State Immunity & Individual Responsibility in Int'l Law - Essay Sample

Introduction

In giving my opinion about the concurrence between individual responsibility and state responsibility in international law, it is essential first to consider the fact that states act through individuals. In legal terms, however, the acts of a state are not borne out of the act of the state, but rather out of the act of an individual. For instance, in a case between Congo v. Belgium, it was held by the International Court of Justice that a sitting Minister for Foreign Affairs has the immunity from criminal jurisdiction while outside his or her home country, and purity for acts they perform in a private or official capacity, whether such acts were committed during the term in office or before they assumed office (Spinedi, 2002). That ruling upheld both to crimes against humanity or a war crime. According to the court, a person ceases to enjoy such immunity after they stop holding public office.

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I think that such concurrence between individual responsibility and state responsibility is a good move by international law. The reasons for such an opinion is as listed below. First, treating a crime against humanity or a war crime as an act committed in private capacity is not only wrong in itself, but also could lead to a remedy that is more harmful than the wrong itself. Although a state official can commit an international crime acting in private capacity, most of the time, such an official will have committed the crime acting in his capacity as a state official.

Likewise, if international crimes could be considered as crimes committed by a state official in their private capacity, then the solution coming out of such a proceeding could be of more harm than the intended remedy. The implication of this is that the conduct of such an act at the international level cannot be attributed to the state, and that would make it difficult to declare the state's international responsibility for such an act. According to Article 5 of the International Law Commission, for an internationally wrongful act to be attributed to the state, the act must have been committed by a state official acting in the capacity of the state (Spinedi, 2002). It is, therefore, clear that such attribution of wrongs committed by an individual should be attributed to the state since the state as a subject cannot act on itself, but through its officials whom it has assigned duties to delegate.

I also find the concurrence appropriate through its provisions for double attribution, where both the state and the individual can be attributed to the act. The responsibilities of an individual do not automatically lead to the atomization of the state, but as stated by the ICL, the responsibility of individual state organs does not exclude the responsibilities of the state (Nollkaemper, 2003).

Conclusion

In summary, the concurrence between individual responsibility and state responsibility was a proper intervention by the International Court of Justice aimed at protecting the individual that act at the interest of their states. If state officials were to be prosecuted for the acts they perform on behalf of their states, then that would be unfair not only in itself but also to the states and the individuals. It is therefore right that a state is under the obligation to not subject organs of another state to its jurisdiction if the stated state had committed a crime, even after the individual who acted on behalf of the state in committing the crime has left office. The only exception should be when the stated individual acted in their private capacity and not on behalf of the state.

References

Nollkaemper, A. (2003). Concurrence between individual responsibility and state responsibility in international law. International & Comparative Law Quarterly, 52(3), 615-640. Retrieved from https://www.jstor.org/stable/3663330

Spinedi, M. (2002). State responsibility v. Individual responsibility for international crimes: Tertium non datur?. European Journal of International Law, 13(4), 895-899. Retrieved from http://www.ejil.org/pdfs/13/4/1566.pdf