Responsibility in International Law PDF

[[CHAPTER 5. RESPONSIBILITY IN INTERNATIONAL LAW] 2](#chapter-5.-responsibility-in-international-law) [[1.] [State Responsibility] 2](#state-responsibility) [[1. The elements of State Responsibility] 2](#the-elements-of-state-responsibility) [[1. Attribution] 2](#attribution) [[2. Breach of an I...

[[CHAPTER 5. RESPONSIBILITY IN INTERNATIONAL LAW] 2](#chapter-5.-responsibility-in-international-law) [[1.] [State Responsibility] 2](#state-responsibility) [[1. The elements of State Responsibility] 2](#the-elements-of-state-responsibility) [[1. Attribution] 2](#attribution) [[2. Breach of an International Obligation] 8](#breach-of-an-international-obligation) [[2. Circumstances Precluding Wrongfulness] 8](#circumstances-precluding-wrongfulness) [[1.] [Consent] 8](#consent) [[2.] [Self-Defense] 9](#self-defense) [[3.] [Countermeasures] 9](#countermeasures) [[4.] [Force Majeure] 10](#force-majeure) [[5.] [Distress] 11](#distress) [[6.] [Necessity] 11](#necessity) [[3. Consequences of State Responsibility] 12](#consequences-of-state-responsibility) [[1. Cessation of the Wrongful Act] 12](#cessation-of-the-wrongful-act) [[2. Assurances and Guarantees of Non-Repetition] 13](#assurances-and-guarantees-of-non-repetition) [[3. Reparation for the Injury Caused] 13](#reparation-for-the-injury-caused) [[2.] [The responsibility of International Organizations] 15](#the-responsibility-of-international-organizations) [[1.] [Introduction] 15](#introduction) [[2.] [Non-Judicial Accountability Mechanisms for International Organizations] 15](#non-judicial-accountability-mechanisms-for-international-organizations) [[3.] [Judicial Accountability of International Organizations] 16](#judicial-accountability-of-international-organizations) [[3.] [The responsibility of individuals] 19](#the-responsibility-of-individuals) [[1.] [Introduction] 19](#introduction-1) [[2.] [Mechanisms for Accountability] 19](#mechanisms-for-accountability) [[1.] [The International criminal Court] 20](#the-international-criminal-court) [[2.] [Ad Hoc International Tribunals:] 20](#ad-hoc-international-tribunals) [[3.] [Hybrid Tribunals] 20](#hybrid-tribunals) [[4.] [National Courts, based on universal juridiction] 20](#national-courts-based-on-universal-juridiction) [[3. Key International Crimes and Applicable Laws] 20](#key-international-crimes-and-applicable-laws) [[1. Genocide:] 20](#genocide) [[2. Crimes against humanity] 21](#crimes-against-humanity) [[3. War Crimes] 21](#war-crimes) [[4. Aggression] 22](#aggression) CHAPTER 5. RESPONSIBILITY IN INTERNATIONAL LAW ============================================== State Responsibility -------------------- ### 1. The elements of State Responsibility State responsibility refers to the principles governing the accountability of states for their actions or omissions that violate international obligations, impacting other states or the international community. It forms a core part of maintaining order and accountability in international relations, ensuring states adhere to international agreements, and fostering peaceful coexistence. Foundational principles are outlined in the **International Law Commission's (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001)**, which, while non-binding, are widely accepted as reflective of customary international law. According to article 1 of the ILC Draft Articles "Every **internationally wrongful act** of a State entails the international responsibility of that State." This means that when a state violates an international obligation, it must face the consequences under international law. Article 2 of the Draft Articles details the two elements required to hold states accountable: "Article 2 **Elements** of an internationally wrongful act of a State: There is an internationally wrongful act of a State when conduct consisting of an action or omission: a. is **attributable** to the State under international law; and b. constitutes a **breach** of an **international obligation** of the State. #### 1. Attribution For conduct to be classified as an internationally wrongful act, it must be attributable to the state under international law. Attribution ensures that the specific act or omission can be linked to the state's authority. According to article 4 of the Draft Articles, the conduct of "any state organ" is attributable to the state, meaning that any act or omission by such an organ is legally considered an act of the state itself under international law. This rule applies regardless of the type of function the organ performs, whether legislative, executive, judicial, or any other state function. This principle holds true whether the organ is part of the central government (e.g., national ministries) or a territorial unit (e.g., local governments or regional authorities). The purpose is to capture any official conduct as state conduct, irrespective of the organ\'s level in the hierarchy. The term \"organ\" includes any person or entity that is recognized as such under the internal law of the state. Article 5 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts addresses the conduct of persons or entities that, while not considered state organs as defined in Article 4, are empowered by state law to "exercise elements of governmental authority." Article 5 still considers this conduct attributable to the state if these persons or entities are legally authorized to exercise governmental authority and are acting in that capacity at the time of the conduct. This attribution applies only if the person or entity is empowered by the state's internal law to perform certain functions that typically belong to the government, such as law enforcement, regulation, or administration. These non-state organs are called para -- statal entities: private or semi-autonomous actors, such as private companies or individuals, that are not classified as official state organs but are delegated public powers by the state. For the conduct to be attributable to the state, the person or entity must act in an official capacity, performing functions that are typically considered governmental. Article 5 prevents states from outsourcing core governmental functions to private actors as a means to evade international responsibility. By including entities empowered by the state, it holds the state accountable for their actions. Examples are: Private Military Contractors: If a state authorizes private military contractors to carry out military or security operations, any internationally wrongful acts committed by them while performing those duties can be attributed to the state; Privatized Detention Centers: If a state contracts a private company to run detention facilities and that company violates international human rights while managing the facilities, such violations can be considered acts of the state. There are many other examples (can you think of one?). Article 7 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts addresses the situation where state organs or entities acting on behalf of the state exceed their given authority or contravene specific instructions. This article ensures that a state cannot avoid international responsibility for acts committed by its organs or authorized entities simply because those acts went beyond their official mandate. The conduct of a state organ, or a person or entity authorized to exercise governmental authority, is attributable to the state even if the organ or entity acts beyond its legal powers (ultra vires) or disregards specific instructions. The key criterion for attribution under this article is that the organ or entity was acting in its capacity as an official representative of the state at the time of the act, regardless of whether it overstepped its legal boundaries or disobeyed orders. Example: If a police officer uses force in a manner not permitted by law or goes beyond authorized actions during a state operation, that use of force can still be attributed to the state, or if a state diplomat engages in unauthorized negotiations that violate direct government instructions but does so while fulfilling their role as a diplomat, the resulting actions are attributed to the state. The rule prevents states from escaping liability by claiming that wrongful acts were committed by rogue officials or entities acting independently or beyond their instructions. It underscores the principle that states should bear responsibility for wrongful conduct by their representatives, even when the conduct is unauthorized or contrary to orders. Article 8 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts outlines the conditions under which the conduct of private individuals or groups can be attributed to a state. This article is important for determining when non-state actors' actions are considered acts of the state under international law. The conduct of private individuals or groups is considered an act of the state if it can be demonstrated that they acted on the instructions of, or were under the direction or control of, the state when carrying out the conduct. For this article to apply, there must be evidence that the state exerted sufficient control over the individuals or groups, whether by issuing direct instructions or by maintaining substantial oversight and direction over their actions. If individuals or groups act based on explicit orders or instructions from the state, their conduct is attributable to the state. This implies a clear, direct link between the state and the non-state actors. An example: A state intelligence agency instructing a private group to carry out surveillance or sabotage activities would make the state responsible for those acts. Attribution can also occur even if there is no direct instruction but instead a significant level of control or direction by the state. This may involve scenarios where the state guides or influences the actions of the individuals or groups in a way that equates to oversight of the operation. In international law, the degree of control required to attribute conduct to a state has been assessed through the "effective control" or "overall control". The overall control test and the effective control test are legal standards used to determine the degree of control a state must exercise over non-state actors for their conduct to be attributed to the state under international law. These tests are applied in cases involving the use of proxy forces, armed groups, or other entities acting on behalf of the state. Conduct of a person or a group of people can be attributed to a state if they are effectively performing functions that are typically associated with governmental authority (article 9). This attribution occurs when the official state authorities are absent or not functioning, and the circumstances necessitate that those individuals or groups take over such roles. In essence, when there is a power vacuum or when official authorities fail to act, individuals who step in and exercise governmental functions can make the state legally responsible for their actions. If an insurrectional movement (i.e., a group rising against the government) succeeds and becomes the new legitimate government of a state, its actions during the period of insurrection are retrospectively considered acts of that state (article 10). This means that once an insurgent group gains power and establishes itself as the official government, the state becomes accountable under international law for what the movement did during the uprising. These principles help ensure that there is legal clarity regarding responsibility for conduct during situations where non-state actors take on state functions or where new governing bodies emerge after an insurrection. When such a movement successfully forms a new state, its conduct leading up to that point is attributed to the new state under international law. This principle ensures that the new state bears responsibility for the actions taken by the movement before its official establishment. Article 11 states that even if an act is not initially attributable to a state under the earlier articles (articles 4 to 10), it can still be considered an act of that state if the state explicitly acknowledges and adopts the conduct as its own. This means that when a state officially recognizes and endorses the actions of non-state actors, those actions are treated as if the state itself carried them out, making the state legally responsible for them under international law. #### 2. Breach of an International Obligation A breach of an international obligation occurs when a state's conduct does not align with what is required by that obligation. The origin of the obligation (whether it is derived from a treaty, customary international law, or a general principle) or the nature of the obligation (whether procedural or substantive) does not matter. What is essential is that the state\'s conduct must meet the required standards set by that obligation. If it fails to do so, it constitutes a breach. These articles collectively set the parameters for determining when a state is in breach of its international obligations, ensuring clarity and fairness in how state responsibility is assessed. ### 2. Circumstances Precluding Wrongfulness In international law, there are specific circumstances under which an otherwise wrongful act may be excused, meaning that while the act might technically breach an international obligation, it does not result in state responsibility due to these extenuating circumstances. These circumstances, outlined by the International Law Commission in its Articles on Responsibility of States for Internationally Wrongful Acts, are meant to ensure that states are not held liable for breaches of obligations when reasonable and justified exceptions apply. Certain situations may preclude wrongfulness, making it difficult or impossible to attribute responsibility. These include: #### Consent Article 20 *Consent* *Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.* Consent allows a state to avoid responsibility for an act that would otherwise breach an international obligation if the injured state has given permission for that specific action. For consent to preclude wrongfulness, it must be freely given, explicit, and provided by the competent authority of the consenting state. Consent must also be given before or at the time of the act in question; it cannot be retroactively applied to justify an already completed breach. Once consent is granted, the acting state must respect the boundaries of that permission. If it exceeds the scope of consent, the act may still be considered wrongful. A country may permit foreign military exercises on its soil, which would otherwise violate its sovereignty. This permission, or consent, removes the wrongful nature of what would otherwise be an illegal presence of foreign troops. However, if the foreign forces extend their stay or begin activities beyond those permitted, such actions would constitute a breach of the boundaries of consent, and the state could incur in responsibility. #### Self-Defense Article 21 *Self-defence* *The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.* Self-defense is a recognized right of states under international law, notably codified in Article 51 of the United Nations Charter "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security". It allows a state to use force to protect itself from an armed attack without being held accountable for breaching obligations such as the prohibition on the use of force. For self-defense to preclude wrongfulness, the response must meet two critical criteria: necessity and proportionality. Necessity requires that the use of force is essential to repel the attack, with no viable alternative. Proportionality means that the defensive actions must be limited to what is necessary to stop the attack and must not exceed the harm posed by the initial aggression. If a state is invaded, it has the right to defend itself, potentially involving actions like crossing into the aggressor's territory to eliminate the threat. However, if its response involves extensive and unrelated damage to civilian infrastructure, it could be considered disproportionate, and the state may then face responsibility despite the initial right to self-defense. #### Countermeasures Article 22 *Countermeasures in respect of an internationally wrongful act* *The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.* Countermeasures are actions taken by an injured state in response to an internationally wrongful act by another state, intended to induce compliance with international obligations. According to chapter II of part 3, for countermeasures to be lawful and preclude wrongfulness, they must adhere to several strict conditions: - Countermeasures may only target the state that committed the wrongful act. - They must be proportionate to the initial harm and aimed at encouraging the offending state to return to compliance. - Countermeasures must cease once the responsible state has remedied its breach. - Countermeasures cannot involve the use of force; they are usually economic or diplomatic in nature. If State A illegally seizes a fishing vessel from State B, State B might respond by suspending an unrelated trade agreement as a countermeasure. #### Force Majeure Article 23 *Force majeure* *1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.* *2. Paragraph 1 does not apply if:* *(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or* *(b) the State has assumed the risk of that situation occurring* Force majeure applies when an unforeseeable, irresistible, and external event prevents a state from fulfilling its international obligations. This defense is only valid if the event makes compliance impossible, not merely more challenging or costly. The force majeure event must be beyond the state's control, and the state cannot have contributed to the situation. If the state had any means to prevent the event or its impact, the defense of force majeure may not be applicable. A natural disaster, such as an earthquake, might prevent a state from meeting a delivery obligation under a trade treaty. If roads and ports are destroyed, making transportation impossible, the state could invoke force majeure. However, if the state could have anticipated and mitigated some of the impacts through disaster preparedness, this defense might not fully absolve it of responsibility. #### Distress Article 24 *Distress* *1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care.* *2. Paragraph 1 does not apply if:* *(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or* *(b) the act in question is likely to create a comparable or greater peril.* Distress arises in situations where an agent of the state (such as a captain of a vessel or an aircraft pilot) breaches an international obligation to avoid serious harm to themselves or those under their care. For distress to apply, the breach must be the only way to safeguard human life, and it must be proportional to the risk faced. Distress typically applies in life-threatening situations, and the wrongful act must not cause greater harm than the peril it seeks to avoid. If a state's aircraft violates another state's airspace to avoid a storm or prevent a crash, the state might claim distress to preclude responsibility. This defense would only be valid if entering the foreign airspace was necessary to avoid a potentially fatal outcome, and the breach was minimal and limited to the emergency situation. Distress cannot be invoked if alternatives, such as returning to the original flight path, were available. #### Necessity Article 25 *Necessity 1.* *Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:* *(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and* *(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.* *2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:* *(a) the international obligation in question excludes the possibility of invoking necessity; or* *(b) the State has contributed to the situation of necessity.* Necessity is a narrow and controversial defense that applies when a state acts to protect an essential interest from a grave and imminent peril, even if doing so breaches an international obligation. For necessity to preclude wrongfulness, the state must demonstrate that: - The act was the only means to protect the essential interest, - The interest at stake was crucial to the state's or international community's survival, - The action did not seriously impair another state's essential interests. Because it is open to abuse, necessity is very strictly interpreted. Necessity cannot be invoked if the state itself created the situation of peril, or if it could have used less harmful means to protect its interest. ### 3. Consequences of State Responsibility When a state is found responsible for an internationally wrongful act, it is obligated to address the consequences of its actions under international law. These obligations are outlined primarily in the International Law Commission's (ILC) Articles on Responsibility of States for Internationally Wrongful Acts and focus on cessation, non-repetition, and reparation. Together, they provide a comprehensive framework for redressing wrongful acts and ensuring future compliance with international obligations. #### 1. Cessation of the Wrongful Act The first obligation of a responsible state is to immediately cease the wrongful act, halting any ongoing breaches of international law. Cessation is essential to prevent further harm and demonstrates the state's commitment to upholding its international obligations. This obligation includes taking necessary measures to bring its conduct into conformity with the breached obligation. For example, if a state is found responsible for breaching human rights, it must end the specific practices or policies causing the violation, such as ceasing arbitrary detentions or amending discriminatory laws. In the Nicaragua v. United States case, 1986 the International Court of Justice (ICJ) found that the United States had violated Nicaragua's sovereignty by supporting and funding paramilitary operations against the Nicaraguan government. The ICJ ordered the United States to cease its unlawful activities, which included financing, training, and supplying rebel forces known as the Contras. This obligation for cessation required the U.S. to stop all actions that constituted interference with Nicaragua\'s sovereignty. The court's decision reinforced the principle that states must halt ongoing breaches of international law as soon as they are found responsible, thereby preventing further harm. #### 2. Assurances and Guarantees of Non-Repetition To prevent recurrence, the state responsible for the wrongful act may also be required to provide assurances and guarantees of non-repetition. This is especially relevant in cases where the wrongful act was serious or likely to be repeated without clear preventive measures. Assurances of non-repetition involve formal commitments by the state that it will not repeat the act, while guarantees of non-repetition often involve concrete steps, such as implementing new laws, adopting preventive policies, or reforming institutional practices. This obligation emphasizes the state's duty to rebuild trust and to address the underlying issues that led to the breach, ensuring it does not happen again. The LaGrand case (Germany v. The United States, 2001, involved two German nationals, the LaGrand brothers, who were sentenced to death in the United States without being informed of their right to consular assistance as required by the Vienna Convention on Consular Relations. Germany sought assurances from the United States that similar violations would not occur in the future. The ICJ ruled that the U.S. was obligated to ensure compliance with the Vienna Convention in future cases, effectively providing guarantees of non-repetition. This included procedural safeguards to prevent similar breaches of consular rights. As a result, the U.S. had to implement changes to its procedures to guarantee that foreign nationals are informed of their consular rights upon arrest, thereby fulfilling its obligation of non-repetition. #### 3. Reparation for the Injury Caused A critical aspect of state responsibility is the obligation to make full reparation for any injury caused by the wrongful act. The ILC Articles outline three primary forms of reparation: restitution, compensation, and satisfaction. - Restitution: Whenever possible, the responsible state must seek to restore the situation to the condition it was in before the wrongful act was committed. Restitution is often the preferred remedy, as it aims to directly reverse the consequences of the breach. However, restitution is only feasible if it is materially possible and does not impose an undue burden on the responsible state. For instance, if a state wrongfully seizes property belonging to another state or its nationals, returning the property would constitute restitution. - Compensation: When restitution is not possible or does not fully address the injury, the responsible state is required to provide compensation. This includes covering any financially assessable damage caused by the wrongful act, such as economic losses, material damage, and even non-material harm in some cases. Compensation seeks to cover the direct costs of the injury, as well as lost opportunities or other measurable losses resulting from the wrongful act. - Satisfaction: In cases where neither restitution nor compensation can fully redress the injury, the responsible state may be required to provide satisfaction. Satisfaction generally involves symbolic measures to recognize the harm done, such as an apology, a formal acknowledgment of wrongdoing, or other gestures of goodwill. Satisfaction is particularly relevant in cases involving moral or reputational harm, where financial compensation would be insufficient to repair the damage. Satisfaction is typically the last resort and must be proportionate to the harm caused, aimed at restoring the dignity or integrity of the injured party. In many cases, the responsible state will provide a combination of restitution, compensation, and satisfaction to fully address the harm caused by the wrongful act. The form of reparation depends on the nature and scope of the injury, as well as the feasibility of various remedies. For example, in cases of environmental damage, a state might be required to restore the affected area (restitution), cover the economic losses to local populations (compensation), and issue a public apology or commitment to prevent future harm (satisfaction). In *Factory at Chorzów* (Germany v. Poland), 1928, the Permanent Court of International Justice (PCIJ) held that Poland's expropriation of a German-owned factory in Chorzów, without providing compensation, was unlawful. The court ruled that Poland was obligated to make full reparation, which could include restitution, compensation, or other forms of redress. Since restitution was not possible, the PCIJ ordered Poland to pay compensation equivalent to the factory\'s value, covering both the direct loss and the consequential economic harm. This case established the principle that full reparation should aim to "wipe out all the consequences of the illegal act," setting a foundational standard for state responsibility. The responsibility of International Organizations ------------------------------------------------- ### Introduction In the 1980's the collapse of the International Tin Council, an international organization created by States on the production of Tin, led the International Law Commission to work on the responsibility of International Organizations. The issue arose because the Tin Council, as an international organization, had incurred in many debts. At a specific moment in time, the Organization went bankrupt and those States who had lent money to the Tin Council approached the States who had joined the organization demanding for the money to be given back to them. The States argued that the Tin Council was the sole responsible of the decisions concerning the administration of the funds of the IO, so they had no responsibility in the losses of the IO. In 2000, the International Law Commission (ILC) began addressing the responsibility of international organizations, highlighting the growing need for legal frameworks to govern their actions. The ILC\'s work, culminating in the Draft Articles on the Responsibility of International Organizations, was a response to the complexities surrounding attribution of responsibility, particularly as international organizations operate across various jurisdictions with different levels of immunity. The ILC's Draft Articles aim to provide a legal foundation for understanding the accountability of IOs. The guidelines determine which actions are considered as carried out by an IO. Actions of personnel, member states, or third parties may be attributed to the organization if they act under its direction or control. An IO may be held responsible if it breaches obligations set forth by international law, such as violating human rights or environmental laws. If an IO is found responsible for a wrongful act, it must offer reparations, which can include restitution, compensation, or guarantees of non-repetition. However, the attribution of responsibility to international organizations is highly problematic since they often benefit from immunities and operate under complex mandates that complicate accountability. The unique structure of these organizations makes it difficult to determine who should bear responsibility when harm occurs. For instance, if an organization acts through a member state's personnel, questions arise about whether liability falls on the organization, the member state, or the individual. Moreover, the lack of clear accountability frameworks for administrative, non-judicial mechanisms further obscures paths for redress. This ambiguity persists in international law, creating obstacles for victims seeking justice and accountability from global bodies. ### Non-Judicial Accountability Mechanisms for International Organizations In response to accountability challenges, various non-judicial mechanisms have been developed to oversee the activities of international organizations. For example, the World Bank established an Inspection Panel in 1993, enabling affected communities to raise concerns about projects financed by the Bank. Similarly, the International Monetary Fund (IMF) created the Independent Evaluation Office in 2001 to assess its policies and actions independently. Other mechanisms, such as Claims Commissions and Claims Review Boards set up by the United Nations from 2004 to 2006, investigated allegations of misconduct, including cases involving alleged sexual abuse by peacekeeping personnel. These mechanisms, while non-binding, represent steps toward administrative accountability in the absence of judicial recourse. One of the most pressing issues in holding international organizations accountable is addressing sexual violence perpetrated by personnel involved in peacekeeping missions. Cases of sexual abuse by peacekeepers in regions like the Democratic Republic of Congo have sparked international outrage and raised questions about the UN\'s responsibility to prevent, investigate, and penalize such offenses. Despite disciplinary measures, such as enforced repatriation and dismissal, victims often receive little or no redress, and perpetrators frequently evade prosecution due to jurisdictional immunity. The cholera epidemic in Haiti, which followed the 2010 earthquake, serves as another stark example of accountability issues in international organizations. The UN was accused of introducing cholera to Haiti through negligent sanitation practices by peacekeeping forces. Although significant evidence linked the outbreak to UN personnel, the organization initially claimed immunity from legal liability, sparking a debate over whether the UN should bear responsibility for public health crises caused by its actions. ### Judicial Accountability of International Organizations While non-judicial mechanisms offer some degree of oversight, judicial accountability for international organizations remains limited and highly complex. Efforts to hold these organizations accountable through legal action face obstacles, primarily due to the immunity they often enjoy. This immunity can hinder victims from seeking redress in national or international courts, leaving judicial accountability mostly out of reach. Nonetheless, certain cases have attempted to push these boundaries, testing the extent to which international organizations can be held liable for their actions through judicial means. In instances where international organizations may be indirectly implicated in violations, there have been attempts to hold member states accountable at the national level. One prominent example is the case of the Dutch peacekeepers (\"Dutchbat\") in Srebrenica during the Yugoslav wars. Survivors of the 1995 Srebrenica genocide filed lawsuits against the Dutch government, alleging that Dutch peacekeepers failed to protect civilians under their care, leading to mass killings by Bosnian Serb forces. Dutch courts examined these claims, with some rulings holding the Netherlands partially responsible for the failure to prevent the genocide. At the international level, avenues for judicial accountability of international organizations are limited. For example, the International Court of Justice (ICJ) does not have jurisdiction to review or appeal decisions made by United Nations organs. This limitation was highlighted in the *Namibia Case*, where the ICJ clarified that it lacks powers to serve as an appellate body for UN decisions. Such restrictions underscore the challenges in holding international organizations accountable through judicial means, as international legal bodies typically do not have the authority to question or overturn decisions made by these organizations. Consequently, this gap in judicial review leaves victims with few avenues for recourse, reinforcing the need for stronger accountability frameworks. Several cases highlight this weakness in accountability mechanisms in international law: The case raised broader questions about the scope and limitations of international adjudication when the entity whose responsibility is being addressed is an international organization. Since Serbia and Montenegro were not members of the United Nations at the time of the events, the United Nations Charter did not apply to them, but to a previous state, which did not exist anymore. Therefore, the member states, part of NATO, had no obligations towards these states. There have been other cases. We can have, however, a system of control, where an international organization can control the actions of its institutions. The responsibility of individuals --------------------------------- ### Introduction Historically, international law focused on states as the primary actors. However, the 20th century marked a shift, recognizing individuals as subjects of international law with certain rights and responsibilities. Individual responsibility under international law refers to the accountability of persons---typically government officials, military leaders, and other high-ranking individuals---for international crimes. This concept aims to prevent impunity by holding individuals accountable for severe violations such as genocide, war crimes, crimes against humanity, and aggression. The creation of the Nuremberg and Tokyo Tribunals laid the foundation for modern international criminal law, which emphasizes that individuals, not only states, can be held accountable under international law. This principle has since been enshrined in various treaties and conventions, such as the Genocide Convention (1948) and the Geneva Conventions (1949). ### Mechanisms for Accountability There are several mechanisms exist to enforce individual responsibility under international law: #### The International criminal Court Established by the Rome Statute in 2002, the ICC prosecutes individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC is a permanent tribunal that functions as a court of last resort, prosecuting cases when national jurisdictions are unwilling or unable to act. #### Ad Hoc International Tribunals: **There have been two ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).** The ICTY was created in 1993. The ICTY prosecuted individuals responsible for war crimes, genocide, and crimes against humanity during the Yugoslav Wars. It successfully prosecuted leaders like Radovan Karadžić and Ratko Mladić. The **International Criminal Tribunal for the Former Yugoslavia (ICTY)** established in 1994, held individuals accountable for the Rwandan genocide. The tribunal\'s work included prosecuting leaders responsible for orchestrating acts of genocide, contributing to the body of international criminal law. #### Hybrid Tribunals Hybrid tribunals are courts that combine international and domestic law, often set up in the country where the crimes occurred. There are several examples: The **Special Court for Sierra Leone (SCSL), which** prosecuted individuals responsible for atrocities committed during Sierra Leone's civil war, including former Liberian President Charles Taylor. The **Extraordinary Chambers in the Courts of Cambodia (ECCC), a**imed at prosecuting senior leaders of the Khmer Rouge regime, the ECCC is a hybrid court involving both Cambodian and international judges. #### National Courts, based on universal juridiction Some national courts assert jurisdiction over international crimes based on universal jurisdiction or specific laws enabling them to prosecute such cases. National courts have prosecuted cases involving torture, war crimes, and crimes against humanity, contributing to the broader framework of individual responsibility. ### 3. Key International Crimes and Applicable Laws #### 1. Genocide: Defined by the Genocide Convention (1948) as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Individuals, including state leaders, can be prosecuted for genocide. The word "genocide" was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime. Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 149 States (as of January 2018). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed. The definition of the crime of genocide as contained in Article II of the Genocide Convention was the result of a negotiating process and reflects the compromise reached among United Nations Member States in 1948 at the time of drafting the Convention. Genocide is defined in the same terms as in the Genocide Convention in the Rome Statute of the International Criminal Court (Article 6), as well as in the statutes of other international and hybrid jurisdictions. Many States have also criminalized genocide in their domestic law; others have yet to do so. #### 2. Crimes against humanity The term "crimes against humanity" was used for the first time in 1915 by the Allied governments (France, Great Britain and Russia) when issuing a declaration condemning the mass killings of Armenians in the Ottoman Empire. However, it was only after World War II in 1945 that crimes against humanity were for the first time prosecuted at the International Military Tribunal (IMT) in Nuremberg. Both the Charter establishing the IMT in Nuremberg as well as that establishing the IMT for the Far East in Tokyo included a similar definition of the crime. Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so. Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States. The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime. #### 3. War Crimes Even though the prohibition of certain behavior in the conduct of armed conflict can be traced back many centuries, the concept of war crimes developed particularly at the end of the 19th century and beginning of the 20th century, when international humanitarian law, also known as the law of armed conflict, was codified. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare. Several other related treaties have been adopted since then. In contrast, the Geneva Convention of 1864 and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1977 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities. Both Hague Law and Geneva Law identify several of the violations of its norms, though not all, as war crimes. However there is no one single document in international law that codifies all war crimes. Lists of war crimes can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law. The 1949 Geneva Conventions have been ratified by all Member States of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. However, many of the rules contained in these treaties have been considered as part of customary law and, as such, are binding on all States (and other parties to the conflict), whether or not States have ratified the treaties themselves. In addition, many rules of customary international law apply in both international and non-international armed conflict, expanding in this way the protection afforded in non-international armed conflicts, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II. #### 4. Aggression Aggression in its essence has been defined as "state conduct that either initiates war against another state or brings about a situation in which the victim is (or may be) driven to war", see para. 1 of this piece. Up until the early 20th century the waging of war was not prohibited under international law and states could use war as a legitimate political instrument.\[1\] The Covenant of the League of Nations of 1919 signifies a shift, in which the member states obliged themselves (see article 10 of the Covenant) "to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League." In the Kellogg-Briand Pact of 1928, war as an instrument of national policy was general After World War II, the prohibition on the use of force by states was laid down in article 2 (4) of the Charter of the United Nations (UN) which prohibits the threat or use of force against the territorial integrity or political independence of any state. However, two exceptions were made: firstly, individual or collective self-defence by states involving the use of force is authorized by article 51 of the Charter and secondly, the use of force can be authorized by the UN Security Council as under article 42 of the UN Charter. The aforementioned provisions all relate to state conduct. Therefore, states would be held accountable for a violation. Aggression was first recognized as an international crime resulting in individual criminal liability under international law in the Charter of the International Military Tribunal at Nuremberg (IMT).\[2\] Its Article 6 (a) gave the IMT jurisdiction over crimes against peace, "namely, planning, preparation, initiation or waging of a war of aggression, or war in violation of international treaties, agreements or assurances, or preparation in a common plan or conspiracy for the accomplishment of any of the foregoing." This wording is duplicated in article 5 (a) of the Tokyo Charter. The IMT in its judgment of 1946 stated that the crime of aggression "\[...\] is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."