ESSAY ON STATE RESPONSIBILITY

The elements of state responsibility

The paper seeks to throw light on the concept of state responsibility under public
international law. It deals with the elements of state responsibility, the elements
of international responsibility and the relationship between the state and
indicidual responsibility under international law. It also explains the distinction
between the commission and the failure to prevent or punish.

Introduction
The law of State responsibility is the chapter of international law that concerns the
breach by a State of one or more of its international obligations. In international
law, responsibility is the corollary of obligation; every breach by a subject of
international law of its international obligations entails its international
responsibility. The law of State responsibility defines when an international
obligation is to be held to have been breached, as well as the consequences of
that breach, including which States are entitled to react, and the permissible
means of that reaction.
Unlike national laws, wherein different rules often apply according to the source of
the obligation breached (e.g., contract law, tort law, criminal law), international
law does not concern itself with the source of the obligation that is breached; in
principle (and unless otherwise specifically provided) the same rules apply to the
breach of an obligation whether the source of the obligation is a treaty, customary
international law, a unilateral declaration, or the judgment of an international
court.
In August 2001 the International Law Commission [1] completed its Articles on the
Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project on
which it had been working for more than forty years. The aim of the articles is to
codify the generally applicable rules of State responsibility.
It should be noted that the ARSIWA are envisaged as laying down general rules
that apply in default of any more specific rule applicable to the obligation in
question. In some cases, special rules may apply to an obligation (either as a
result of the formulation of the rule itself, or because the obligation in question
forms part of a special regime); for instance, it is possible that a particular
obligation may be subject to a special rule requiring fault or damage before there
is held to be a breach, or it may be that the category of States entitled to react is
wider than the default position under the ARSIWA. This is the principle of lex
specialis (to the extent that special rules are applicable and inconsistent with the
rules contained in the ARSIWA, the special rules will prevail and displace the more
general rules).

The Elements of State Responsibility

The starting point of the articles is that "every internationally wrongful act of a
State entails the international responsibility of that State" [2] . The act or omission
of a State will qualify as an "internationally wrongful act" if two conditions are
met. First, the act or omission must constitute a breach of an international
obligation, or, as the articles put it, must be "not in conformity with what is
required" by the international obligation [3] . This implies that the obligation in
question must be binding on the State at the time of the conduct, which is said to
constitute a breach. Second, the act or omission must be "attributable" to the
State.
The general rule is that a State is not responsible for the acts of private
individuals. The State is of course an abstract entity, unable to accomplish any
physical act itself. Just as in domestic law corporations act through their officers
and agents, so in international law the State normally acts through its organs and
officials. The first, and clearest, case of attribution is that of the organs of the
State (e.g., police officers, the army) whose acts are attributable to the State even
in instances where they contravene their instructions, or exceed their authority as
a matter of national law [4] . No distinction is made based on the level of the
particular organ in the organizational hierarchy of the State; State responsibility
can arise from the actions of a local policeman, just as it can from the actions of
the highest officials, for instance a head of state or a foreign minister. Nor is any
distinction made upon the basis of the separation of powers; State responsibility
may arise from acts or omissions of the legislature and the judiciary, although by
the nature of things it is more common that an internationally wrongful act is the
consequence of an act or acts of the executive. Second, the rules of attribution
cover situations in which individuals, not otherwise State organs, are exercising
"elements of governmental authority" at the time that they act [5] . Third, acts of
private individuals are attributable to the State if those individuals are acting on
the instructions of the State, or under its effective direction or control [6] . Fourth,
in exceptional circumstances in which there is an absence or default of
governmental authority, the acts of private individuals may be attributable to the
State if those individuals, in effect, step into the breach and perform necessary
governmental functions [7] .
With regard to certain obligations, a State may incur responsibility even though
actions have been carried out by private individuals, because the essence of the
obligation was to ensure that a given result occurred. For instance, if a foreign
embassy is overrun by a mob, or harm is done to diplomatic staff by private
individuals, as occurred with the U.S. embassy in Tehran during the Iranian
revolution of 1979 to 1980, a State may incur responsibility, even if those
individuals act on their own initiative. Equally, under Article V of the 1948
Convention on the Prevention and Punishment of the Crime of Genocide, the
obligation of a State to punish those responsible for genocide earlier on related to
genocide may be breached in instances in which a State fails to punish any person
responsible for the genocide, "whether they are constitutionally responsible rulers,
public officials, or private individuals." There is probably a similar rule in general
international law in relation to crimes against humanity. In both cases, the basis of
responsibility here is not the attribution to the State of the acts of the individuals;
it is the failure by the State as an entity to comply with the obligations of
prevention and prosecution incumbent on it.
A somewhat anomalous instance of attribution is that covered by Article 10. As
was noted above, in the normal course of events, a State is not responsible for the
acts of private individuals; a fortiori, it is not responsible for the acts of
insurrectional movements, because, by definition, an insurrectional group acts in
opposition to the established state structures and its organization is distinct from
the government of the State to which it is opposed. However, Article 10(1)
provides that "the conduct of an insurrectional movement which becomes the new
government of a State shall be considered an act of that State under international
law." Article 10(2) provides for a similar rule with respect to an insurrectional
movement that succeeds in establishing a new State within the territory of a pre-
existing State. The effect of the rule is to attribute retrospectively the conduct of
the movement in question to the State. In the case of a successful insurrectional
movement, the acts of the movement are attributed to the State as if the
movement had been the government at the time of its acts, even though, if the
insurrection had failed, no attribution would be possible. In the case of the
establishment of a new State, the effect is even more drastic because acts are
attributed to the State retrospectively to a time when it did not yet definitively
exist.
Except in this case, there is no established machinery for attributing collective
responsibility (e.g., for war crimes, genocide, or crimes against humanity) to an
armed opposition group. In such circumstances individual responsibility is the only
possibility at the international level of ensuring a degree of responsibility for
criminal acts.
Certain circumstances may serve to preclude the wrongfulness of a breach of
international law by a State, in much the same way that defenses and excuses
work in national criminal law. In international law these are termed "circumstances
precluding wrongfulness" [8] . For instance, the consent of the state to which the
obligation was owed will prevent the breach being wrongful, as will, under certain
restrictively defined conditions, force majeure, distress, and necessity. Finally, a
State taking countermeasures (defined as the nonperformance of an obligation in
response to a prior wrongful act of another State, in order to induce that State to
comply with its obligations) may mean that what would otherwise be a breach of
an international obligation is not in fact wrongful. However, quite apart from the
strict procedural conditions with which the taking of countermeasures is hedged,
it should be noted that certain obligations may not be the object of
countermeasures. Among these are the obligation to refrain from the threat or use
of force, obligations for the protection of fundamental human rights, obligations of
a humanitarian character prohibiting reprisals under peremptory norms of general
international law (jus cogens). This last limitation in fact applies generally to
circumstances precluding wrongfulness: it is never possible to plead that a breach
of a peremptory norm was justified.

The Content of International Responsibility

Upon the commission of an internationally wrongful act, new legal obligations
come into existence for the State responsible for that act. First, that State is under
an obligation to make full reparation for the injury caused by the internationally
wrongful act. Reparation may take one of three forms: restitution, compensation,
or satisfaction (or some combination of them). Traditionally, restitution has played
the primary role, although in instances in which restitution is materially
impossible, the injured State may have to content itself with compensation or
satisfaction. Second, the responsible State is under an obligation to conclude the
internationally wrongful act if it is continuing, and in an appropriate case, may be
required to make assurances and guarantees of non-repetition.
The Articles mark a decisive step away from the traditional bilateralism of
international law and toward what has been called "community interest" in the
provisions dealing with the States that are entitled to react to the breach of an
internationally wrongful act. Traditionally, only the State that was directly injured,
or in some way "targeted," by the breach of an international obligation could
demand reparation. In addition, although any state could take unfriendly
measures that did not constitute the breach of an international obligation owed to
the State at which they were directed (retorsion), the taking of countermeasures
was commonly understood as being limited to these "injured States."
The first major move away from the strict bilateralism of international law was the
judgment of the International Court of Justice in the Barcelona Traction, Light and
Power Company Limited (Belgium v. Spain) case. In that case, the court stated:
[A]n essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection. By their very nature the former
are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations
erga omnes [9] .
In the next paragraph, the court went on to state that "such obligations derive, for
example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the
basic rights of the human person, including protection from slavery and racial
discrimination." This distinction between obligations of which only the injured
State may complain, and those in the observance of which a wider community of
States have an interest, is reflected in Articles 42 and 48, although it should be
stressed that the latter provision is undoubtedly one of the clearest examples of
progressive development to be found within the articles. It seems indisputable
that all other States have an interest in the observance by other States (and
individuals) of the prohibitions of genocide and crimes against humanity.
However, the exact implications of this interest require further working out in the
light of State practice.

The Relationship between State Responsibility

and Individual Responsibility
The relationship between State responsibility and individual responsibility has
until recently been a neglected issue, principally due to the late development of
international individual criminal responsibility.
In 1947 the International Military Tribunal at Nuremberg stated that "crimes
against international law are committed by men, not by abstract entities, and only
by punishing individuals who commit such crimes can the provisions of
international law be enforced" [10] . This statement says much about perceptions
of the international legal system in the immediate aftermath of World War II;
however, insofar as it seems to assert that observance of the rules of international
law prohibiting atrocities can only be achieved through the prosecution of
individuals, the assertion no longer holds true.
During the 1990s a number of inter-State cases alleging State responsibility for
violations of the international rules concerned with the outlawing of atrocities
were brought before the International Court of Justice. Some of these cases, in
particular those between the States that had emerged after the disintegration of
the Socialist Federal Republic of Yugoslavia (Bosnia and Herzegovina v. Yugoslavia
[Serbia and Montenegro], 1993 onward; Croatia v. Yugoslavia, 1999 onward),
concerned situations involving allegations of genocide and crimes against
humanity that were concurrently the subject of investigation and prosecution of
individuals before the International Criminal Tribunal for the Former Yugoslavia
(ICTY). Other cases [11] alleged, among other things, violations of the 1948 UN
Genocide Convention, serious violations of human rights, and war crimes that had
not been the subject of international prosecution. At the preliminary objections
stage of the case (mentioned above) between Bosnia and Serbia-Montenegro, the
respondents argued for a restrictive interpretation of the jurisdictional provision
contained in Article IX of the 1948 UN Genocide Convention. Article IX provides as
follows:
Disputes between the Contracting Parties relating to the interpretation,
application or fulfillment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
Article III, shall be submitted to the International Court of Justice at the request of
any of the parties to the dispute.
Serbia-Montenegro argued that the provision only conferred jurisdiction on the
court in relation to responsibility for failure to comply with the obligations to
prevent and punish genocide, as contained in Articles V, VI, and VII of the
convention, and not to State responsibility for violations of the substantive
prohibition of genocide contained in Article III. Accordingly, it was argued, as the
jurisdiction of the court is based on consent, the court had no jurisdiction in
relation to the allegations made by Bosnia and Herzegovina of violations of the
prohibition of genocide by individuals whose acts were attributable to Serbia-
Montenegro.
The court dealt with the point briefly, observing:
[T]he reference in Article IX to "the responsibility of a State for genocide or for any
of the other acts enumerated in Article III," does not exclude any form of State
responsibility. Nor is the responsibility of a State for acts of its organs excluded by
Article IV of the Convention, which contemplates the commission of an act of
genocide by "rulers" or "public officials" [12] .
Accordingly, it held, a dispute existed between the parties on this point, as well as
on the "the facts of the case, their imputability, and the applicability to them of
the provisions of the Genocide Convention," and was sufficient to its
jurisdiction [13] . Two points bear emphasizing. First, the argument of Serbia-
Montenegro did not have as a necessary premise that State responsibility for
actual acts of genocide attributable to a State does not exist; rather, the
argument was that State responsibility of this type did not fall within Article IX.
Second, the decision of the court at the preliminary objections stage of the case
did not definitively decide whether breach of the 1948 UN Genocide Convention
by an individual necessarily involves State responsibility if the relevant acts are
attributable to a State, as the only hurdle that had to be surmounted was whether
there was a dispute between the parties as to the interpretation or application of
the convention. However, the tone of the court's judgment seems to suggest that
State responsibility does arise in these circumstances, and this would be
consistent with general principle.
Conversely, the ICTY has made reference to State responsibility in elucidating the
law relevant to the international criminal responsibility of individuals. In the
Furundzija case the Trial Chamber held that the international legal norms
prohibiting torture arising from human rights law and international humanitarian
law "impose obligations upon States and other entities in an armed conflict, but
first and foremost address themselves to the acts of individuals, in particular to
State officials or more generally, to officials of a party to the conflict or else to
individuals acting at the instigation or with the consent or acquiescence of a party
to the conflict" [14] . As a consequence,
Under current international humanitarian law, in addition to individual criminal
liability, State responsibility may ensue as a result of State officials engaging in
torture or failing to prevent torture or to punish torturers. If carried out as an
extensive practice of State officials, torture amounts to a serious breach on a
widespread scale of an international obligation of essential importance for
safeguarding the human being, thus constituting a particularly grave wrongful act
generating State responsibility [15] .
It is therefore now generally accepted that a single act can give rise to "two
distinct types of responsibility coming under mutually autonomous legal
regimes" [16] . The ILC intentionally left the question of the interplay of the two
bodies of law open for future development, inserting a saving clause as Article 58,
ARSIWA, which reads, "These articles are without prejudice to any question of the
individual responsibility under international law of any person acting on behalf of
a State." Similarly, the Rome Statute of the International Criminal Court (ICC)
provides in its Article 25(4) that "[n]o provision in this Statute relating to
individual criminal responsibility shall affect the responsibility of States under
international law."
However, although the rules constituting the general-framework of State
responsibility and international criminal responsibility may constitute distinct
bodies of law, there are inevitably certain overlaps or points of contact between
the two systems due to the fact that at the root of both are the same norms of
substantive international law, that is, those prohibiting anyone from committing
genocide, crimes against humanity, and so on.
Most obviously, for instance, it is clear that an individual cannot be found guilty of
genocide if he did not have the "specific intent" to "destroy in whole or part, a
national, ethnical, racial, or religious group, as such," required by Article II of the
1948 Genocide Convention. Equally, in seeking to establish State responsibility for
genocide, it seems clear that at least one person, if not more, whose acts are
attributable to the State should have the requisite specific intent. In this sense,
the 1948 Genocide Convention operates as a lex specialis in relation to the
generally applicable rules of international law, in which culpa or intention is not
generally required.
Second, although the definition of genocide is not expressed in such terms, the
logistical and organizational structures necessary for the commission of the crime
inevitably involve State or para-statal structures. A person who murders a single
person on the basis of the national, ethnic, racial, or religious group to which that
person belongs does not commit genocide, even though it may be that he would
murder all of the members of the group if he could, and thus arguably has the
required specific intent. A certain amount of concertation is necessary, and there
is a certain threshold of scale both for genocide and crimes against humanity (of
which, ultimately, genocide is a species).
In relation to crimes against humanity, Article 3 of the Statute of the International
Criminal Tribunal for Rwanda (ICTR) requires that the acts have been committed
as part of "a widespread or systematic attack against any civilian population on
national, political, ethnic, racial, or religious grounds," whereas Article 5 of the
Statute of the ICTY, which only requires that the acts have been committed "in
armed conflict, whether international or internal in character, and directed against
any civilian population" has been interpreted by the ICTY as requiring that there
be a widespread or systematic attack. In similar fashion, Article 7 of the Rome
Statute of the ICC imposes the slightly different requirement of "a widespread and
systematic attack directed against any civilian population" in its definition of
crimes against humanity. As with genocide, the requirement of "a widespread or
systematic attack" implies an element of scale or of planning, and will in most
cases involve structures and apparatus that will normally only be disposed of by a
State or by an armed opposition group, although proof of a plan or policy is not a
necessary part of the definition of the crime.
It was for reasons of this kind that the ILC included in its articles a provision
dealing specifically with the issue of responsibility for what are termed composite
acts—that is, acts wherein the gist of the wrong is the combination of individual
acts that are not in themselves necessarily wrongful or criminal as a matter of
international law. Article 15 of ARSIWA provides as follows:
1. The breach of an international obligation by a State, through a series of actions
or omissions defined in aggregate as wrongful, occurs when the action or
omission occurs which, taken with the other actions or omissions, is sufficient to
constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first
of the actions or omissions of the series and lasts for as long as these actions or
omissions are repeated and remain not in conformity with the international
obligation.
According to the commentary, this has specific application to crimes against
humanity and genocide.
Even though it has special features, the prohibition of genocide, formulated in
identical terms in the 1948 Convention and in later instruments, may be taken as
an illustration of a composite obligation. It implies that the responsible entity
(including a State) will have adopted a systematic policy or practice. According to
Article II(a) of the Convention, the prime case of genocide is "killing members of
[a national, ethnical, racial or religious group]" with the intent to destroy that
group as such, in whole or in part. Both limbs of the definition contain systematic
elements. Genocide also has to be carried out with the relevant intention, aimed
at physically eliminating the group "as such." Genocide is not committed until
there has been an accumulation of acts of killing, causing harm, etc., committed
with the relevant intent, so as to satisfy the definition in Article II. Once that
threshold is crossed, the time of commission extends over the whole period during
which any of the acts was committed, and any individual responsible for any of
them with the relevant intent will have committed genocide. [17] .

The Distinction between Commission and Failure

to Prevent or Punish
The 1948 UN Genocide Convention distinguishes between the basic prohibition of
genocide and conduct ancillary to genocide—incitement, conspiracy, and so
on [18] , and the question of prevention and punishment [19] . Persons
committing genocide (whether or not State officials) are to be punished. The State
is under an obligation not merely to enact laws prohibiting genocide [20] , but
also to prevent and punish actual violations occurring within its territory. Thus,
there is a distinction between the criminal act, which is committed by individuals
and is punishable accordingly, and the State's obligation to prevent and punish—
failure to do which is not as such criminal, but amounts to a breach of an
international obligation. In the Application of the Genocide Convention case, as
noted already, Yugoslavia (Serbia and Montenegro) argued that the only obligation
that had been incumbent upon it under the convention was to prevent genocide
and punish acts of genocide occurring on its territory; the court rejected this
argument, affirming that the jurisdictional provision did not exclude "any form of
State responsibility" [21] . The court left to the merits phase of the case the
question of the scope of the obligations under the convention, and accordingly the
extent of State responsibility falling within the jurisdictional provision. However,
leaving aside the technicalities of jurisdiction, the better view is that—whether
under the convention or as a matter of general international law—a State is
responsible for any act of genocide committed by one of its organs or by other
persons whose conduct in the relevant respect is attributable to the State.
As indicated by the Bosnia case, it is arguable that, in these as in other respects,
there may be a distinction between on the one hand the scope of responsibility
(and accordingly of jurisdiction) under the convention, and on the other the scope
of the obligations, and of responsibility under general international law. For
example, national jurisdiction to try persons suspected of genocide is limited by
Article VI to genocide committed on the territory of the implicated State. It is
inconceivable that jurisdiction is so limited under general international law, given
such developments as the extension of national jurisdiction over international
crimes in general (including crimes less serious than genocide).

Conclusion
Therefore, in international law, responsibility pertains to a State which commits an
internationally wrongful act against another, giving rise to the duty to give
reparation. The wrongful act that is attributable to a State, committed by its
agencies or officials or in the exercise of its authority, constitutes a breach of
international obligation that is binding at the time the act is committed. Such a
classic formulation of international responsibility is premised on inter se relations
of States; an act or omission of one State in breach of an obligation defined by
international custom or convention, which it owes to another State. However,
progress in the theory and practice of international responsibility has gone beyond
the scope of bilateral relations. The developments towards the consolidation of
the institutions making up the International Community of States as a whole have
broadened in significant scale.
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Introduction
State responsibility constitutes a central institution of the system of public international law. The law of state responsibility
encompasses a variety of issues. First, it defines the circumstances in which a state will be held to have breached its
international obligations, as well as the limited catalogue of justifications and defenses a state may rely upon in order to avoid
responsibility for an otherwise wrongful act. Second, it covers the consequences of the breach of an international obligation,
including in particular the central obligation to make full reparation, as well as the obligation to put an end to continuing
wrongful acts. Finally, it deals with the way the responsibility arising from breach of an international obligation is
implemented, in particular governing which states may invoke the responsibility of the wrongdoing state, as well as the
means by which responsibility may be implemented, in particular through the adoption of countermeasures. The primary
point of reference in relation to the law of state responsibility is the Articles on the Responsibility of States for Internationally
Wrongful Acts (the ILC Articles), adopted by the International Law Commission (ILC) in 2001, which constitute the fruit of the
ILC’s attempt to codify and progressively develop the law in this area. The work of the ILC on the topic has exerted a
profound influence in setting the terms of the debate. Since 2001, discussion of particular issues of state responsibility has
generally been framed by—or is avowedly a reaction to—the approach taken by the ILC. Even prior to 2001, and in particular
since the early 1970s, much of the literature discussed questions of state responsibility primarily by reference to the state of
the ILC’s work as it stood at the time. To the extent that the approach of the ILC on specific questions evolved over the
course of its work, some caution is necessary in referring to older literature. That is not to say, however, that literature prior to
the adoption of the ILC Articles has been entirely superseded. In relation to a number of issues, in particular questions of the
theory of state responsibility, some of the older literature remains of great relevance. Similarly, to the extent that particular
questions, for instance the notion of “state crimes” or the classification of obligations, were eventually not included in the final
version of the ILC Articles, the older literature remains the primary source of reference.

General Overviews
The law of state responsibility plays a central role in international law, functioning as a general law of wrongs that governs
when an international obligation is breached, the consequences that flow from a breach, and who is able to invoke those
consequences (and how). As a consequence, the law of state responsibility is multifaceted and covers a veritable multitude
of issues. The situation is further complicated by the fact that the customary international law of state responsibility is to be
understood as constituting a set of default rules, and that, in application of the lex specialisprinciple, in general states are free
to agree that different rules should apply to specific obligations in force between them as regards, inter alia, attribution of
conduct, when an obligation is breached, the content of any responsibility that arises, and questions of invocation. As a
result, any attempt to cover even a majority of the most important issues that could potentially arise under the law of state
responsibility is a daunting task. The leading point of reference in relation to the default rules of customary international law is
the International Law Commission’s (ILC’s) Commentaries to the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (ILC Commentaries) (see The Work of the ILC on State Responsibility). Prior to final adoption of
the Articles, a number of works aimed to provide more or less complete overviews of the law of state responsibility, although
none of them are complete; for instance, Brownlie 1983 was the first part of a planned two-volume treatment of the law of
state responsibility, with the (unpublished) second volume to follow covering circumstances precluding wrongfulness and
countermeasures and questions of standing. Such earlier works remain of substantial value, although obviously they now
have to be read in the light of the approach adopted in the ILC Articles. Crawford, et al. 2010 is an authoritative, up-to-date,
and extensive volume that consists of scholarly articles from leading academics and practitioners: this is the leading
reference work on the topic of state responsibility, with a comprehensive range of contributions covering the major topics of
the law in this area. The articles are generally of a very high quality, and each includes a list of relevant additional sources for
further reference. Crawford 2013 is the leading monograph on the topic, drawing on the author’s special expertise, and his
experience as the ILC’s last Special Rapporteur on the State Responsibility. Provost 2002 contains a selection of academic
writing on state responsibility, published soon after the final adoption of the Articles. It also includes the text of the final ILC
Articles as well as the draft ILC Articles adopted on first reading in 1996. Ragazzi 2005, although not purporting to provide a
comprehensive overview of the topic, is a useful collection of essays by prominent academics, touching on many important
aspects of the law of state responsibility.