Duality of Responsibility in International Law

The Individual, the State, and International Crimes

Series: 

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.

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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.
Foreword

Preface

Abbreviations

About the Author

Table of Cases

Introduction

part 1
Parameters of Responsibility
1Subjects 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


2Primary 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
3Crimes under International Law
 a Elements of Individual Criminal Responsibility
 i The Objective Element

 ii The Subjective Element


 b An Element Approach to Crimes


4Internationally 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



5Breach 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
6Rules 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


7Rules 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


8Convergence 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
9Consequences
 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


10Defenses
 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


11Jurisdiction
 a Jurisdiction over Individuals under International Law

 b Jurisdiction over States under International Law

 c Divergence in Rules of Jurisdiction


12Immunity
 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
13The 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


14Conclusions


Index