QUESTIONS OF STATE RESPONSIBILITY AND CONCEPT OF STATE CRIMES REMAIN BEFORE SIXTH COMMITTEE

20 October 1995

Press Release
GA/L/2871

QUESTIONS OF STATE RESPONSIBILITY AND CONCEPT OF STATE CRIMES REMAIN BEFORE SIXTH COMMITTEE

19951020 Australia Calls for Inclusion of Internal Armed Conflicts in Draft Code of Crimes

The right to undertake countermeasures and various methods of dispute settlement were discussed this afternoon as the Sixth Committee (Legal) continued discussing State responsibility and the concept of State crimes.

The representative of Venezuela said that the draft articles on that topic should ensure that States could exercise free choice in their recourse to negotiations, arbitration and appeal. Consent of the States to trigger those mechanisms should be established in the draft, he said.

The United Republic of Tanzania said that victim States often questioned the wisdom of seeking determinations by the International Court of Justice before applying countermeasures. Tanzania supported the Special Rapporteur's proposal on subjecting the matter to international political bodies for an assessment before the judicial organ decided on it.

Poland urged caution on the question of the specific mechanism for dispute settlement, saying that many such mechanisms had already been established on both multilateral and bilateral bases. Any generalized mechanisms should be endowed with a subsidiary role.

Bulgaria said that all States were entitled to immediately take necessary countermeasures so as to obtain cessation of harmful acts and to avoid irreparable damage. Only States which were directly concerned were entitled to take urgent interim measures to protect their national territorial integrity. Those actions should observe the principle of proportionality.

The representative of Croatia said that criminal responsibility should not be limited to individuals. Several kinds of organizations, including Governments, had criminal goals and undertook criminal activities.

Australia's representative said that a failure to cover internal armed conflicts in the draft code of crimes would be a serious omission.

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Also speaking this afternoon were the representatives of Morocco, Thailand and Zaire.

When it meets again at 3 p.m. Wednesday, 25 October, the Sixth Committee will continue discussing the report of the International Law Commission. It is expected to focus on the topics of State succession and its impact on the nationality of natural and legal persons; and on law and practice relating to reservations to treaties.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue debate on the report of the International Law Commission (document A/50/10). It was expected to continue discussion of the topics of State responsibility and of international liability for injurious consequences arising out of acts not prohibited by international law (chapters IV and V of the report, respectively).

Regarding State responsibility, the report states that articles proposed for inclusion in the third part of the draft contained methods of settlement of disputes and models for a conciliation commission and an arbitral tribunal. The Commission also addressed the question of the role of the General Assembly, the Security Council and the International Court of Justice under the proposed scheme of implementation of the legal consequences deriving from crimes.

The report also states that on the question of international liability the Commission adopted articles dealing with freedom of action, prevention and cooperation. Draft articles on prevention, the damage caused to the environment, remedial measures and freedom of action by States were also addressed.

(For detailed background information on the documents before the Committee, see Press Release GA/L/2863 of 12 October.)

Statements

VICTOR RODRIGUEZ-CEDENO (Venezuela) said significant progress had been made on the topic of international liability. The work of codification should take into account international realities. Legal consequences of internationally-wrongful acts and the question of dispute settlement were of special importance. He was concerned over the distinction between delicts and crimes, which needed to be a subject of careful study. It was also not easy to distinguish the individual responsibility and that of a State in cases of genocide and other international crimes.

He believed that State responsibility should be restricted to delicts. International crime could not be applied to a State. Practice reflected the fact that the aim was to deter commission of crimes against mankind. The classification of international wrongful acts was not a pure intellectual exercise, it had direct influence on application of international law.

The right of injured States to have recourse to countermeasures was also a question under discussion, he continued. The right to exercise countermeasures and prohibited countermeasures should be clearly specified in the draft. The right of an injured State could not be unlimited and had to be considered in proportion to the criminal act. Countermeasures should be coercive in nature, and not repressive or punitive.

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Speaking about the proposed mechanism of dispute settlement, he said that the capability given to any State to have recourse unilaterally to the International Court of Justice (ICJ) posed serious difficulties. It conflicted with the well-established principle of international jurisdiction that the ICJ's jurisdiction could be based only on the consent of States. Another matter of concern was a broad range of intervention by a third State, which exceeded the rules established by the Court.

He was also concerned as to whether the principle of free choice of States to have recourse to negotiations, arbitration and to appeal would be respected by the draft. Consent was needed to trigger those mechanisms, and that should be established in the draft. The best possible balance was called for between the international law and reality.

MARWA M. MATIKO (United Republic of Tanzania) said that the International Law Commission should dedicate itself to completing the elaboration of the draft code of crimes and the articles on State responsibility by the end of the century, thereby enabling the availability of a comprehensive set of conventions governing States. States, just like individuals, had inherent responsibilities in the conduct of their external relations. Breach of those obligations must call for accountability.

When States committed offensive crimes, victim States often questioned the wisdom of seeking determinations by the International Court of Justice before contemplating countermeasures. Tanzania supported the Special Rapporteur's proposal on subjecting the matter to international political bodies for an assessment before the judicial organ decided on it. That procedure would apprise the international community of the problem and ease the workload of the ICJ.

The proposal by the International Law Commission that dispute settlement be flexible had both bitter and sweet aspects. Bitter because the loose procedure did not effectively shield the weaker and often innocent State from the strong, belligerent one. On the other hand, it would allow harmonious and speedy settlement of disputes.

JANUSZ STANCZYK (Poland) said that the members of the Commission had found themselves dramatically divided in their views on the concept of State crime. With regard to institutional aspects of the international criminal responsibility of States, any role assigned to the ICJ should be carefully weighed against the past experience of the Court in other areas.

Careful consideration must be given to procedural guarantees in taking any decision concerning the existence or attribution of a crime, he continued. There had also to be a clear answer to the problem of a relationship between criminal responsibility of a State and an individual.

He urged caution on the question of the specific mechanism for dispute settlement, as envisaged in part three of the draft, saying that many such mechanisms had already been established on both multilateral and bilateral bases. There was a clear trend of using them more frequently by a growing

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number of States. Thus, any generalized mechanisms should be endowed with a subsidiary role.

Regarding the question of countermeasures, he said that the rule of proportionality was well established in international practice. The idea that an injured State was precluded from resorting to certain types of conduct by way of countermeasures was accepted as indisputable.

He went on to say that progress achieved on the question of international liability was far from satisfactory. Legal consequences which might arise, not from the breach of an obligation, but from negative transboundary effects were difficult to define. If the notion of harm were accepted as a centrepiece of the system of international liability, it would be easy to argue that whenever substantial transboundary harm occurred, liability arose. That would lead to the question of reparations, in which case it would be difficult to determine whether they were the obligation of the State, the operator, or both. Such a conception could not be pursued by the Commission, for it would lead the topic of international liability into the realm of State responsibility.

BUDISLAV VUKAS (Croatia) said that the reduction of the list of crimes to those most dangerous for international peace and security suggested the idea that they could be adopted in a document obligatory to all Members of the United Nations immediately upon adoption. The example of the statutes of the Tribunals for the former Yugoslavia and for Rwanda suggested that the conclusion of the draft code of crimes should also be adopted by a resolution of the Security Council. Acts of aggression, genocide, crimes against humanity, war crimes and international terrorism were clear, direct and constant threats to international peace and security. A resolution of the Security Council proclaiming the code would without any doubt be within its competence to take measures for international peace and security.

Regarding State responsibility, he said that criminal responsibility should not be limited to individuals. Several kinds of organizations, including governments, had criminal goals and undertook criminal activities. Criminal organizations should be punished, and States should make reparations to victims.

There were no valid reasons for discussing the use of the term "crimes" as it related to States. Governments, as well as members of the Commission, differed on the issue of which crimes should be qualified as "crimes against the peace and security of mankind". The Commission should limit its efforts to codification.

In respect of the concept of "injured States", he said that the claim that all States were injured by an international crime was generally unfounded. However, there were specific crimes which could directly affect or threaten more States or even all States, such as illicit trafficking in narcotic drugs or severe damage to the environment.

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BRANIMIR ZAIMOV (Bulgaria) said that he supported the distinction made between international "crimes" and "delicts". That distinction should be drawn on the basis of the seriousness of the consequences and the extent of the material, legal and moral injury caused to other States and to the international community. International acts considered to be "crimes" should be those acts which injured all States; which justified a demand for cessation and reparation; and which justified a generalized reaction, subject to measures of control and differentiation as regards directly or indirectly injured States.

Not all States had the same entitlements in terms of the substantive and instrumental consequences of a crime. All States were entitled immediately to take necessary countermeasures so as to obtain cessation of harmful acts and to avoid irreparable damage. Only States which were directly concerned were entitled to take such urgent interim measures to protect their national territorial integrity. Their actions should observe the principle of proportionality.

Regarding international liability for injurious consequences arising out of acts not prohibited by international law, he said that a clear concept of harm was essential for future discussions on the regime of liability. The Commission should consider the implications of imposing liability for wrongful acts when a State failed to fulfil its obligations of prevention.

JAMES BAXTER (Australia) said that in discussion of the draft code of crimes, and on the establishment of an international criminal court, there had been general agreement about the need to deal with such abhorrent acts as genocide, crimes against humanity and serious war crimes. Regarding aggression, discussion had centred on the role of the Security Council in determining the existence of an act of aggression. Discussions of the draft code and of the establishment of a court should be closely coordinated, he said.

Some had noted that the Genocide Convention had provided no protection to political or social groups. Australia believed that those concerns could be reduced if systematic acts directed at such groups could be considered "crimes against humanity". Crimes against humanity should not necessarily be linked to armed conflict, be it of an international or national character, he said.

The definition of war crimes should extend to internal armed conflicts, he said. The notion of grave breaches of the Geneva Conventions applied only to acts committed in international armed conflicts. A failure to cover internal armed conflicts in the draft code would be a serious omission, given the number of those conflicts which had occurred in recent decades.

Australia shared the views of delegations that had expressed difficulties with the whole concept of State responsibility for crimes. The issue had been grappled with by the Commission without resolution. On countermeasures and dispute settlement, he said that the Commission had developed a valuable summary of State practice in that area.

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Regarding international liability, he said that residual State liability was essential for situations in which private operators in a State did not have sufficient financial resources to provide adequate compensation to victims of injuries caused by transboundary damages.

JULIA HOUMMANE (Morocco), speaking about the report of the International Law Commission on the whole, said it was regrettable that the divergence of views on the draft code of crimes against mankind had delayed its adoption. The code must be completed with the maximum diligence, in order to prepare the legal instrument for the future international criminal court. Given the considerable increase in international crimes, that work should be completed as soon as possible.

She suggested that the list of crimes should be limited only to the acts the nature of which could not be disputed. Because of its controversial nature, crimes against the environment should not be included in the code. Further, precision and legal rigor were needed to determine the crime of aggression. The list of crimes, the penalties and the jurisdiction must all be specified in the code. The seriousness of the crimes should also be considered.

Regarding State responsibility, she said that distinction should be drawn between State responsibility for crimes and individual criminal responsibility. For humanitarian reasons, limits should be imposed on the reparations imposed on a State. Legitimization of recourse to reparations should not be made at the expense of international law and order. Prohibited countermeasures provided that an injured State could not infringe on diplomatic immunity. Inviolability of diplomatic premises and documents was essential for communication between States.

Speaking about State succession, she said it was desirable for the working group to continue considering that question. However, nationality remained a question in the realm of internal law and could not be addressed by international law. In practice, the problem of nationality should be solved within the context of an international agreement.

Mr. SANGIAMBUT (Thailand) asked for clarification regarding the wording of the article on countermeasures. He added that the means of settlement of a dispute should not be included in the section devoted to countermeasures. Countermeasures should be temporary. When the dispute was settled, the countermeasures should be terminated.

Mr. MAPANGO (Zaire) said State responsibility for international crimes was an extremely important subject, which rested on the principles of the United Nations Charter. The concept of State crime and the notion of reparations were of special interest. State crime, from the sociological standpoint, was an act for which the State was responsible. The State through its conduct could be equated with natural persons. There was a distinction between crimes and delicts, as far as both States and persons were concerned.

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Speaking about the draft code of crimes, he said the selective approach taken by the Commission should not be surprising. Certain delegations had found appealing the idea that the crimes committed by States also implicated the people of the country. Individuals should be the focus of protection efforts by international law.

The relationship between the legal regime and the responsibility of the individual was of special importance, he continued. Implementation of international responsibility should take the form of judicial proceedings to repair the harm inflicted. The purpose of the code was not to punish, but to make reparations. Generally-accepted practice should be invoked for the work of the Commission, along with the fundamental principles of international practice.

State responsibility was based on the especially severe breach of international law. It was natural that such an obligation should entail certain aggravated circumstances. The institutional machinery proposed should involve a two-phase procedure, with the General Assembly or the Security Council making the determination of the crime, and the International Court of Justice imposing judgement.

PEMMARAJU SREENIVASA RAO, the President of the International Law Commission, offered clarification on the question of the representative of Thailand, saying that the text of the report made it abundantly clear that the rule of proportionality provided that a countermeasure should not be out of proportion to the crime.

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