21st centuries, major offences committed by individuals have been subject to progressive systematisation in the framework of international criminal law. Proposals developed within the context of the League of Nations coordinated individual liability and State responsibility. By contrast, international law as codified after World War II in the framework of the United Nations embodies a neat divide between individual criminal liability and State aggravated responsibility. However, conduct of State organs and agents generates dual liability. Through a critical analysis of key international rules, the book assesses whether the divisive approach to individual and State responsibility is normatively consistent. Contemporary situations, such as the humanitarian crises in Syria and Libya, 9/11 and the Iraq wars demonstrate that the matter still gives rise to controversy: a set of systemic problems emerge. The research focuses on the substantive elements of major offences, notably agression, genocide, core war crimes, core crimes against humanity and terrorism, as well as relevant procedural implications.
The book is a useful resource for practitioners, policymakers, academics, students, researchers and anyone interested in international law and politics.
Chapter 1 – From monism to dualism
1.1 Monism: coordinating individual and State responsibility prior to World War II
1.1.1 The dawn of criminal responsibility in international law: proposals for a universal criminal code (1860-1919)
1.1.2. Inter-war coordination (1920-1939)
188.8.131.52 Triggering initiatives within the League of Nations
184.108.40.206 Establishing the Fundamental Principles of an International Legal Code for the Repression of International Crimes
220.127.116.11 Individual initiatives for a comprehensive International Criminal Code
18.104.22.168 The ICLA’s Draft Statute for a Criminal Chamber of the PCIJ and the Global Repressive Code
1.2 Dualism: disjoining individual and State responsibility after World War II
1.2.1 Between coordination and disjunction (1940-1960)
22.214.171.124 Peace through law? UN procedures and the critical role of the Security Council
126.96.36.199 The IMT, IMTFE, Nuremberg Principles and Draft Code of Offences against the Peace and Security of Mankind
188.8.131.52 The Genocide Convention and the proposals for an international criminal jurisdiction
1.2.2 Defining aggression, State crimes and underlying concepts (1960-1980)
184.108.40.206 Non-institutional initiatives
220.127.116.11 Peremptory norms (jus cogens), erga omnes obligations and State crimes
18.104.22.168 State crimes under Article 19 of the ILC’s 1980 Draft Articles on State Responsibility
1.2.3 Codifying dualism (1980-2001)
22.214.171.124 The ICLA’s Project for a comprehensive International Criminal Code
126.96.36.199 Achieving the Draft Code of Crimes against the Peace and Security of Mankind
188.8.131.52 Ad hoc international and hybrid tribunals
184.108.40.206 Achieving the Statute of the International Criminal Court
220.127.116.11 From ‘State crimes’ to ‘serious breaches of peremptory norms’ in the ILC’s Draft Articles on State Responsibility
1.2.4 Genocide, aggression and terrorism still in search of identity (2001-2018)
18.104.22.168 Genocide in the jurisprudence of the ICJ: the ‘second death’ of State crimes?
22.214.171.124 Aggression and terrorism: developments in the ICC Statute and beyond
Chapter 2 – Breach of a primary norm: offence
2.1 Core substantive elements of the offence
2.1.1 The obligations breached by State aggravated offences
126.96.36.199 Serious breaches of peremptory norms (jus cogens): 2001 DASR 40
188.8.131.52 Linking jus cogens and erga omnes obligations: VCLT and VCLTIO Article 53 and 2001 DASR 40, 42, 48 and 54
184.108.40.206 Serious breaches of erga omnes obligations: 1996 DASR 19 and 40
220.127.116.11 Fundamental obligations
18.104.22.168 Jus cogens, erga omnes obligations and State responsibility in international case law
2.1.2 Individual criminal responsibility, jus cogens and erga omnes obligations
22.214.171.124 From criminals to crimes: erga omnes responsibility in the ICC Statute
126.96.36.199 Erga omnes responsibility in the case law
2.1.3 State aggravated responsibility, individual criminal responsibility, jus cogens and (non-severable) erga omnes obligations
188.8.131.52 (Non-severable) erga omnes obligations as jus cogens
184.108.40.206 State aggravated offences and individual criminal offences as breaches of (non-severable) erga omnes obligations
2.2 Attribution of responsibility
2.2.1 Dual conduct
220.127.116.11 Attributing aggravated responsibility to the State based on conduct of its organs or agents: absolute identity?
18.104.22.168 Individual responsibility for international crimes: mens rea
2.2.2 Attributing individual criminal conduct to the State
22.214.171.124 Individual mens rea versus State objective responsibility?
126.96.36.199 Individual and State mens rea?
188.8.131.52 Assessing State fault on a case-by-case basis under the ILC’s DASR
2.3 Dual erga omnes offences
184.108.40.206 State conduct as a basis for individual conduct (and vice-versa)
220.127.116.11 Leadership and mens rea
18.104.22.168 Self-Defence as a dual excuse
2.3.2 Core war crimes
22.214.171.124 Individual conduct as a basis for collective responsibility
126.96.36.199 Systemically proving individual mens rea
2.3.3 Core crimes against humanity
188.8.131.52 Systemic conduct
184.108.40.206 Systemically proving individual mens rea
220.127.116.11 Individual genocidal conduct without State responsibility?
18.104.22.168 Collective specific intent as a basis for individual intent (and vice-versa)
22.214.171.124 Political or ideological purpose as a distinguishing material element
126.96.36.199 Specific intent and collective responsibility
Chapter 3 – Secondary norms: dispute settlement, sanctions and enforcement
3.1 Secondary and tertiary implications of dual erga omnes offences
3.1.1 State aggravated responsibility
188.8.131.52 Institutionalised and non-institutionalised (compulsory) universal invocation of responsibility: 2001 DASR 41(1), 42(b), 48(1)(b) and 59
184.108.40.206 Non-punitive erga omnes sanctions? 2001 DASR 28-39 and UN Charter Articles 39-42
220.127.116.11 Institutionalised and non-institutionalised universal enforcement: 2001 DASR 41(1), 54 and 59
18.104.22.168 Rejecting compulsory jurisdiction
22.214.171.124 Punitive erga omnes sanctions? 1996 DASR 41-46 and 52
126.96.36.199 Universal punitive enforcement? 1996 DASR 53
3.1.2 Individual criminal responsibility
188.8.131.52 (Compulsory) universal jurisdiction and complementary international adjudication
184.108.40.206 (Erga omnes) imprisonment, fines and forfeiture
220.127.116.11 Domestic enforcement
3.2 Procedural intersections
3.2.1 Systemic patterns and inter-temporality
3.2.2 The limits of UN procedures
18.104.22.168 Chapter VII procedures: political and enforcement action for State aggravated responsibility?
22.214.171.124 The limited role of consensual jurisdiction, particularly the International Court of Justice
3.2.2 Decentralised State action under general international law
3.2.3 A controversial practice
126.96.36.199 Bosnian genocide
188.8.131.52 Humanitarian crises in Kosovo, Libya and Syria
184.108.40.206 Iraq wars
220.127.116.11 Counter-terrorism in Afghanistan, Syria and Iraq
3.2.4 State and individual immunities as a bar to domestic jurisdiction?
18.104.22.168 State and individual immunities?
3.2.5 Ad hoc criminal jurisdictions: victors’ justice?
22.214.171.124 Power and organic dependence
126.96.36.199 Ex post jurisdictions
3.2.6 The independence of the International Criminal Court
188.8.131.52 Permanency as a guarantee of independence?
184.108.40.206 The UN Security Council and the International Criminal Court
220.127.116.11 Jurisdictional autonomy over aggression?
The series offers a space for new and emerging scholars of international law to publish original arguments, as well as presenting alternative perspectives from more established names in international legal research. Works cover both the theory and practice of international law, presenting innovative analyses of the nature and state of international law itself as well as more specific studies within particular disciplines. The series will explore topics such as the changes to the international legal order, the processes of law-making and law-enforcement, as well as the range of actors in public international law. The books will take a variety of different methodological approaches to the subject including interdisciplinary, critical legal studies, feminist, and Third World approaches, as well as the sociology of international law. Looking at the past, present and future of international law the series reflects the current vitality and diversity of international legal scholarship.