3
and delicts), in codification of the international responsibility of the State, to
enshrinement of the jus cogens category in the law of treaties.7 With Article 19 of said
ILC Draft, two systems of responsibility would take shape: one for non-compliance with
obligations of crucial importance for the international community as a whole, and the
other for non-compliance with obligations of a lesser or less general importance.
“International crimes” would be the acts of an “especially grave nature” that affect
fundamental values of the international community, and the others –without the same
degree of gravity- would be “international delicts.”8 A new vision of the law of
international responsibility began to arise, taking into account basic values and the
needs of the international community as a whole.
8.
However, progress in this area has not been linear but rather –as often
happens- pendulous. It does not seem to me that the final Draft Articles of the ILC,
adopted in 2001, have done justice enough to the advanced conceptual vision of R.
Ago and to the concerns of G. Arangio-Ruiz. The fact that in its Articles on
Responsibility of States (2001) the ILC addressed details regarding the
“countermeasures,” as they are called (reflecting the most primitive aspect of
international law, that is, a new version of resort to reprisals),9 and that it set aside
and shelved, rather lightly, the concept of international crime or “State crime,” reflects
the world in which we live. Ubi societas, ibi jus. The relatively succinct treatment of
grave violations –and their consequences- of obligations under mandatory norms of
general International Law (Articles 40-41)10 in the ILC’s Articles on the Responsibility of
the States (2001) reveals the insufficient conceptual development of the matter up to
our days, in an international community that is still seeking a greater degree of
cohesion and solidarity.
II.
Criminalization of Grave Human Rights Violations
9.
The process of criminalization of grave human rights violations and that of
International Humanitarian Law11 has gone pari passu with the evolution of
contemporary International Law itself: the establishment of an international criminal
jurisdiction12 is viewed in our days as a component that strengthens International Law
7
United Nations, Yearbook of the International Law Commission (1976)-II, part II, para. 73, p. 122.
8
Cf. comments and examples in ibid., pp. 95-122.
.
.
9
.
And this new version of reprisals –the so-called “countermeasures”- constitute the chapter on use
(albeit legal) of force, and they should not be considered as an inevitable trait of the regime of "legal
liability"; Ph. Allott, "State Responsibility and the Unmaking of International Law", 29 Harvard International
Law Journal (1988) pp. 22-23.
10
.
Cf. comments in J. Crawford, The International Law Commission's Articles on State Responsibility,
Cambridge, University Press, 2002, pp. 242-253.
11
.
Cf. G. Abi-Saab, "The Concept of `International Crimes' and Its Place in Contemporary International
Law", International Crimes of State - A Critical Analysis of the ILC's Draft Article 19 on State Responsibility
(eds. J.H.H. Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter, 1989, pp. 141-150; B. Graefrath,
"International Crimes - A Specific Regime of International Responsibility of States and Its Legal
Consequences", in ibid., pp. 161-169; P.-M. Dupuy, "Implications of the Institutionalization of International
Crimes of States", in ibid., pp. 170-185; M. Gounelle, "Quelques remarques sur la notion de `crime
international' et sur l'évolution de la responsabilité internationale de l'État", Mélanges offerts à Paul Reuter Le droit international: unité et diversité, Paris, Pédone, 1981, pp. 315-326; L.C. Green, "Crimes under the
I.L.C. 1991 Draft Code", 24 Israel Yearbook on Human Rights (1994) pp. 19-39.
12
.
Including both the decisions of the Security Council of the United Nations to establish the ad hoc
Tribunals for the former Yugoslavia in 1993, and for Rwanda in 1994 (cf., on the former, v.g., K. Lescure, Le
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