Bosnia and Herzegovina
Practice Relating to Rule 149. Responsibility for Violations of International Humanitarian Law
In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2006, Bosnia and Herzegovina stated regarding the relation between State responsibility and individual criminal responsibility:
6. As has been said often enough by the various Special Rapporteurs on State responsibility, successors to Roberto Ago at the International Law Commission, the responsibility of States in international law is neither civil nor criminal – it is simply international. In reality, it borrows from both major “techniques”. It is similar to civil responsibility in that, traditionally, it is focused on an obligation of redress; this is why it has often been analysed (in my opinion, mistakenly) as equivalent to civil responsibility and this is still largely the approach. However, Roberto Ago’s immense intellectual contribution was to have highlighted the aspects which, in certain respects, assimilate it to criminal responsibility: the obligation to cease the internationally wrongful act and, in certain cases, to provide undertakings that it will not be repeated; the possibility for the victim State of recourse to countermeasures (under strict conditions) and, in the case of the most serious violations, which concern the international community as a whole, of additional consequences (some, but not all of which, are mentioned in Article 41 of the ILC Articles [on State Responsibility]). That said, this certainly does not mean that the responsibility of States in international law can be regarded as a criminal responsibility; as the ICTY’s Appeals Chamber quite rightly pointed out in the Blaškić case: “Under present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.”
7. The fact remains that such responsibility, which is neither civil nor criminal, but simply international, is that of the State to which an internationally wrongful act can be attributed.
8. Of course, in one of the most impressive breakthroughs for contemporary international law, in certain cases individuals who have conceived or committed acts of international wrongdoing which engage the responsibility of the State can be tried at international level, regardless of their official capacity. And this is true of the crimes perpetrated in the former Yugoslavia, since the International Criminal Tribunal established under Security Council resolutions 808 and 827 of 1993 has jurisdiction “for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”, including genocide. But the Tribunal can only prosecute individuals and not States; and that undeniably criminal responsibility leaves unaffected that of the States concerned, which, as I have just explained, is of an entirely different character. Who, for instance, would claim that the (criminal) prosecution of the leading Nazi war criminals at the Nuremberg Tribunal after the Second World War exonerated Germany from its (international) responsibility for the same acts?
9. Indeed, Article 25 of the Rome Statute establishing the International Criminal Court is careful to state quite specifically that none of the Statute’s provisions “relating to the individual criminal responsibility shall affect the responsibility of States under international law.” Conversely, Article 58 of the International Law Commission’s Articles on State Responsibility points out that they “are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State”.
[emphasis in original]
Bosnia and Herzegovina stated further on State responsibility:
1. … Bosnia and Herzegovina has shown, beyond all doubt, that the crimes perpetrated upon the non-Serb populations of Bosnia and Herzegovina constituted genocide, within the meaning of Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This is quite clearly a “breach of an international obligation”. That, however, is insufficient to engage the responsibility of the Respondent. For this to be the case, the acts or omissions that compose this extremely serious internationally wrongful act would have to be attributable to it in accordance with international law, as we are reminded by Article 2 of the International Law Commission Articles appended to General Assembly resolution 56/83 of 12 December 2001.
50. … Chapter II of the ILC Articles on State Responsibility for Internationally Wrongful Acts sums up this complex issue by listing the various ways in which State responsibility may be engaged. However, in our brief review of them it should always be borne in mind that attribution - what is often called the “subjective” element in the internationally wrongful act – is a (legal) operation of intellectual reconstruction which may be simple (such is the case when the author of the act of omission is an organ of the State according to its domestic law), or much more complex (when the link between the immediate perpetrator of the breach and the State responsible is concealed or denied) …
51. Taking as our basis the ILC Articles in the 2001 version, we find that [in the present case] attribution may be founded on at least three of the eight Articles that the Commission devoted to the issue, explaining that “[t]hese rules are cumulative”:
- Article 4 on conduct of organs of a State;
- Article 5 on conduct of persons or entities exercising elements of governmental authority; and
- Article 8 on “Conduct directed or controlled by a State”.
52. Article 4 of the ILC Articles, which was adopted by the Commission with some difficulty in 1998, is no more than an imperfect reflection of the overall complexity in this situation, which is simple on the surface only. However, paragraph 2 of this important provision refers us to what might be called the “reality” of the law: after paragraph 1 has stated the fundamental rule of attribution to the State of the conduct of its organs, paragraph 2 provides: “An organ includes … any person or entity which has that status in accordance with the internal law of the State.” It follows a contrario that the conduct of a person or an entity which does not have this status according to the national law may also engage the responsibility of the State. As the Commission writes in its commentary on this provision: “reference exclusively to internal law would be misleading”, adding that “a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law”.
53. It is clear that internal law can establish status as an organ of the State concerned in international law. This is obviously true of the armed forces, as the Court reminded us in its Judgment last year on (Uganda’s) Armed Activities on the Territory of the Congo: “responsibility [of a State] is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations” of international law attributable to its organs. This is the direct result of the categorical rule laid down in Article 4, paragraph 1, of the 2001 Articles, a rule which the Court had already stated very clearly in 1999 in its Advisory Opinion in the Cumaraswamy case: “the conduct of an organ of the State shall be considered as an act of that State”. It follows that actions by the JNA or the interior ministries (MUP) of Yugoslavia and the Republic of Serbia are unquestionably attributable to the Respondent.
54. It often happens that an internationally wrongful act is committed (or omitted) by entities which are not defined as organs by the law of the State concerned. In such cases the actual links that join the State to these entities which apparently lie outside its official hierarchy must be taken into account. As one writer has put it, the contrary would leave no room “for a supplementary role of international law in cases where the internal law of a State did not denote a particular entity to constitute an organ”. In other words, the organ through which the State acts may be de jure or de facto; what matters is that it conducts itself as such and acts on behalf of the State; that the persons or groups of persons concerned can be assimilated “to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions)”.
55. This clarification correctly added by the ICTY Trial Chamber in the Tadic case is not without importance. It is of little consequence that these organs have exceeded their jurisdiction or contravened their instructions: the relevant rule in Article 7 of the 2001 ILC Articles is well established by consistent jurisprudence and practice and not open to discussion. Moreover, in the present case the de jure and de facto organs of the respondent State do not appear to have acted ultra vires; they have simply zealously executed their instructions.
60. It goes without saying, Madam President, that the responsibility incurred by Serbia and Montenegro for acts (and omissions) by its organs, de jure or de facto, in no way precludes the possibility of that country’s responsibility also being may also be engaged under other heads, in particular for the conduct of persons or groups of persons in fact acting on the instructions of, or under the direction or control of, the authorities in Belgrade. All three of these eventualities are contemplated in Article 8 of the ILC Articles on State Responsibility, and these are alternative conditions: as the International Law Commission stated very clearly, “the three terms ‘instructions’, ‘direction’ and ‘control’ are disjunctive; it is sufficient to establish any one of them” … [A]ll three are present in our case.
62. … [E]ven in the absence of express instructions, the international responsibility of the State is engaged if the persons or groups of persons in question have acted under its direction (a less rigorous term that “instructions”) or
under its control.
[emphasis in original]