Can a State commit a crime? Definitely, yes!

Abstract

Despite the strong (probably growing) and passionate campaign against the notion of state crimes led by a handful of powerful states and relayed by some ILC members, including the new Special Rapporteur, the distinction between what is termed 'delicts' and what is termed 'crimes' answers an indisputable need and must be maintained. However, while the definition of crimes given in Article 19 of the ILC Draft Articles on State Responsibility is acceptable, though perhaps unduly sophisticated, the legal regime of these crimes as envisaged by the ILC is debatable. The method adopted to establish this regime has been grossly unsatisfactory and it must be accepted that the word 'crime' might be misleading. The concept is nevertheless indispensable in contemporary international law. As is well known, the International Law Commission decided in 1976 to include an article in its Draft Articles on State Responsibility which makes a distinction between 'normal' internationally wrongful acts, which it rather unfortunately called 'delicts', and exceptionally grave breaches of international law, which it termed, perhaps less unfortunately, 'international crimes'. 1 In this way, the ILC took up a suggestion made by its then Special Rapporteur, Roberto Ago, who, as early as 1939, had proposed such a distinction. 2 The ILC maintained this distinction when it completed the first reading of its Draft Articles in 1996, 3 despite strong (most likely growing) and passionate opposition, as several recent writings by members or former members of the Commission show. 4