Rethinking state criminality in international law : legal barriers and future prospects

Abstract

This thesis examines the historical development of state criminal responsibility under international law, from early attempts at codification to contemporary discourse on holding states accountable for international crimes. It traces foundational efforts like the Draft Code of Offenses against the Peace and Security of Mankind and the ILC's Draft Article 19 on "international crimes of states," analyzing factors behind Article 19's removal and arguments for retaining the concept's viability. Doctrinal analysis evaluates scholarly perspectives on whether states can fulfill criminal responsibility requirements, surveying procedural/substantive impediments to establishing state criminality. By systematically comparing and contrasting parallels/differences in attributes like subjects of responsibility, norms, procedures and consequences under domestic criminal law versus international responsibility frameworks, the feasibility of this proposed additional layer of accountability is assessed. Despite conceptual appeal, actualizing binding state criminal responsibility faces constraints at the current stage of international legal development, including difficulties in attributing intent/conduct for culpability determination, lack of enforcement mechanisms, risks to cooperation and compliance. Challenges reconciling criminal law concepts like nullum crimen sine lege with the decentralized nature of international law also arise. While state criminal responsibility remains theoretically viable, translating it into international judicial practice involves profound hurdles. Incremental developments in areas like collective sanctions for community interests provide foundations but further evolution is needed before comprehensive state criminal liability can crystallize under international law. However, the principle retains conceptual force and future shifts in international politics could engender greater regulation of state criminality.