Rebecca Hamilton (who, I’m pleased to say, has just joined my faculty, Washington College of Law, American University, in areas of international law and national security) has an article on international criminal law (ICL) appearing in the new issue of the Yale Journal of International Law, titled “State-Enabled Crimes” (SSRN link here). The article takes up a question that is gradually emerging as an important one in the ICL community: ICL is about individual criminal responsibility, and yet so many international mass atrocities are, in real terms, the work of a state or other "party" to a conflict, and not merely individuals subject to ICL.
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Hamilton thus engages an increasingly important question for ICL—one with implications for ICL's long-run evolution and its influence in international affairs. “State-Enabled Crimes” argues that the international legal system today bifurcates individual responsibility in ICL on the one hand and the state’s role in grave international crimes on the other. ICL does so in ways that, in effect, fail to recognize how the two are fundamentally tied together. The article proposes mechanisms by which to draw the two back together within the legal and institutional framework of ICL.
International crimes are committed by individuals, but many – from genocide in Rwanda to torture at Abu Ghraib – would not have occurred without the integral role played by the State. This dual contribution, of individual and State, is intrinsic to the commission of what I term “State-Enabled Crimes.” Viewing international adjudication through the rubric of State-Enabled Crimes highlights a feature of the international judicial architecture that is typically taken for granted: its bifurcated structure. Notwithstanding the deep interrelationship between individual and State in the commission of State-Enabled Crimes, the international legal system adjudicates the responsibility of each under two entirely separate structures. One side of the system deals with State responsibility, the other deals with individual criminal responsibility, and the latter is overwhelmingly dominant. The result is that a handful of individuals are punished as the State policies and practices that enabled them are left untouched, virtually assuring the perpetuation of such crimes by other individuals in the future. This Article calls for a move from a bifurcated to an integrated response, in which the existing (but under-utilized) law of State responsibility would be incorporated into criminal proceedings against individuals accused of State-Enabled Crimes. An integrated response is normatively desirable. It will more accurately reflect the way these crimes are committed, generating a fairer allocation of responsibility between individual and State. It will also better satisfy standard justifications for the adjudication of inter-national crimes than assessing individual and State responsibility in isolation. Finally, it is feasible in practice, and I offer one mechanism through which it could be implemented. (PDF 46 pp.)