Crimes of State and the 1996 Report of the International Law Commission on State Responsibility 1 Introduction The idea of a distinction between `normal' state delicts and delicts which are `grave', `aggravated,' or `criminal' was not new2 when Roberto Ago, as Special Rapporteur of the ILC on State Responsibility, introduced the concept of `international crimes' in his Fifth Report.3 Article 19, as adopted in 1976, provided as follows: International crimes and international delicts 1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached. 2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognised as a crime by that community as a whole constitutes an international crime. 3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as that prohibiting slavery, genocide and apartheid; d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the environment or of the seas. 4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict. Even the most cursory reading of Article 19 reveals the substantial problems inherent in the draft. They can be summarized in the following questions: i) What are the obligations referred to in paragraphs 2 and 3? It is clear that they are not legally defined in the clear and precise sense normally required by the maxim nulla poene sine lege. Article 19 is a description of the kind of obligations covered by the Article, not a definition of those obligations. Thus, some body - presumably a judicial body - would have the difficult task of deciding whether the international community `recognised' a particular breach as a crime; or whether the breach was sufficiently `serious'; whether the obligation was of `essential importance'; and, of course, whether the breach was proven on the evidence.4 ii) Who decides that an obligation is of this kind; that it has been breached; and that the breach is `serious'? It is perhaps surprising that this question - in a sense the most difficult question - does not appear to have been addressed when Article 19 was so well received. iii) What consequences flow from such a decision? It is clear that this last question was one which the Commission assumed from the outset would be part of its subsequent work. Equally clearly, it was assumed that the consequences would be more serious than in the case of ordinary delicts. Otherwise there was little point in distinguishing between ordinary delicts and crimes, if the consequences were to be the same. But the lack of real analysis of the first two questions, (a) and (b), both in the Commission and in the Sixth Committee, is perhaps surprising. In fact, and despite these outstanding difficulties, the draft Article 19 was greeted with acclaim in the Sixth Committee of the General Assembly in 1976 (except for Sweden5) and the text of Article 19 has remained unchanged to this date. However, in the 1995 and 1996 sessions of the Commission, when it attempted to adopt a series of articles spelling out the consequences of Article 19, the inherent difficulties of Article 19 were recognized, and it was this that gave rise to a difficult and controversial debate. For this reason, the Commission's Report6 contains a special request to Member States to focus and comment on the different proposals made in the Commission. It is important that they do so, and, to this end, they will need to understand fully the issues involved. 2 See Mohr, `The ILC's Distinction between International Crimes and International Delicts and its Implications', in M. Spinedi and B. Simma (eds.), United Nations Codification of State Responsibility (1987) 114, at 117-118. 3 Yearbook of the ILC (1976 - II, part 1) 24, at paras. 72-155. 4 For example, the obligation to respect treaties is clear. But would a breach meet the requirements of para. 3(a)? If the treaty were a peace treaty, or an armistice agreement, it might, but such a finding would require an assessment of all the circumstances. Similarly, whilst there are many treaties establishing environmental obligations, a breach would not automatically meet the requirements of para. 3(d) In adopting the many environmental treaties that now exist, states certainly did not believe that they were contemplating criminal responsibility in the event of a breach. 5 UN Doc. A/CN.4/342, at 5. 6 UN Doc. A/51/10, at 110.
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