The Elimination of the Concept of 'Crime' from the ILC´s Draft Articles

Abstract: In the first reading of the Draft Articles on State Responsibility, the ILC adopted Article 19, which made a distinction between two categories of internationally wrongful acts&semic 'delicts' and 'crimes' of states. This article, however, proved to be highly controversial. Consequently, the ILC in the second reading decided to 'decriminalize' state responsibility, i.e. delete Article 19 and its accessories and thereby free the Draft Articles from a concept of criminal responsibility. On the other hand, the ILC made special allowance for the effects of violating peremptory norms and obligations erga omnes. This thesis examines whether the elimination of the concept of 'crime', has just led to terminological change in the law of state responsibility. The analysis is based on a textual comparison between the relevant articles in the Draft of 1996 (in which the concept of 'crime' is incorporated) and the Draft of 2001 (in which the concepts of peremptory norms and obligations erga omnes are incorporated). Basically, the analysis has been conducted from three main viewpoints. Firstly, it has been examined whether the rules which govern the basis of state responsibility in the new draft correspond with the rules which govern the basis of state responsibility in the old draft. Secondly, it has been investigated whether the legal consequences of 'serious breaches of obligations under peremptory norms' and breaches of obligations erga omnes correspond with the legal consequences of 'crimes'. Lastly, it has been studied whether 'serious breaches of obligations under peremptory norms' and breaches of obligations erga omnes correspond with 'crimes'. This thesis shows that there are indeed many similarities between the old and the new drafts. However, in the view of the fact that breaches of obligations erga omnes and 'crimes' do not coincide, it has been concluded that the replacement of the concept of 'crime' by that of 'serious breaches of obligations under peremptory norms' and obligations erga omnes has not just led to a 'cosmetic' change in the law of state responsibility.