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.
Table of Contents
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)
220.127.116.11 Triggering initiatives within the League of Nations
18.104.22.168 Establishing the Fundamental Principles of an International Legal Code for the Repression of International Crimes
22.214.171.124 Individual initiatives for a comprehensive International Criminal Code
126.96.36.199 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)
188.8.131.52 Peace through law? UN procedures and the critical role of the Security Council
184.108.40.206 The IMT, IMTFE, Nuremberg Principles and Draft Code of Offences against the Peace and Security of Mankind
220.127.116.11 The Genocide Convention and the proposals for an international criminal jurisdiction
1.2.2 Defining aggression, State crimes and underlying concepts (1960-1980)
18.104.22.168 Non-institutional initiatives
22.214.171.124 Peremptory norms (jus cogens), erga omnes obligations and State crimes
126.96.36.199 State crimes under Article 19 of the ILC’s 1980 Draft Articles on State Responsibility
1.2.3 Codifying dualism (1980-2001)
188.8.131.52 The ICLA’s Project for a comprehensive International Criminal Code
184.108.40.206 Achieving the Draft Code of Crimes against the Peace and Security of Mankind
220.127.116.11 Ad hoc international and hybrid tribunals
18.104.22.168 Achieving the Statute of the International Criminal Court
22.214.171.124 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)
126.96.36.199 Genocide in the jurisprudence of the ICJ: the ‘second death’ of State crimes?
188.8.131.52 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
184.108.40.206 Serious breaches of peremptory norms (jus cogens): 2001 DASR 40
220.127.116.11 Linking jus cogens and erga omnes obligations: VCLT and VCLTIO Article 53 and 2001 DASR 40, 42, 48 and 54
18.104.22.168 Serious breaches of erga omnes obligations: 1996 DASR 19 and 40
22.214.171.124 Fundamental obligations
126.96.36.199 Jus cogens, erga omnes obligations and State responsibility in international case law
2.1.2 Individual criminal responsibility, jus cogens and erga omnes obligations
188.8.131.52 From criminals to crimes: erga omnes responsibility in the ICC Statute
184.108.40.206 Erga omnes responsibility in the case law
2.1.3 State aggravated responsibility, individual criminal responsibility, jus cogens and (non-severable) erga omnes obligations
220.127.116.11 (Non-severable) erga omnes obligations as jus cogens
18.104.22.168 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
22.214.171.124 Attributing aggravated responsibility to the State based on conduct of its organs or agents: absolute identity?
126.96.36.199 Individual responsibility for international crimes: mens rea
2.2.2 Attributing individual criminal conduct to the State
188.8.131.52 Individual mens rea versus State objective responsibility?
184.108.40.206 Individual and State mens rea?
220.127.116.11 Assessing State fault on a case-by-case basis under the ILC’s DASR
2.3 Dual erga omnes offences
18.104.22.168 State conduct as a basis for individual conduct (and vice-versa)
22.214.171.124 Leadership and mens rea
126.96.36.199 Self-Defence as a dual excuse
2.3.2 Core war crimes
188.8.131.52 Individual conduct as a basis for collective responsibility
184.108.40.206 Systemically proving individual mens rea
2.3.3 Core crimes against humanity
220.127.116.11 Systemic conduct
18.104.22.168 Systemically proving individual mens rea
22.214.171.124 Individual genocidal conduct without State responsibility?
126.96.36.199 Collective specific intent as a basis for individual intent (and vice-versa)
188.8.131.52 Political or ideological purpose as a distinguishing material element
184.108.40.206 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
220.127.116.11 Institutionalised and non-institutionalised (compulsory) universal invocation of responsibility: 2001 DASR 41(1), 42(b), 48(1)(b) and 59
18.104.22.168 Non-punitive erga omnes sanctions? 2001 DASR 28-39 and UN Charter Articles 39-42
22.214.171.124 Institutionalised and non-institutionalised universal enforcement: 2001 DASR 41(1), 54 and 59
126.96.36.199 Rejecting compulsory jurisdiction
188.8.131.52 Punitive erga omnes sanctions? 1996 DASR 41-46 and 52
184.108.40.206 Universal punitive enforcement? 1996 DASR 53
3.1.2 Individual criminal responsibility
220.127.116.11 (Compulsory) universal jurisdiction and complementary international adjudication
18.104.22.168 (Erga omnes) imprisonment, fines and forfeiture
22.214.171.124 Domestic enforcement
3.2 Procedural intersections
3.2.1 Systemic patterns and inter-temporality
3.2.2 The limits of UN procedures
126.96.36.199 Chapter VII procedures: political and enforcement action for State aggravated responsibility?
188.8.131.52 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
184.108.40.206 Bosnian genocide
220.127.116.11 Humanitarian crises in Kosovo, Libya and Syria
18.104.22.168 Iraq wars
22.214.171.124 Counter-terrorism in Afghanistan, Syria and Iraq
3.2.4 State and individual immunities as a bar to domestic jurisdiction?
126.96.36.199 State and individual immunities?
3.2.5 Ad hoc criminal jurisdictions: victors’ justice?
188.8.131.52 Power and organic dependence
184.108.40.206 Ex post jurisdictions
3.2.6 The independence of the International Criminal Court
220.127.116.11 Permanency as a guarantee of independence?
18.104.22.168 The UN Security Council and the International Criminal Court
22.214.171.124 Jurisdictional autonomy over aggression?
Ottavio Quirico is a Senior Lecturer in the School of Law at the University of New England in Australia, an Honorary Lecturer at the Centre for European Studies of the Australian National University and an Alumnus of the European University Institute.