State responsibility: a concerto for court, council and committee.

• Author: Johnstone, Rachael Lorna

1. INTRODUCTION

   The judgment in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention case), released by the International Court of Justice (the Court) on 26th February 2007, has thrown up a number of interesting issues to keep scholars of international law entertained for some years. (1) Amongst these are the rules of state responsibility in international law. In the Genocide Convention Case, the Court relied upon the narrow regime of state responsibility that they had introduced in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua) over 20 years previously, rejecting a stronger doctrine suggested by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic case. (2) The Court's conservative interpretation of state responsibility does not immediately appear to be in harmony with the regimes of state responsibility envisaged by other United Nations institutions, notably, state responsibility for terrorist activities as understood by the Security Council (the Council), and the tertiary scheme of state responsibility for violations of human rights adopted and applied by the United Nations human rights treaty bodies (treaty bodies). (3)

   After this short introduction, Part II will discuss the rules of state responsibility applied by the Court in the Genocide Convention case, in light of the International Law Commission (ILC) Articles on State Responsibility, Nicaragua and Tadic. (4) Part III is devoted to an examination of resolutions of the Council pertaining to terrorism, particularly following the terrorist attacks of September 2001, and the vision of state responsibility implicit therein. In Part IV, the author will examine the adoption of the tertiary scheme of state responsibility for human rights adopted by the treaty bodies which is illustrated in general comments, concluding comments on state reports, and where appropriate, views on communications. To conclude in Part V, the author will argue that the different schemes of state responsibility can all be reconciled with the ILC Articles and that the apparent differences between these three fields are in fact differences of primary rules. The answer to the question "who is the state?" is the same in all three cases.

   The focus is exclusively on the institutions of the United Nations and, for that reason, developments in the realm of state responsibility in other institutions, such as the European Court of Human Rights or in broader counter-terrorism literature will not be directly addressed.

2. THE INTERNATIONAL COURT OF JUSTICE AND STATE RESPONSIBILITY FOR GENOCIDE

   1. The International Court of Justice

      Formally at least, judicial decisions are binding only between the parties to each dispute. (5) They are formally considered only "subsidiary sources" of international law, alongside legal commentaries. (6) Treaties, customary international law, and legal principles of civilized nations are preferred. Nonetheless, the Court's decisions are highly influential both on the academic study of international law and state practice. Indeed Dupuy states: "everyone accepts that its judicial interpretations are for the most part binding on all the subjects of international law." (7) The Statute of the Court does not indicate any hierarchy amongst courts, referring only to "judicial decisions" without indicating any particular fora. (8) Nevertheless, the practice of the Court, perhaps unsurprisingly, has been to cite its own decisions with a degree of gravitas that is perhaps not shared in its discussion of decisions of other international tribunals or domestic courts. In the Genocide Convention case, the Court clearly preferred its own 20 year old Nicaragua ruling to the more recent Tadic decision of the ICTY. (9) It makes no reference to the jurisprudence of the Iran-United States Claims Tribunal despite its influence on the development of the law of state responsibility. (10)

   2. The Genocide Convention Case

      Ultimately, in the Genocide Convention case, Serbia (formerly the Federal Republic of Yugoslavia) was not found to have any responsibility for the commission of genocide, conspiracy or incitement to commit genocide, or complicity in genocide. (11) It was, however, considered responsible for violating the Genocide Convention to the extent that Serbia failed to prevent the genocide and failed to cooperate adequately with the prosecution of individuals suspected of involvement. (12) It was also held to have failed to comply with the provisional measures of the Court, issued in 1993, which required it specifically to "take all measures within its power to prevent genocide." (13)

      Before approaching questions of state responsibility, it is important to note that the only question before the Court was responsibility for genocide, not for any other international wrongs, such as acts of aggression or violation of the duty not to intervene in the internal affairs of a sovereign state. (14) The only matter for which the Court determined that genocide had been proven to have been committed was the massacre at Srebrenica. (15) Therefore, the question of state responsibility in the case pivots on that sequence of events. A state can only commit genocide, or be complicit in the commission of genocide, to the extent that genocide actually takes place. (16) Serbian responsibility for any other atrocity during the conflict was not assessed by the Court.

      On the other hand, responsibility for conspiracy to commit genocide, incitement to commit genocide, or attempting to commit genocide does not necessarily require that genocide be successfully carded out. (17) Indeed, to the extent that genocide is actually committed, there can be no charge of attempt on the same facts. (18) Nonetheless, even on these points, the Court contained its analysis of attribution largely to the events at Srebrenica. (19)

      All kinds of questions can be asked about the standing of the parties, (20) the definition of genocide both in the Convention and in customary international law, (21) imputation from non-disclosure by Serbia, (22) the burden of proof, (23) the degree to which the Court can make inferences from the circumstances when direct evidence is almost impossible to obtain, (24) the limitations on the Court vis a vis fact-finding, (25) and the Court's reluctance to "put the pieces together," (26) but these questions, interesting as they are, do not bear directly on the issue of attribution of responsibility and so will not be addressed further.

      It must be borne in mind that the wrong (i.e. the genocide) was committed not in Serbia but in Bosnia and Herzegovina (Bosnia) against Bosnian victims. Any potential responsibility of Serbia for actions taking place at Srebrenica in 1995 cannot depend on some kind of territorial link, as it might have, had the genocide occurred within the territory of Serbia. (27) In this respect, the case can be distinguished from questions of responsibility for "harboring terrorists" when those terrorists are actually on the soil of the respondent state and from responsibility for human rights violations committed by non-state actors when both the perpetrators and victims are within a state's territory. (28)

   3. State responsibility for genocide

      Bosnia attempted to pre-empt the need for an investigation on the facts of state responsibility by arguing that Serbia had acknowledged responsibility in a statement by its Council of Ministers. (29) This was rejected by the Court as a "political statement" rather than an admission of liability. (30) The Court was therefore obliged to consider both the law of state responsibility and the application of that law to the facts of the case. (31)

      The Court recognized the established principle that states bear responsibility for acts or omissions of their own organs, de jure or de facto, or by non-state actors operating under the "direction or control" of the state. (32) Articles 4 and 8 of the ILC Articles were accepted as "customary international law" without further discussion. (33) They are worth replicating in full:

      Article 4

      Conduct of organs of a State

      1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

      2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

      Article 8

      Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. Relying on the "customary international law" of state responsibility, the Court rejected any notion that the rules of state responsibility for genocide were in any way lex specialis. (34) Although the Genocide Convention creates treaty obligations, the (secondary) rules of state responsibility for violating those obligations are the general ones. No special scheme applies. (35)

      The principle perpetrators recognized by the Court were not, under Serbia's internal law, its "organs." (36) Straightforward attribution of responsibility according to Article 4 was therefore precluded, notwithstanding Bosnia's protestations to the contrary. Nonetheless, states may not hide behind their internal legal order to evade international responsibility and the Court discussed at length whether or not those involved were de facto agents of Serbia, relying on the Nicaragua test of "complete dependence" in light of Article 4 of the ILC Articles. (37)

      The Court accepted on the facts that those involved had been...