CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … and J. Crawford, appointed in 1997. Already in 1962 it was proposed to change the definition of the topic on “the definition” of the general rules governing the international responsibility of state. The aim of this author’s contribution is not to discuss in detail the history of the topic on state responsibility within the framework of the ILC. The purpose of this article is to describe the international responsibility of states which is entailed by a serious breach of obligations arising under peremptory norms of international law and identification of these norms as well. The great controversy in the ILC was over the notion of international crimes of state embodied in Art. 19 and 40 (3) in the 1996 Draft Articles. Originally the ILC Draft articles on state responsibility in Art. 19 mentioned international crimes as distinguished from international delicts, both described in the framework of internationally unlawful acts. The breach of an international obligation so essential for the protection of ,,fundamental interests of the international community” as a “whole” was here recognised as an international crime. All other international wrongful acts were described as only ,,international delicts”. A considerable number of lawyers considered the notion of state crimes as highly controversial, connecting the term ,,international crimes” with penal responsibility of states. The ILC was originally able to justify inclusion of the international crimes into Draft articles taking into account the development in international law since 1945 (the concept of peremptory norms, recognised international criminal jurisdiction, prohibition of threats to or breaches of the peace and acts of aggression). As examples of international crimes by states were given e.g. aggression, colonial domination (maintenance or establishment, genocide, massive pollution of the atmosphere or the sea). In 2001 the ILC influenced by Crawford as a special rapporteur changed its approach to the concept of international crimes and decided to replace the term of international crimes by the notion of ,,any serious breach” by a state of an obligation arising under a peremptory norm of international law and not recognise any such situation as ,,lawful”. The ILC in 1996 adopted a Draft Code of Crimes against the Peace and Security of Mankind. 28 The 1998 Rome Statute provides that its jurisdiction is limited to the ,,most serious crimes” of concern to the international community as a whole, mentioning genocide, crimes against humanity, war crimes and aggression. 29 These crimes were formulated as crimes of individuals only (not of states) with their individual responsibility in accordance with the Statue of the International Criminal Court. It is acknowledged that other international offences like e.g. prohibition of torture also established a norm of jus cogens . In many instances these acts (offences) will also constitute a violation of jus cogens norms by states. In fact these jus cogens ,,offences” may include a double meaning of responsibility: 1. international criminal responsibility and 2. international responsibility of states and international organisations. The ILC in its commentary recognised that this development had implications for the secondary rules of state responsibility originally reflected by a category of ,,international crimes of states” in contrast with all other cases of internationally wrongful acts (international delicts). The commentary stated that there were ,,no penal consequences for states of breaches of these fundamental norms” and mentioned for example, that the award of punitive damages is not recognised in international law ,,even in relation to serious breaches of obligations arising under peremptory norms”. The ILC in its commentary cited the judgement of the IMT in Nürnberg stating that ,,crimes against international law are committed by men, 28 Report of the ILC 1996, Doc. A/51/10, p. 9. 29 Doc. A/CONF. 183/9 of 17 July 1998, Art. 5, see also legal. un. org//icc/statute/99_corr/cstatue.httm.

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