January 20, 2018

State-Enabled Crimes

Rebecca Hamilton, State-Enabled Crimes, 41 (2) Yale J. Intl. L. 102 (2016)

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.

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