Abstract
Core crimes, unlike other species of crimes, elicit State aggravated responsibility, which explains both why the State is failing to live up to its duties and justifies the external intervention of the international community. State aggravated responsibility is a consequential characteristic of the commission of core crimes especially when the State is involved as an active perpetrator. These consequences are so unique and conspicuous that they may safely be said to constitute characteristics in their own right, particularly since they (cumulatively) do not belong to other categories/species of crime (such as domestic crimes, transnational organized crimes and international crimes). When cumulatively considered, these consequential characteristics belong solely and exclusively to core crimes. To this extent, although they cannot be directly equated to State aggravated responsibility, these consequential characteristics constitute evidence of aggravated State responsibility. Inversely, the subsistence of State aggravated responsibility serves to corroborate the contention that the State is somehow involved, directly or indirectly, in the perpetration of core crimes. Individual criminal liability on one hand and aggravated State responsibility on the other hand, although distinct, can concur. The idea that the State is somehow involved, directly or indirectly, in the perpetration of core crimes has a parallel in State responsibility. Not only will the State be held responsible for not preventing the core crime and, once perpetrated, for not prosecuting and punishing it, but it will be faced with a continuing obligation to ensure that an individual suspected of having committed a core crime be submitted to prosecution.
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Notes
- 1.
Nollkaemper 2016.
- 2.
Oto Spijkers, lecturer of public international law at Universiteit Utrecht and senior researcher associate at the Netherlands Institute for the Law of the Sea, analysing Hoge Raad [Supreme Court], The Netherlands, Nuhanović v the Netherlands , 6 September 2013, Case No. 12/03324, during a series of guest lectures held at the University of Malta on 5–9 February 2018, which were entitled ‘Responsibility of the UN and troop-contributing State for acts of peacekeeping operations: The case of Srebrenica ’.
- 3.
Meloni 2010, p. 8.
- 4.
Bianchi 2009, p. 24.
- 5.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BiH v Serbia and Montenegro) , 26 February 2007, ICJ Rep. 2007, p. 43, para 173.
- 6.
ICTY Trial Chamber I, Prosecutor v Miroslav Kvočka et al., Decision on the Defence Motion Regarding Concurrent Procedures Before International Criminal Tribunal for the Former Yugoslavia and International Court of Justice on the Same Questions, 5 December 2000, Case No. IT-98-30/1, subsequently confirmed by the ICTY Appeals Chamber, Prosecutor v Miroslav Kvočka et al., Decision on Interlocutory Appeal by the Accused Zoran Žigić Against the Decision of the Trial Chamber I dated 5 December 2000, 25 May 2001, Case No. IT-98-30/1, para 17.
- 7.
Pellet 1999, p. 432.
- 8.
Marchuk 2014, p. 90.
- 9.
Kaczorowska-Ireland 2015, p. 460.
- 10.
Simpson 2009, p. 71.
- 11.
ICTY Trial Chamber, Prosecutor v Anto Furundžija , 10 December 1998, Case No. IT-95-17/1-T, para 142.
- 12.
van Alebeek 2008, p. 146.
- 13.
Wyler and Castellanos-Jankiewicz 2011, p. 400.
- 14.
Having been considered as excessive by some, it ‘contributes directly to limiting attribution of responsibility for genocide’ (Aquilina and Mulaj 2017).
- 15.
One must recall that States are often responsible for many kinds of wrongs (delictual acts ) which certainly do not constitute core crimes.
- 16.
Nollkaemper 2003, p. 636.
- 17.
Nollkaemper 2003, p. 638.
- 18.
ICJ, United States Diplomatic and Consular Staff in Tehran (USA v Iran) (Iranian Hostage Case), 24 May 1980, ICJ Reports [1980]. ICJ Reps. 3, cited by Nollkaemper 2003, p. 638, fn. 111.
- 19.
Nollkaemper 2003, p. 639.
- 20.
Pellet 1999, pp. 433–434.
- 21.
Boas 2010, p. 506.
- 22.
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Soler, C. (2019). The Juridical Consequences of Core Crimes: Individual Criminal Liability and State Aggravated Responsibility. In: The Global Prosecution of Core Crimes under International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-335-1_7
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