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33.3 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Self-Defence
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35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law
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1 Responsibility and punishment in international law 1 Responsibility and punishment in international law
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(a) Civil law aspects and punitive attributes of State responsibility (a) Civil law aspects and punitive attributes of State responsibility
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(b) ‘Sanctions’ in international law: between coercion, reparation, and repression (b) ‘Sanctions’ in international law: between coercion, reparation, and repression
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2 Criminal responsibility and the international legal order 2 Criminal responsibility and the international legal order
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Further reading Further reading
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49 International Criminal Responsibility of the State
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Published:May 2010
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Extract
The term ‘international crime of State’ used by Roberto Ago in his draft article 19 on State responsibility was not novel.1 Moreover, neither the Special Rapporteur2 nor the International Law Commission3 suggested that a State’s responsibility for a ‘crime’ need necessarily be criminal. The use of such a term in codificatory text, however, foreshadowed an evolution of the law of responsibility and rekindled a tenacious controversy regarding the legal character of responsibility in international law. The notion of ‘international crime’ suggested that the institution of responsibility was to experience an evolution comparable to that of other legal systems in which, ‘originally conflated, civil and criminal responsibility [tended] to slowly differentiate themselves’.4
However, beyond the notion of ‘international crime’, Ago’s general approach, according to which a ‘wrongful act’ leads to new and different legal relationships5 constituted a radical innovation given the classical unitary theory which assimilated responsibility to the obligation to make reparation for injury caused. Among the new relationships resulting from any internationally wrongful act, and not only from international crimes, the Special Rapporteur included ‘the faculty to impose a sanction on the subject which has engaged in wrongful conduct’,6 thereby considerably broadening the functional field of responsibility in international law. The inclusion of ‘sanctions’ in the Draft Articles on State Responsibility among the circumstances precluding wrongfulness, as well as the use of the term ‘crime’, led to a rethinking of the possible criminalization of responsibility in international law to which the work of the ILC would lead. Similarly, during its study of certain consequences which should attach to the commission of an ‘international crime’, and sometimes also to ‘delicts’, the ILC envisaged different mechanisms the criminal or punitive nature of which was open to question.
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