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Duality of Responsibility in International Law
The Individual, the State, and International Crimes
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The responsibility of individuals and that of States under international law are generally regarded as independent systems. Each is a distinct form of responsibility governed by a different set of rules. The separability of these two forms of responsibility does not, however, dictate that they necessarily operate in isolation from one another. To the contrary, linkages between the fields of individual and State responsibility define the parameters of the principle of duality of responsibility in international law. Duality of Responsibility in International Law offers a roadmap to help navigate this complex legal space.
Thomas Weatherall, J.D., Ph.D. (Cantab), M.Sc. (Oxon), is an Attorney-Adviser in the Office of the Legal Adviser of the U.S. Department of State. The views expressed herein are the author’s own and not necessarily those of the Department of State or the U.S. Government.
Series Editor
Vincent Chetail
Editorial Board
Philip G. Alston, New York University School of Law
Anthony Carty, University of Hong Kong
Pierre-Marie Dupuy, Graduate Institute of International Studies
Anne Peters, Max Planck Institute for Comparative Public Law and International Law
Steven R. Ratner, University of Michigan
William A. Schabas, Middlesex University
Vincent Chetail
Editorial Board
Philip G. Alston, New York University School of Law
Anthony Carty, University of Hong Kong
Pierre-Marie Dupuy, Graduate Institute of International Studies
Anne Peters, Max Planck Institute for Comparative Public Law and International Law
Steven R. Ratner, University of Michigan
William A. Schabas, Middlesex University
Foreword
Preface
Abbreviations
About the Author
Table of Cases
Introduction
part 1
Parameters of Responsibility
1 Subjects of Responsibility under International Law
a The State as a Subject of International Law
b The Individual as a Subject of International Law
c Duality of Responsibility in International Law
2 Primary and Secondary Rules
a Primary Rules
i Individual-Directed Rules
ii State-Directed Rules
b Secondary Rules
i Distinguishing Secondary Rules of Individual and State Responsibility
ii Secondary Rules of Individual Responsibility
iii Secondary Rules of State Responsibility
iv Associated Secondary Rules
1 Consequences
2 Defenses
3 Jurisdiction
4 Immunity
part 2
Breach
3 Crimes under International Law
a Elements of Individual Criminal Responsibility
i The Objective Element
ii The Subjective Element
b An Element Approach to Crimes
4 Internationally Wrongful Acts
a Elements of State Responsibility
b Two Categories of Primary Rules
c Concurrent State Responsibility
i Peremptory Norms and their Correlates
ii Acta Jure Imperii
iii Crimes of States
iv Aggravated State Responsibility
d Complementary State Responsibility
i Obligations Erga Omnes
ii Implications of Distinct Primary Rules
1 International Crime as a Prerequisite
2 Attribution of International Crime not a Prerequisite
3 No Mitigation of Concurrent Responsibility for an International Crime
5 Breach and the Interaction of Primary and Secondary Rules
a Relationship between Elements of Individual and State Responsibility
b Sources of Law
c Standards of Proof
part 3
Attribution
6 Rules of Attribution in International Criminal Law
a Modes of Attribution
i Commission
1 Direct Perpetration
2 Indirect Perpetration
3 Joint Criminal Enterprise
ii Encouragement
1 Planning
2 Ordering
3 Instigating
iii Assistance
1 Aiding and Abetting
2 Assisting in Commission of a Crime by a Group
iv Superior Responsibility
v Inchoate Offences
1 Attempt
2 Conspiracy
3 Incitement
b Conclusions
i Relevance to Attribution in the Law of State Responsibility
ii Identifying the Parameters of Modes of Attribution
iii Methodology and Sources of Law
7 Rules of Attribution in the Law of State Responsibility
a Modes of Attribution
i State Organs
ii De Facto State Organs
iii Ultra Vires Conduct
iv Other Circumstances in which Conduct may be Attributable to the State
1 Instruction of the State or under its Direction or Control
2 Exercise of Governmental Authority in the Absence of Official Authority
3 Insurrection
4 Conduct Acknowledged and Adopted by the State
b Conclusions
i Secondary Rules of General Applicability
ii Actions and Omissions
8 Convergence and Divergence in Attribution
a Principles of Attribution: Culpability and Objectivity Distinguished
b Double Attribution
c International Crimes, Official Capacity, and Attribution to the State
d Crimes under International Law Performed in a Private Capacity
e Attribution to the State and Individual Immunity Ratione Materiae
part 4
Responsibility
9 Consequences
a Consequences of Individual Criminal Responsibility
i Purposes
ii Penalties
b Consequences of an Internationally Wrongful Act
i Consequences for the Responsible State
1 Cessation
2 Reparation
ii Consequences Beyond the Responsible State
1 Serious Breaches
2 Third-State Consequences
c Non-Recognition and Non-Maintenance
d Cooperation
iii Standing
1 Common Legal Interest in Performance
2 Beneficiaries of Invocation of Responsibility
e Differentiation in Forms of Responsibility and their Consequences
10 Defenses
a Exclusion of Responsibility for Crimes under International Law
i Failure of Proof
ii Justification and Excuse
b Circumstances Precluding Wrongfulness for Internationally Wrongful Acts
c Points of Contact in Avoidance of Responsibility
11 Jurisdiction
a Jurisdiction over Individuals under International Law
b Jurisdiction over States under International Law
c Divergence in Rules of Jurisdiction
12 Immunity
a Immunity of Individuals under International Law
i Immunity Ratione Personae
1 International Courts and Tribunals
2 Domestic Courts
ii Immunity Ratione Materiae
1 International Courts and Tribunals
2 Domestic Courts
iii Inviolability
b State Immunity under International Law
c Corresponding Divergence in Rules of Immunity
part 5
Duality of Responsibility in International Law
13 The Legal Framework of Duality of Responsibility
a Individual Responsibility
b State Responsibility
c The Relationship Between Individual and State Responsibility
i Breach
ii Attribution
iii Responsibility
14 Conclusions
Index
Preface
Abbreviations
About the Author
Table of Cases
Introduction
part 1
Parameters of Responsibility
1 Subjects of Responsibility under International Law
a The State as a Subject of International Law
b The Individual as a Subject of International Law
c Duality of Responsibility in International Law
2 Primary and Secondary Rules
a Primary Rules
i Individual-Directed Rules
ii State-Directed Rules
b Secondary Rules
i Distinguishing Secondary Rules of Individual and State Responsibility
ii Secondary Rules of Individual Responsibility
iii Secondary Rules of State Responsibility
iv Associated Secondary Rules
1 Consequences
2 Defenses
3 Jurisdiction
4 Immunity
part 2
Breach
3 Crimes under International Law
a Elements of Individual Criminal Responsibility
i The Objective Element
ii The Subjective Element
b An Element Approach to Crimes
4 Internationally Wrongful Acts
a Elements of State Responsibility
b Two Categories of Primary Rules
c Concurrent State Responsibility
i Peremptory Norms and their Correlates
ii Acta Jure Imperii
iii Crimes of States
iv Aggravated State Responsibility
d Complementary State Responsibility
i Obligations Erga Omnes
ii Implications of Distinct Primary Rules
1 International Crime as a Prerequisite
2 Attribution of International Crime not a Prerequisite
3 No Mitigation of Concurrent Responsibility for an International Crime
5 Breach and the Interaction of Primary and Secondary Rules
a Relationship between Elements of Individual and State Responsibility
b Sources of Law
c Standards of Proof
part 3
Attribution
6 Rules of Attribution in International Criminal Law
a Modes of Attribution
i Commission
1 Direct Perpetration
2 Indirect Perpetration
3 Joint Criminal Enterprise
ii Encouragement
1 Planning
2 Ordering
3 Instigating
iii Assistance
1 Aiding and Abetting
2 Assisting in Commission of a Crime by a Group
iv Superior Responsibility
v Inchoate Offences
1 Attempt
2 Conspiracy
3 Incitement
b Conclusions
i Relevance to Attribution in the Law of State Responsibility
ii Identifying the Parameters of Modes of Attribution
iii Methodology and Sources of Law
7 Rules of Attribution in the Law of State Responsibility
a Modes of Attribution
i State Organs
ii De Facto State Organs
iii Ultra Vires Conduct
iv Other Circumstances in which Conduct may be Attributable to the State
1 Instruction of the State or under its Direction or Control
2 Exercise of Governmental Authority in the Absence of Official Authority
3 Insurrection
4 Conduct Acknowledged and Adopted by the State
b Conclusions
i Secondary Rules of General Applicability
ii Actions and Omissions
8 Convergence and Divergence in Attribution
a Principles of Attribution: Culpability and Objectivity Distinguished
b Double Attribution
c International Crimes, Official Capacity, and Attribution to the State
d Crimes under International Law Performed in a Private Capacity
e Attribution to the State and Individual Immunity Ratione Materiae
part 4
Responsibility
9 Consequences
a Consequences of Individual Criminal Responsibility
i Purposes
ii Penalties
b Consequences of an Internationally Wrongful Act
i Consequences for the Responsible State
1 Cessation
2 Reparation
ii Consequences Beyond the Responsible State
1 Serious Breaches
2 Third-State Consequences
c Non-Recognition and Non-Maintenance
d Cooperation
iii Standing
1 Common Legal Interest in Performance
2 Beneficiaries of Invocation of Responsibility
e Differentiation in Forms of Responsibility and their Consequences
10 Defenses
a Exclusion of Responsibility for Crimes under International Law
i Failure of Proof
ii Justification and Excuse
b Circumstances Precluding Wrongfulness for Internationally Wrongful Acts
c Points of Contact in Avoidance of Responsibility
11 Jurisdiction
a Jurisdiction over Individuals under International Law
b Jurisdiction over States under International Law
c Divergence in Rules of Jurisdiction
12 Immunity
a Immunity of Individuals under International Law
i Immunity Ratione Personae
1 International Courts and Tribunals
2 Domestic Courts
ii Immunity Ratione Materiae
1 International Courts and Tribunals
2 Domestic Courts
iii Inviolability
b State Immunity under International Law
c Corresponding Divergence in Rules of Immunity
part 5
Duality of Responsibility in International Law
13 The Legal Framework of Duality of Responsibility
a Individual Responsibility
b State Responsibility
c The Relationship Between Individual and State Responsibility
i Breach
ii Attribution
iii Responsibility
14 Conclusions
Index
The targeted readership includes legal professionals—both academic specialists and practitioners—in public international law and international criminal law, graduate students, and possibly undergraduates studying law.