Goettingen Journal of Without

International
(State)
LawImmunity,
5 (2013) No
2, 375-398
(Individual) Responsibility 375

Without (State) Immunity, No (Individual)

Responsibility

Giovanni Boggero*

Table of Contents
A. Introduction..........................................................................................376
B. Universal Civil Jurisdiction Is in Principle Admissible
Only Against State Officials..................................................................379
C. Functional Immunity Is not Specification of State
Immunity..............................................................................................382
D. Individual Responsibility of State Officials Differs
Greatly From State Responsibility........................................................ 388
E. Conclusion............................................................................................397

* Ph.D Researcher in Public Law at the University of Eastern Piedmont “Amedeo

Avogadro”. I would like to thank Professor Edoardo Greppi (University of Turin) and
Professor Alberto Oddenino (University of Turin) for the constant support and advice
they provided during the writing of this contribution. Any errors are of course my sole
responsibility. Comments welcome: giovanni.boggero@jp.unipmn.it.

doi: 10.3249/1868-1581-5-2-boggero
376 GoJIL 5 (2013) 2, 375-398

Abstract
The present article is a first attempt to add new theoretical arguments to the
rationale of State immunity. The author tries to assert that upholding State
immunity for human rights violations should not logically lead to the impunity
of State officials acting on behalf of the State. On the contrary, the right to
State immunity is an essential precondition for the individual perpetrators to be
prosecuted and convicted. To come to this conclusion, the author first finds that
universal jurisdiction is a tool to prosecute individuals and not States. On this
basis, he argues that functional immunity ratione materiae and State immunity
should be distinguished. This leads to the consequence that State officials’ and
State’s responsibility are of different nature.

“There is cogency in the view that unless responsibility is imputed

and attached to persons of flesh and blood, it rests with no one.”1

A. Introduction
In its judgment Jurisdictional Immunities of the State, the International
Court of Justice (ICJ) decided upon different submissions put forward by the
Federal Republic of Germany against the Italian Republic.2 In particular, the
Court stated that: (1) customary international law still requires that “a State
should be accorded immunity in proceedings for torts allegedly committed on
the territory of another State by its armed forces and other organs of State in
the course of conducting an armed conflict”;3 (2) customary international law
provides that “a State cannot be deprived of immunity by reason of the fact
that [its organs are] accused of serious violations of international human rights
law or the international law of armed conflict”,4 i.e. no human rights exception
to the rule of State immunity exists; (3) even violations of so-called jus cogens
norms cannot lead to a denial of State immunity, since no jus cogens exception to
the rule of State immunity exists under customary international law;5 (4) State
immunity cannot be denied on the basis of a so-called ‘last resort argument’

1
H. Lauterpacht, International Law and Human Rights (1950), 40.
2
Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, ICJ
Reports 2012, 99 [Jurisdictional Immunities of the State, Judgment].
3
Ibid., 135, para. 78.
4
Ibid., 139, para. 91.
5
Ibid., 142, para. 97.
 Without (State) Immunity, No (Individual) Responsibility 377

either, that is on the basis of the fact that all victims’ attempts to seek redress
from Germany had previously failed, because whether a State is entitled to
immunity is a question separate from “whether the international responsibility
of that State is engaged and whether it has an obligation to make reparation”.6
Despite the fact that the decision of the ICJ provides a partially correct
reconstruction of the general international law with regard to the immunity of
foreign States from jurisdiction, it nevertheless leaves itself quite open to criticism
according to which this view would merely defend the status quo and does not
offer any hope of a practical solution to the pressing demand for justice made
by the relatives of victims;7 it is, in other words, a defense based exclusively on
the risk that a possible denial of State immunity would set off a new diplomatic
crisis between the nations of the international community, or lead to the risk
of bankruptcy for the States against which jurisdiction has to be exercised for
purposes of reparation.8
The Court limits itself to expressing “surprise [...] and regret” at the fact
that “Germany decided to exclude from the scope of its national compensation
scheme most of the claims by Italian military internees on the grounds that
prisoners of war were not entitled to compensation for forced labour”9 and then
goes on to admit that it is not “unaware that the immunity from jurisdiction
of Germany in accordance with international law may preclude judicial redress
for the Italian nationals concerned”.10 Indeed, perhaps, it would have been
sufficient if in its final obiter dictum the Court had asserted more firmly the need
in any case for Germany to fulfill its obligations deriving from its acknowledged
international responsibility, or that, as Judge Yusuf suggested in his Dissenting
Opinion, it had specified, at the very least “an alternative remedy to the victims
of the breaches to which it has admitted”.11 The Court, however, merely points
out that certain categories of Italian victims are still entitled, even now, to
some form of reparation, but it does not go so far as to indicate the forms and

6
Ibid., 143, para. 100. Further on the judgment’s reasoning, see G. Boggero, ‘Senza
Immunità (dello Stato), Niente Immunità (Dell’Individuo)’, Diritto Pubblico Comparato
ed Europeo (2013) 1, 383, 383-403.
7
For example, M. Payandeh, ‘Staatenimmunität und Menschenrechte’, 67 Juristenzeitung
(2012), 948, 958.
8
I. von Münch, Rechtspolitik und Rechtskultur: Kommentare zum Zustand der Bunderepublik
Deutschland (2011), 31.
9
Jurisdictional Immunities of the State, Judgment, supra note 2, 142-143, para. 99.
10
Ibid., 144, para. 104.
11
Dissenting Opinion of Judge Yusuf, Jurisdictional Immunities of the State, Judgment, supra
note 2, 291, 306, para. 53.
378 GoJIL 5 (2013) 2, 375-398

costs, as this would have amounted to issuing a positive response to the Italian
counterclaim, which it had previously declared inadmissible.12
In the light of this act, which is both an expression of powerlessness and an
implicit invitation to the two States to engage in negotiations,13 the international
doctrine favorable to maintaining the principle of State immunity14 is called
upon to organize a broader defense of it, capable of justifying its applicative
consequences. Hereafter, this author will try to assert that upholding State
immunity does not logically lead to the impunity of the perpetrators of human
rights violations. On the contrary, the right to State immunity is an essential
precondition for them to be prosecuted and eventually punished. To come to
these conclusions it is necessary, whenever possible, to disentangle the individual
organ of the State from the State itself. In section B., the article will argue
that prudence of national courts in admitting universal civil jurisdiction against
State officials is the consequence of a widespread belief according to which
to admit universal civil jurisdiction against State officials cannot but lead to
admitting universal civil jurisdiction against the State itself. In reality, universal
jurisdiction, both criminal and civil, is not an institution established to exercise
jurisdiction against States but only against individuals; the corollary principle of
this false belief is to derive functional immunity of State officials directly from
State immunity. In section C., the article will argue that the two concepts are
different and should be distinguished. In terms of responsibility this means, as
laid out in section D., that the State cannot be held responsible in the same way
as individuals. The two types of responsibilities should also be distinguished.

12
Jurisdictional Immunities of the State (Germany v. Italy), Order of 6 July 2010, ICJ Reports
2010, 310, 321, para. 33.
13
Cf. Interview with J. Luther, ‘Moralische Wiedergutmachung für italienische NS-Opfer’,
Deutschlandradio (9 May 2012), available at http://www.deutschlandradiokultur.de/
moralische-wiedergutmachung-fuer-italienische-ns-opfer.954.de.html?dram:article_
id=147228 (last visited 31 January 2014). Immediately after proclamation of the decision,
the German Foreign Minister made a statement in which he stressed that Germany had
already honored its commitments in the past. Cf. ‘Außenminister Westerwelle zum IGH-
Urteil in Sachen Deutschland/Italien’, Press Release of the German Federal Foreign Office
(3 February 2012), available at http://www.auswaertiges-amt.de/DE/Infoservice/Presse/
Meldungen/2012/120203-IGH_ITA.html (last visited 31 January 2014).
14
However, many authors have long proposed reconsidering and even abolishing it. Among
these see, for example, H. Lauterpacht, ‘The Problem of Jurisdictional Immunities of
Foreign States’, 28 British Yearbook of International Law (1951), 220, esp. 236-237.
 Without (State) Immunity, No (Individual) Responsibility 379

B. Universal Civil Jurisdiction Is in Principle Admissible

Only Against State Officials
One of the main assumptions on which the Italian defense based its
claim of the existence of a jus cogens exception to the rule of State immunity
under international law was the practical need of repressing grave violations
of international humanitarian law and the law of human rights through the
exercise of universal jurisdiction. The proposition that the exercise of universal
jurisdiction for crimes against humanity and war crimes is a necessity lacks
any analysis of the customary nature of the universality of jurisdiction in civil
matters.
Universal jurisdiction is that institution founded on the co-operation
among States which makes it possible to prosecute particularly odious crimes,
regardless of where they occur and thus eliminating the nexus, considered
fundamental until a short time ago, between the State of the jurisdiction and the
State in which the crime in question effectively occurred. Overlooking, for the
moment, the problems deriving from the choice of crimes effectively punishable
by law,15 serious though they are, the difficulty of guaranteeing the exercise of
jurisdiction in a truly universal manner16 and the risks inherent in interfering
in the internal affairs of the State to which the individual charged belongs,
it seems important to point out that any exercise of universal jurisdiction has
always been ambivalent in nature, both criminal and individual at the same
time. It is, in other words, a tool that, though differing in degree depending
on the particular national legislation, is motivated by the need to prosecute
persons who are socially dangerous for the international community (hostes
humani generis), to ensure that certain acts will not happen again. It is not an

15
These include only grave breaches and serious violations of international humanitarian law
and law of human rights. As is evident from Art. 40 of the Draft Articles on Responsibility
of States for Internationally Wrongful Acts, Yearbook of the International Law Commission
(2001), Vol. II (2), 26, 29 [Draft Articles on State Responsibility], simple violations of jus in
bello and human rights are excluded, unless they are gross and systematic. Cf. P. Stammler,
Der Anspruch von Kriegsopfern auf Schadensersatz: Eine Darstellung der völkerrechtlichen
Grundlagen sowie der Praxis internationaler Organisationen und verschiedener Staaten zur
Anerkennung individueller Wiedergutmachungsansprüche bei Verstößen gegen humanitäres
Völkerrecht (2009), 125. Critical on this distinction is K. Oellers-Frahm, ‘Redress of War-
Related Claims by Individuals: The Example of the Italian Courts’, in U. Fastenrath et
al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma
(2011), 1055, 1066-1067.
16
L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (2005),
220 et seq.
380 GoJIL 5 (2013) 2, 375-398

institution through which to put sovereign States on trial as these, according to

international custom, cannot be held criminally liable, or, in the words of the
well-known maxim, societas delinquere non potest.17
As regards individual officials of the State, it is important to bear in
mind that the exercise of universal criminal jurisdiction against presumed
criminals has only been possible, up to now, when they no longer held their
official position in the State (as in the case of Pinochet I).18 In that case, State
immunity from jurisdiction could not be challenged, insofar as immunity was
denied in relation to acta jure imperii committed by a person no longer in office.
That is, once the government functions cease, the exercise of jurisdiction against
those who performed them is unable to endanger them, or to undermine the
independence of the State of which the individual was an official.19 Vice versa, as

17
See Prosecutor v. Tihomir Blaškić, Decision on the Objection of the Republic of Croatia
to the Issuance of Subpoena Duces Tecum, IT-95-14-T, 18 July 1997, para. 49. Cf. J.
Barboza, ‘State Crimes: A Decaffeinated Coffee’, in L. Boisson de Chazournes & V.
Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality:
Liber Amicorum Georges Abi-Saab (2001), 357, and J. Schaarschmidt, ‘Die Reichweite
des völkerrechtlichen Immunitätsschutz – Deutschland v. Italien vor dem IGH’, Beiträge
zum Europa- und Völkerrecht der Universität Halle-Wittenberg No. 5 (2010), 30-31. On
the opposition to the international law of the exercise of criminal jurisdiction against
States, see H. Fox & P. Webb, The Law of State Immunity, 3rd ed. (2013), 89 and the
Draft Articles on State Responsibility, Commentary to Chapter III, supra note 15, 110, 111
(paras 5-6). Contra J. Dugard, ‘Criminal Responsibility of States’, in M. Cherif Bassiouni
(ed.), International Criminal Law, Vol. 1, 2nd ed. (1999), 239, 246; A. Pellet, ‘Can a State
Commit a Crime? Definitely, Yes!’, 10 European Journal of International Law (1999) 2,
425, 433-434.
18
Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex Parte Pinochet
Ugarte, United Kingdom House of Lords, Judgment of 25 November, 3 WLR 1456 (H.L.
1998) [Pinochet I]. The reasoning followed in Pinochet I was not applied again in Jones v.
Saudi Arabia, United Kingdom House of Lords, Judgment of 14 June 2006, [2007] 1 AC
270 [Jones v. Saudi Arabia], as the denial of personal immunity for the former head of
the Chilean government had to rely on a specific exception to compact law (contained in
the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading
Punishments or Treatments, 10 December 1984, 1465 UNTS 85 [Convention Against
Torture]) and not as an ordinary exception of functional immunity.

19
Thus also Institute of International Law, ‘Resolution on the Immunity From Jurisdiction
of the State and of Persons Who Act on Behalf of the State in Case of International
Crime’ (2009), Art. III (2), available at http://www.idi-iil.org/idiE/resolutionsE/2009_
naples_01_en.pdf (last visited 31 January 2014), 2 [Institute of International Law,
Resolution on the Immunity From Jurisdiction]: “When the position or mission of any
person enjoying personal immunity has come to an end, such personal immunity ceases.”
Contra ILC, Second Report on Immunity of State Officials From Foreign Criminal Jurisdiction,
UN Doc A/CN.4/631, 10 June 2010, 19-20, para. 33 [Second Report on Immunity of
 Without (State) Immunity, No (Individual) Responsibility 381

demonstrated in the Arrest Warrant case, immunity ratione personae continues

to be guaranteed to individuals still in office.20 The risk of an abuse of universal
jurisdiction for matters of mere political rivalry between States is too great to
make it possible for them to reach an opinio juris favorable to denial of immunity
also for individual officials of the State still in office.
Even more uncertain is the exercise of universal civil jurisdiction which,
at the level of international custom, has not been judged up to now as a
fundamental corollary of criminal jurisdiction, due to the fact that it touches
on different, though possibly related, interests with respect to the criminal case.
Any convention on the subject of the repression of crimes against humanity, or
any special statutory court, starting with the Court for former Yugoslavia or the
Tribunal for Rwanda, fails to deal in any way with the problem of civil suits for
reparation of damages21 and, even if it does, as in the case of the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment of 1984,22 it
does so in very generic terms,23 which cannot be considered as expressing the
unequivocal will to declare the exercise of universal civil jurisdiction toward the

State Officials]: “These acts do not cease to be acts of the State because the official ceased
to be such and they therefore continue as before to be covered by immunity.” Thus also
A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some
Comments on the Congo v. Belgium Case’, 13 European Journal of International Law
(2002) 4, 853, 863.
20
Thus also relative to the former Chief of the Libyan State Muammar El Gaddafi, whose
incrimination was requested for acts of terrorism, before the French courts. The request
to exercise criminal jurisdiction was dismissed in 2001 by the Court of Cassation. Cf.
French Court of Cassation, Case No. 1414, Decision of 13 March 2000, 105 Revue
Générale de Droit International Public (2001) 2, 473.
21
Although some progress has been made (see Rome Statute of the International Criminal
Court, 17 July 1998, Art. 75, 2187 UNTS 3, 134-135), “it cannot be claimed with
certainty that according to the international law in force there is absolute correspondence
between the obligation of States to prosecute the perpetrators of international crimes
and their obligation to guarantee the rights of the victims to seek redress under their
respective legislation”. M. Frulli, Immunità e Crimini Internazionali: L’Esercizio Della
Giurisdizione Penale e Civile nei Confronti Degli Organi Statali Sospettati di Gravi Crimini
Internazionali (2007), 147 (translation by the author).
22
Convention Against Torture, Art. 14, supra note 18, 116. See, however, Committee Against
Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the
Convention: Conclusions and Recommendations of the Committee Against Torture: Canada,
UN Doc CAT/C/CR/34/CAN, 7 July 2005, 3 & 4, paras 4 (g) & 5 (f).
23
Never doubting the existence of the principle of the universality of civil jurisdiction is the
Trial Chamber of the First Instance of the International Criminal Tribunal for former
Yugoslavia in the decision Prosecutor v. Furundzija, which states that “the victim could
bring a civil suit for damage in a foreign court, which would therefore be asked inter alia
382 GoJIL 5 (2013) 2, 375-398

individual, much less toward the State.24 Only the United States, on the basis of
the Alien Tort Statute of 1789, recognizes the exercise of universal jurisdiction
on civil matters, although this is exclusively toward officials of the State and not
against the State itself.25
The extreme prudence of the national courts in admitting universal civil
jurisdiction against individuals, which – as Conforti claims – would be the
natural pendant of criminal jurisdiction,26 is based on the strong belief that the
civil responsibility of the individual official of the State always and inevitably
also implies a civil responsibility of the State.27 This conclusion derives from the
idea that functional immunity of State officials is specification of State immunity
(section C.) and that State officials’ responsibility in criminal and civil matters
overlaps with State responsibility (section D.).

C. Functional Immunity Is not Specification of State

Immunity
The exact relationship between the immunity of States and the functional
immunity of the individual officials of the State is, in this current stage of
international law, still up for debate. In its Milde decision, the First Criminal
Section of the Italian Supreme Court of Cassation accepted the majority theory

to disregard the legal value of the national authorising act”. Prosecutor v. Anto Furundzija,
Judgment, IT-95-17/1-T, 10 December 1998, 59-60, para. 155.
24
Thus also C. Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human
Rights Violations: The Position Under General International Law’, in A. Randelzhofer &
C. Tomuschat (eds), State Responsibility and the Individual (1999), 1, 11.
25
Alien Tort Claims Act 1789, 28 USC § 1350. On the limits of the exercise of universal civil
jurisdiction through the ATS see, among others A. Gattini, ‘The Dispute on Jurisdictional
Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?’, 24
Leiden Journal of International Law (2011) 1, 173, 186 and J. von Bernstorff, M. Jacob &
J. Dingfelder Stone, ‘The Alien Tort Statute Before the US Supreme Court in the Kiobel
Case: Does International Law Prohibit US Courts to Exercise Extraterritorial Civil
Jurisdiction Over Human Rights Abuses Committed Outside of the US?’, 72 Heidelberg
Journal of International Law (2012), 579.
26
B. Conforti, Diritto Internazionale, 8th ed. (2010), 211. The same opinion is also
expressed by R. van Alebeek, ‘National Courts, International Crimes and the Functional
Immunity of State Officials’, 59 Netherlands International Law Review (2012) 1, 5, 21. Cf.
Concurring Opinion of Judge Breyer, Sosa v. Alvare-Machain and Others, Supreme Court
of the United States, Judgment of 29 June 2004, Case No. 03-339, (2004) 542 U.S. 692,
760, 763: “Universal criminal jurisdiction necessarily contemplates a significant degree of
civil tort recovery as well.”
27
Critical of this position also Stammler, supra note 15, 124-125.
 Without (State) Immunity, No (Individual) Responsibility 383

in doctrine, sustained previously by that same court also in the Ferrini and
Lozano cases, according to which

“functional immunity [...] is the specification of what is the pertinence

of the states, as it responds to the need to prevent the prohibition
of charging foreign States from being overridden by acting against
the person through whom the activity is implemented. [...] [O]ne
must, then, agree with those who claim that if functional immunity
cannot find application, because the act committed is considered
an international crime, there is no valid reason to maintain the
immunity of the State.”28

It seems that this is a theory that, despite having the support of authoritative
experts in doctrine29 and being shared in case law,30 reveals shortcomings on
many levels. Above all, the theory whereby not granting immunity to the
officials of the State would be a way of getting around the prohibition to exercise
jurisdiction against the State is a logical non sequitur. This is shown by the fact
that, in practice, the States themselves have many times waived immunity for
individual officials, thereby implicitly admitting that the two immunities differ
in nature.31
As suggested also by De Sena32 and Balladore Pallieri33, the error thus
lies in wanting to establish, as a general rule, an almost mathematical equation

28
Milde, Italian Supreme Court of Cassation, Case No. 1072, Decision of 21 October 2008,
92 Rivista di Diritto Internazionale (2009) 2, 618, 626 [Milde, Italian Supreme Court of
Cassation]. In this sense also the Second Report on Immunity of State Officials, supra note
19, 58, para. 94 (b), which says: “State officials enjoy immunity ratione materiae from
foreign criminal jurisdiction, i.e. immunity in respect of acts performed in an official
capacity, since these acts are acts of the State which they serve itself.”
29
Thus, among others, also Fox & Webb, supra note 17, 269-271 and B. Conforti, ‘In
Tema di Immunità Funzionale Degli Organi Statali Stranieri’, 93 Rivista di Diritto
Internazionale (2010) 1, 5, 13.
30
Not last is the case of Jones v. Saudi Arabia (supra note 18). Cf. Opinion of Lord Hoffmann
in this decision (ibid., 291-306, paras 36-102).
31
For diplomatic agents other rules of immunity apply. Cf. van Alebeek, supra note 26, 12-
13.
32
P. De Sena, Diritto Internazionale e Immunità Funzionale Degli Organi Statali (1996), 35
et seq.
33
V. Balladore Pallieri, Diritto Internazionale Pubblico, 8th ed. (1962), 371.
384 GoJIL 5 (2013) 2, 375-398

between the actions performed as an official and the actions of the State.34 As
Frulli has shown, the intellectual framework of a similar concept of ‘collective
responsibility’ has a Kelsenian imprint: the actions of the official are not
attributable to the individual as such, but to the individual as an organ of the
State.35 The individual’s behavior should therefore generally be attributed to the
State and only as an exception, to the individual as well. This is a conclusion that
is also reached in the Third Report on Immunity of State Officials From Foreign
Criminal Jurisdiction of the International Law Commission (ILC), which,
citing the Condorelli brief of appearance in Djibouti v. France, claims that
“[s]uch acts, indeed, are to be regarded in international law as attributable to
the State on behalf of which the organ acted and not to the individual acting
as that organ”.36 This explains the aforementioned extreme caution used by the
courts in admitting civil jurisdiction against the individual State official, as it
could automatically imply the exercise of jurisdiction against the State on behalf
of which that official is acting. It is interesting to note how organicistic this
interpretation is. Even if it is obvious, in a general way, that “[a]ll rational action
is in the first place individual action. Only the individual thinks. Only the
individual reasons. Only the individual acts”37 and that therefore “States can
only act by and through their agents and representatives”,38 in the scenario just
described, the individual disappears and everything is attributed only to the
State.39

34

The Supreme Court of the United States in the case of Yousuf v. Samantar and Others,
Decision of 1 June 2010, (2010) 130 S. Ct. 2278, 2292, recognized the inapplicability of
the rules of the Foreign Sovereign Immunities Act (90 Stat. 2891) to the individual officials
of the State. This is an important step in view of a distinction between the two types of
immunity.
35
H. Kelsen, Principles of International Law, 2nd ed. (rev. & ed. by R. W. Tucker) (1967),
207.
36
ILC, Third Report on Immunity of State Officials From Foreign Criminal Jurisdiction, UN
Doc A/CN.4/646, 24 May 2011, 32-33, para. 58 (note 126) [ILC, Third Report on
Immunity of State Officials]; Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v. France), Verbatim Record of the Public Sitting held on Tuesday 22 January
2008, Doc CR 2008/3, 22 January 2008, 9, para. 23.
37
L. von Mises, Socialism: An Economic and Sociological Analysis [1932] (1981), 97.
38
Certain Questions Relating to Settlers of German Origin in the Territory Ceded by Germany
to Poland, Advisory Opinion, PCIJ Series B, No. 6 (1923), 22.
39
These concerns are also shared by B. Stephens, ‘Abusing the Authority of the State:
Denying Foreign Official Immunity for Egregious Human Rights Abuses’, 44 Vanderbilt
Journal of Transnational Law (2011) 5, 1163, 1179.
 Without (State) Immunity, No (Individual) Responsibility 385

The well-known case of Princz v. Federal Republic of Germany is a

good example in which the perspective of individual responsibility is entirely
overlooked and replaced by the holistic paradigm of collective guilt. In particular,
in the Dissenting Opinion in the second degree judgment, Judge Wald supports
the theory of the implied waiver of immunity by Germany, claiming that ‘Nazi
Germany’ could have realized that “it might one day be held accountable for its
heinous actions by any other state, including the United States”.40 Almost as if
those “heinous acts” had not been the work of several commanding individuals
and their various executors, but of an imaginary ‘Nazi Germany’ conceived as a
physical person capable of weighing the future consequences of its actions!
According to Hannah Arendt, the defense of Adolf Eichmann, for whom
immunity was denied, ratione materiae, by the Israeli Supreme Court, promptly
tried to prove the innocence of the defendant on an argument that we could
define as exquisitely Kelsenian, i.e. that Eichmann was nothing but a “tiny cog” of
the Third Reich.41 Eichmann was the incarnation of the subordinate bureaucrat,
a mere executor of orders from above, convinced that he did not have to answer
to himself and to others for his actions. It is the State – claimed the defense –
that ordered certain actions, and only it can be held responsible. Now, equating
functional immunity and State immunity, on the one hand, and superimposing
criminal and civil responsibility on the individual with the international liability
of the State, on the other, has the effect of legitimizing, without realizing it,
reasonings of this kind. The celebrated McLeod case is a textbook example of this
proposition: “[w]hether the process be criminal or civil”, said Secretary of State
Webster, clarifying the position of the United States in the controversy,

40
Dissenting Opinion of Judge Wald, Hugo Princz v. Republic of Germany, United States
Court of Appeals, District of Columbia Circuit, Judgment of 1 July 1994, (1994) 26 F.3d
1166, 33 ILM 1483, 1494, 1502 (para. 88) (emphasis by the author).

41
H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil [1965] (1975), 289.
Vasilij Grossman, in his novel ‘Everything Flows’, a ferocious testimony and an implacable
denunciation of Stalinism, had Soviet informers on trial speak these words: “Why on
earth do you want to accuse little fish like us? Start with the State, judge it. After all, our
guilt belongs to it, so judge it.” V. Grossman, Tutto Scorre (1987), 79 (cited in accordance
with the Italian edition; translation by the author).
386 GoJIL 5 (2013) 2, 375-398

“the fact of having acted under public authority, and in obedience

to the orders of lawful superiors, must be regarded as a valid
defence; otherwise individuals would be holden responsible for
injuries resulting from the acts of government, and even from the
operations of public war”.42

Along the lines of the historic McLeod case is the judgment, harshly
criticized by Cassese,43 on the Lozano case, in which the U.S. soldier responsible
for the death of the agent Nicola Calipari and wounding of the Italian journalist
Giuliana Sgrena at a checkpoint in Iraq, was not subject to criminal trial, also
on the basis of the qualification of the soldier’s act as coming within the terms
of acta jure imperii:

“[t]he rule of functional immunity is the natural corollary of the

principle, also customarily recognized, of the ‘restricted’ immunity
of the States of foreign jurisdiction for civil liability deriving from
activities of an official nature, jure imperii, materially performed by
its officials.”44

As Trapp clarifies, the ‘McLeod principle’ is thus “one of non-concurrence

of responsibility to the effect that when a State is responsible for conduct, the

42
Cf. McLeod, 20 November 1854, FO 83. See Letter of Mr. Daniel Webster to Mr.
Crittenden, 15 March 1841, 29 British and Foreign State Papers (1840-1841), 1139,
1141. During the rebellion against the British in Ontario in 1837, the Canadian rebels
occupied an island on the Niagara river, where they were aided by the Americans. To stop
the Americans from continuing to give aid to the rebels, the British invaded American
territory to destroy the ship (Caroline), they had been using to transport supplies and
munitions. A few years later, in 1840, an Englishman who had participated in that raid,
by the name of McLeod, was arrested while on a visit to New York. By explicit admission
of the American Secretary of State, “after the avowal of the transaction [...] authorized
and undertaken by the British Authorities, individuals concerned in it ought not [...] to
be holden personally responsible in the ordinary tribunals [...] for their participation in
it”. See Letter of Mr. Webster to Mr. Fox, 24 April 1841, 29 British and Foreign State Papers
(1840-1841), 1129, 1131.
43
A. Cassese, ‘The Italian Court of Cassation Misapprehends the Notion of War Crimes:
The Lozano Case’, 6 Journal of International Criminal Justice (2008) 5, 1077, 1087-1089.
44
Lozano Case, Italian Supreme Court of Cassation, Case No. 31171, Decision of 24 July
2008, 91 Rivista di Diritto Internazionale (2008) 4, 1223, 1232 (translation by the author).
 Without (State) Immunity, No (Individual) Responsibility 387

individual acting on behalf of the State will not be”.45

In this connection, it is also important to clarify that the interpretation
offered by a certain part of the doctrine and case law,46 claiming that the
functional immunity of the individual official should be denied and the
individual subject to criminal proceedings (as well as civil, if necessary), on the
basis of the qualification of grave violations of human rights as ultra vires acts is
equally unacceptable. This qualification, rejected by the predominant case law47
and also by Italy in the controversy on the Jurisdictional Immunities of the State,
lends itself to the objection on the basis of which rarely can acts of this nature be
committed ‘in a private capacity’. Rather, the use of an escamotage of this kind
seems useful as an indication or symptom of increasing sensitivity favorable to
the identification of the personal responsibility of the individual official, separate
and different from that of the State,48 also in case of the ‘official’ nature of the

45
K. N. Trapp, State Responsibility for International Terrorism: Problems and Prospects (2011),
96. As the Lozano case shows, and in contrast with Trapp’s premise, “the movement away
from the exclusive responsibility of states” (ibid., 99) is far from complete. Cf. Prosecutor
v. Tihomir Blaškić, Judgment on the Request of the Republic of Croatia for Review of the
Decesion of Trial Chamber II of 18 July 1997, IT-95-14-AR108bis, 29 October 1997, 110
ILR 607, 707-708, para. 38.
46
Cf. Joint Separate Opinion of Judges Higgins, Kooijmans & Buergenthal, Arrest Warrant
of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports
2002, 3, 63, 88-89, para. 85.
47
“It is [...] difficult to accept that torture cannot be a governmental or official act, since
under article 1 of the Torture Convention torture must, to qualify as such, be inflicted by
or with the connivance of a public official or other person acting in an official capacity.”
Jones v. Saudi Arabia, supra note 18, 286, para. 19.
48
See, e.g., Charter of the the International Military Tribunal, 8 August 1945, Art. 7, 82 UNTS
279, 288: “The official position of defendants, whether as Heads of State or responsible
officials in Government Departments, shall not be considered as freeing them from
responsibility or mitigating punishment.” This provision was later taken up in the Statues
of all the international tribunals established during the 20th century. In one decision,
the Tribunal of Nurnberg, quoting Art. 228 of the Versailles Treaty and an obiter dictum
in the case Ex Parte Quirin and Others, Supreme Court of the United States, Judgment
of 31 July 1942, (1942) 317 U.S. 1, reiterated that “[t]he authors of these acts cannot
shelter themselves behind their official position in order to be freed from punishment
in appropriate proceedings”. In Re Goering and Others, International Military Tribunal
(Nuremberg), Judgment of 1 October 1946, published in Trial of Major War Criminals
(1947), Vol. I, 171, 223 [In Re Goering and Others, International Military Tribunal].
For a criticism, C. Damgaard, Individual Criminal Responsibility for Core International
Crimes (2008), 98-105. In the Eichmann case, the Israeli Supreme Court denied the
functional immunity of the defendant insofar as “those who participated in such acts
must personally account for them and cannot shelter behind the official character of
their task or mission”. Attorney-General of the Government of Israel v. Eichmann, Israel
Supreme Court, Judgment of 29 May 1962, 36 ILR 277, 308, 309-310, para. 14. Cf.
388 GoJIL 5 (2013) 2, 375-398

actions committed.49
The question is not, in this case, in what capacity, official or otherwise,
the individual committed a certain criminal action, but simply whether he,
given a moral choice, decided to perform a grave violation of international
humanitarian law or human rights law. In following the doctrine criticized here,
Frulli thus suggests guaranteeing, in any case, immunity for acts intra vires.50
The risk of such a position is to partially identify individual-official activity with
State activity, in the fear that one could violate the doctrine of the Act of State.
Actually, for any type of criminal act, there is never a complete overlap between
the State’s activity and the activity carried out by the individual, considering
that judgment impinges, so to speak, on individual’s adherence to the act of
State and not on the act of State itself, and thus the exercise of jurisdiction
against the individual for jure imperii intra vires cannot be seen as an improper
interference in the internal affairs of the State, exactly as it is not in the case of
exercising jurisdiction against an individual for acta jure imperii ultra vires.

D. Individual Responsibility of State Officials Differs

Greatly From State Responsibility
It should be in the specific interest of those who appeal to an ethics of
principles and claim a greater role of the individual in international society to
reject the aforementioned abstractions of ‘specification’ and ‘collective guilt’,
holding the individual responsible for his actions even when he acts in the role
of State agent. To say it in the words of Cassese,

also the statement by Prof. C. Tomuschat at a hearing held on 12 September 2011 in the
case Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Verbatim
Record of the Public Sitting held on Monday 12 September 2011, Doc CR 2011/17, 27
(para. 12). [ICJ, Jurisdictional Immunities of the State, Verbatim Record of the Public
Sitting held on 12 September 2011].

49
As Akande and Shah point out: “Whether or not acts of state officials are regarded as
official acts does not depend on the legality, in international or domestic law, of those
acts. Rather, whether or not the acts of individuals are to be deemed official depends
on the purposes for which the acts were done and the means through which the official
carried them out.” D. Akande & S. Shah, ‘Immunities of State Officials, International
Crimes and Foreign Domestic Courts’, 21 European Journal of International Law (2010)
4, 815, 832.
50
Frulli, supra note 21, 57-58.
 Without (State) Immunity, No (Individual) Responsibility 389

“trials establish individual responsibility over collective assignation

of guilt, i.e., they establish that not all Germans were responsible for
the Holocaust, not all Turks for the Armenian genocide, nor all Serbs,
Muslims, Croats or Hutus but individual perpetrators. Victims are
prepared to be reconciled with their erstwhile tormentors, because
they know that the latter have paid for their crimes.”51

This is not dissimilar from the reasoning of the judges of the International
Court of Justice (ICJ) Shi and Vereschetin in their Joint Declaration on the
case of Bosnia Herzegovina v. Yugoslavia: “[t]here can be no reconciliation
unless individual guilt for the appalling crimes of the last few years replaces the
pernicious theory of collective guilt on which so much racial hatred hangs”.52
Vice versa, recognition of a criminal or civil responsibility of the State under
international law exposes States to the risk that the court will merely ‘use’ a
defendant – for whom, after the final condemnation, it does not even request or
obtain extradition53 – so that the indemnity is effectively paid exclusively by the
State of which he is a citizen.54
Pointing to the potential parallel between the responsibility of the State
and the criminal or civil responsibility of the juridical person, in particular
the corporation, typical of internal legal orders, serves no purpose.55 In
this connection, Posner and Sykes submit, indeed, that the international
responsibility of the State, in particular when aggravated by grave human rights

51
A. Cassese, ‘Reflections on International Criminal Justice’, 61 Modern Law Review (1998)
1, 1, 6.
52
Joint Declaration of Judges Shi & Vereshchetin, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro), Judgment, ICJ Reports 1996, 595, 631, 632; H. Shawcross, ‘Let the
Tribunal Do its Job’, The New York Times (22 May 1996), A17.
53
Seventeen defendants sentenced to life imprisonment for Nazi massacres have never been
extradited, including Milde. Germany has, in fact, refused repeatedly to arrest them. Cf.
N.N., ‘Stragi Naziste: 17 Ergastolani non Scontano la Pena’, La Stampa (29 May 2011),
available at http://www.lastampa.it/2011/05/29/esteri/stragi-naziste-ergastolaninon-scon
tano-la-pena-HV3Vvy6wzKK5igbqDg5tNL/pagina.html (last visited 31 January 2014).
54
Likewise, Gattini, supra note 25, 191: “It would be inequitable to make the prospect of
gaining civil damages from a foreign state dependent upon whether or not the individual
defendant still happens to be alive.”
55
Of a ‘legal person’ mention is made, for example, by J. Bröhmer, State Immunity and the
Violation of Human Rights (1997), 30. Cf. Barboza, supra note 17, esp. 365.
390 GoJIL 5 (2013) 2, 375-398

violations,56 resembles the vicarious responsibility of the corporation, by virtue of

the fact that the individual officials of the State, like the employees or workers
of the company, “will not bear the costs [...] and their personal assets may be
far smaller than the harm that they have caused”;57 moreover “[e]ven though
a bureaucratic entity does not maximize profit, it will often face a budget
constraint and will prefer not to waste resources”.58 Basically, what Posner and
Sykes are saying is that the institution of civil liability of the State is an efficient
mechanism for the prevention of international crimes because, on the one hand,
it is able to absorb the costs of the reparations (of war and other events) more
easily and, on the other, because it will force the democratic State that does not
want to dissipate resources publicis usibus destinata to exercise greater control
over its agents.59 These are theoretical analyses that do not take adequately into
consideration the fact that the incentives for a State to avoid expenditures to
which its taxpayers object may differ depending on the political class in each
case, as well as on the historical era. The same can be said for the real ability
of the democratic State to control its subjects effectively in order to prevent
the commission of international crimes. The authors themselves are skeptical of
the fact that “a prospect of reparations after the end of conflict will necessarily
discipline states during conflict”.60 A mechanism based on the civil liability of
the State as a life preserver in case of the insufficiency of private assets would risk
producing a moral hazard in the individual officials of the State who, aware of
being called upon to respond – in the worst cases jointly with the State of which
they are citizens and in the best (according to the ‘McLeod principle’) of not
having to respond at all – will actually have an incentive to commit violations of
international humanitarian or human rights law.61
Aside from these observations concerning the different nature of the State
as a subject of international law, with respect to the corporation, it should be
said that international law, and therefore also State responsibility, is neither civil
nor criminal, but sui generis, and this is made clear in the First Report on State
Responsibility of the ILC, mentioning Kelsen himself: “the law of international

56
Cf. B. I. Bonafè, The Relationship Between State and Individual Responsibility for
International Crimes (2009), 17.
57
E. A. Posner & A. O. Sykes, ‘Economic Analysis of State and Individual Responsibility
Under International Law’, 9 American Law and Economics Review (2007) 1, 72, 87.
58
Ibid., 89.
59
Ibid.
60
Ibid., 100.
61
Similar considerations are found in F. Rosenfeld, ‘Individual Civil Responsibility for the
Crime of Aggression’, 10 Journal of International Criminal Justice (2012) 1, 249, 261.
 Without (State) Immunity, No (Individual) Responsibility 391

responsibility is neither civil nor criminal, and that it is purely and simply
international”.62 The distinction between individual responsibility and State
responsibility is particularly clear if one considers that “the element of faute is
not a necessary condition to determine liability of a State under contemporary
international law”63 and that “the defenses for the law of individual responsibility
generally are wider”.64 This means that a State is sometimes responsible to
another under international law, even in the absence of a finding of the elements
of guilt or malice of the agent who is the author of the act,65 or in other words,
as Nollkaemper writes, “[t]he conduct of a State as a legal person is assessed
against an objective standard”.66 This discrepancy in the test of the two liabilities
is explained precisely in the light of the fact that under international law, the
responsibility of the State has an entirely different nature and is independent
of individual criminal and civil responsibility,67 because “[t]he State is in
international law not legally responsible for the act itself, but for its own failure
to comply with obligations incumbent upon it in relation to acts of the private
person”.68 Thus, “[t]he law of State responsibility belongs to a separate branch of
international law and does not depend on nor imply the legal responsibility of

62
ILC, First Report on State Responsibility, UN Doc A/CN.4/490/Add.1, 1 May 1998, 7-8,
para. 53. See also Kelsen, supra note 35, 196.
63
P. Dumberry, ‘The Controversial Issue of State Succession to International Responsibility
Revisited in Light of Recent State Practice’, 49 German Yearbook of International
Law (2006), 413, 418. Cf. also A. Nollkaemper, ‘Concurrence Between Individual
Responsibility and State Responsibility in International Law’, 52 International and
Comparative Law Quarterly (2003) 3, 615, 630.

64
Nollkaemper, supra note 63, 635.

65
Selmouni v. France, ECtHR Application No. 25803/94, Judgment of 28 July 1999, 26-27,
para. 87.
66
Nollkaemper, supra note 63, 617.
67
Thus also Stephens, supra note 39, 1180-1181. Cf. Opinion of Lord Hutton, Regina v.
Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet and
Others, United Kingdom House of Lords, Judgment of 24 March 1999, 38 ILM 581,
627, 640 [Pinochet III]: “This distinction between the responsibility of the state for the
improper and unauthorised acts of a state official outside the scope of his functions and
the individual responsibility of that official in criminal proceedings for an international
crime is recognised in Article 4 and the commentary thereon in the 1996 draft Report
of the International Law Commission.” The report mentioned here is the Draft Code
of Crimes Against Peace and Security of Mankind, Yearbook of the International Law
Commission, Vol. II (2) (1996), 17, para. 50. Similar conclusions are found in the Draft
Articles on State Responsibility, Art. 58, supra note 15, 30.
68
R. Jennings & A. Watts , Oppenheim’s International Law, Vol. 1, 9th ed. (1992), 501 (note
13).
392 GoJIL 5 (2013) 2, 375-398

individuals”.69
There is no intention here to propose doing away with the international
responsibility of the State for the commission of acta jure imperii in violation
of imperative norms,70 but only to stress the impossibility of superimposing
or juxtaposing71 two different types of responsibility, individual criminal and
civil responsibility, on the one hand, and the international responsibility of the
State, on the other. The latter remains firmly in place even in the absence of
the exercise of jurisdiction by a court.72 Indeed, on a closer look, determination
of the international responsibility of a State is not even one of the tasks of the
national courts73 which, on the basis of international law, are called upon to
judge only on the responsibility of a criminal and civil nature of individuals.
This, however, does not mean that starting from the same wrongful act it may
not be possible to postulate, in accordance with the provisions of the ILC,74

69
E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), 5.

70
Rather, as pointed out also in the Draft Articles on State Responsibility, Art. 7, supra note
15, 26, “[t]he conduct of an organ of a State or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the State under
international law if the organ, person or entity acts in that capacity, even if it exceeds
its authority or contravenes instructions”. Thus also Convention Respecting the Laws
and Customs of War on Land, 18 December 1907, Art. 3, 36 Stat. 2277, 2290, whereby
“[a State] shall be responsible for all acts committed by persons forming part of its armed
forces”. Only in the measure in which it is proven that the act committed by the official
agent of the State has a private nature or is committed by a subject in his position as a
private citizen, then it will not be possible to attribute the responsibility to the State to
which that individual belongs. Draft Articles on State Responsibility, Commentary to Art.
7, supra note 15, 46-47, paras 7-9. The occurrence of such a condition is unlikely in case
of war. Cf. Stammler, supra note 15, 44.
71
Contra Borsari, according to whom “the ontological jumble” between the responsibility
of the individual and the responsibility of the state would be “inevitable”. R. Borsari,
Diritto Punitivo Sovranazionale Come Sistema (2007), 444 (translation by the author).
72
Similarly Frulli, supra note 21, 160 who states: “We have to reiterate that, even if we
think the state cannot be brought to judgment before a civil court on the internal plan,
it is responsible for the actions performed by its organs acting ultra vires in violation of
international law” (translation by the author).
73
The Draft Articles on State Responsibility (supra note 15) do not clarify who has jurisdiction.
In general, we can say that the International Court of Justice (ICJ) can decide for the
cases in which it has jurisdiction, or otherwise other international courts that the State
has authorized by means of an agreement to resolve disputes on this subject.
74
ILC, Third Report on Immunity of State Officials, supra note 36, 32-33, para. 58: “[A]
ttributing to the State actions performed by an official in an official capacity does not
mean that they cease to be attributed to that official.”
 Without (State) Immunity, No (Individual) Responsibility 393

a dual responsibility or, better to say, a “dual attribution of responsibility”.75

Rather, the same international custom shows that “a limited number of acts can
lead both to State and individual responsibility”.76 The point is not, actually,
whether the State should or should not be charged with any responsibility, but
what type of responsibility should be attributed to it, or, whether it is acceptable
that an international custom should develop favorable to the recognition of the
criminal and civil responsibility of the State for international crimes.
This ontological jumble of different types of responsibilities77 derives
from an excessively holistic approach to reality and produces paradoxical
consequences. If, for example, Chile were effectively responsible for the atrocities
against the opposers of the regime, why the decision to try General August
Pinochet and why not sue the Chilean State for damages? Perhaps because, aside
from the fact that State immunity would probably have been recognized,78 it
would have seemed sinful more than twenty years after the wrongful deeds to
demand reparation from the Chilean taxpayers who, from the standpoint of
criminal law could not be said to be responsible for the crimes committed by
the government of General August Pinochet.79 The danger, in short, is that of a
paradoxical redistributive effect, or “churning”, as the Hungarian philosopher
Anthony de Jasay80 calls it, whereby in this particular case, those relatives of
the tortured victims who had not taken their case to court might in theory

75
Nollkaemper, supra note 63, 620.
76
Ibid., 618-619.
77
In ILC, Preliminary Report on Immunity of State Officials From Foreign Criminal
Jurisdiction, UN Doc A/CN.4/654, 31 May 2012, 5, para. 17, the different nature of the
two responsibilities is not made clear, claiming that “there could scarcely be objective
grounds for asserting that one and the same act of a an official was, for the purposes
of State responsibility, attributed to the State and considered to be its act, and, for the
purposes of immunity from jurisdiction, was not attributed as such and was considered
to be only the act of an official”.
78
Cf. Opinion of Lord Hutton, Pinochet III, supra note 67, 640: “Chile is responsible for
acts of torture carried out by Senator Pinochet, but could claim state immunity if sued
for damages for such acts in a court in the United Kingdom.”
79
Lord Hoffmann also grasps this contradiction in Jones v. Saudi Arabia observing that: “It
would be strange to say [...] that the torture ordered by General Pinochet was attributable
to him personally for the purposes of criminal liability but only to the State of Chile for
the purposes of civil liability.” Opinion of Lord Hoffmann, Jones v. Saudi Arabia, supra
notes 18 & 30, 299, para 68.
80
A. de Jasay, The State (1998), 254-266. Cf. the statement of Prof. Christian Tomuschat at
the hearing of 12 September 2011: “When talking about the responsibility of a State, one
really talks about the responsibility of a people, many members of which may also have
been the victims of the same régime that caused injury through breaches of international
394 GoJIL 5 (2013) 2, 375-398

have been required to indemnify, as taxpayers of the Chilean State, the victims
who had.81 As Barboza neatly sums it up: “[c]reating State Crimes would mean
to introduce a type of responsibility where the innocent are punished together
with the guilty”.82 Even Nollkaemper is aware of the problem and, for the cases
of international crimes committed “by a small group of leaders of a State”, he
wonders whether it is “still useful to strive for separate responsibility of the
state”.83 Actually, the manner in which Nollkaemper poses the question is not
entirely correct, if it is true that he himself, shortly after, says that “it would
be odd [...] to consider that a president of a state should have to be imprisoned
for many years, whilst leaving in place the structures that made possible and
facilitated his acts”.84 The international responsibility of the State remains secure
even in this case, therefore, until it has guaranteed a reparation which, in a
case like this, will consist of stopping the wrongful acts or in eliminating the
norms that authorize or facilitate those acts. What will be lacking, however, by
reason of the recognition of the principle of immunity, will be a civil or criminal
responsibility of the State.
In this connection, the words written by Hannah Arendt in 1963 still
apply today, that is

“a thing called collective guilt does not exist and much less is there a
thing called collective innocence. If this were not so, no one would
be guilty or innocent. Naturally this is not to deny that there is such
a thing as political responsibility. This, however, is independent
from that which can be done by an individual who belongs to the

law.” ICJ, Jurisdictional Immunities of the State, Verbatim Record of the Public Sitting
held on 12 September 2011, supra note 48, 27 (para. 12).
81
The potential clash between the person who commits the misdeed and the person who
is effectively called to respond in monetary and patrimonial terms is amplified, among
other things, following the succession between States, as in the case of the Third Reich and
the Bundesrepublik. This led to the proposal by Stern, to cut the cord of succession in case
of violations of the rules of jus cogens. B. Stern, ‘Responsabilité International et Succession
d’Etats’, in Boisson de Chazournes & Gowlland-Debbas, supra note 17, 327, 353 et seq.
Actually “the solution depends on the different factors and circumstances involved [...] on
the type of succession of States”. Dumberry, supra note 63, 419-420.
82
Barboza, supra note 17, 369.
83
Nollkaemper, supra note 63, 625.
84
Ibid.
 Without (State) Immunity, No (Individual) Responsibility 395

group, and therefore cannot be judged in moral terms, or subjected

to the scrutiny of a criminal court”.85

The responsibility of the State under international law will never be

either civil or criminal, but simply international. Even the International
Military Tribunal of Nuremberg was clear on this point, stating that “[c]rimes
are committed by men, and not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law
be enforced”.86 And in criminal procedures with civilians bringing charges, in
which a State is the defendant, it cannot be said that the substance changes.87
Quite the contrary, sometimes the civil reparation is ideally transformed into a
sort of fine, a ‘punishment’ to inflict on the State to which the official/executor
belonged.88
Following Nollkaemper’s reasoning, the exercise of jurisdiction against a
single individual may then serve also as a form of reparation to the victims, as
occurred, for example, in the Rainbow Warrior case.89 In this connection, the
International Court of Justice (ICJ) could, therefore, have ordered Germany to

85
Arendt, supra note 41, 297-298.
86
In Re Goering and Others, International Military Tribunal, supra note 48, 223.
87
Thus also Posner, & Sykes, supra note 57, 96, according to which “the distinction between
‘civil’ and ‘criminal’ penalties for corporations and states is a meaningless one”.
88
As emphasized also by Chiavario: “Behind the apparent battle ‘for damages’ demands
of authentic justice in broader terms often, and almost inevitably, make an appearance
and there may even be more or less admitted pressure to obtain revenge through the
public hand: while the former are perfectly understandable, the latter are certainly not
to be condoned.” M. Chiavario, Diritto Processuale Penale, Profilo Istituzionale (2007),
197 (translation by the author). On the undoubtedly more effective nature of the civil
procedure, rather than the criminal, toward a State, see Fox & Webb, supra note 17, 93.
Even the Military Court of Appeals of Rome, in its decision condemning Max-Josef
Milde, highlights the unquestionably “afflictive character” of the reparation imposed on
Germany. Milde, Military Court of Appeals of Rome, Decision No. 72/2007 (copy on file
with author). And effectively, the Italian Constitutional Court in its Decision of 14 July
1986, Case No. 184, Informazione Previdenziale 1987, 664 states that “it is impossible to
deny or consider unreasonable the fact that civil liability for an illicit act is able to provide
not only for the restoration of the property of the damaged party, but among other things,
at times, also and at least in part and additionally, may serve to prevent and punish the
illicit act, as it does in the case of reparation for damages unrelated to property resulting
from a crime. Alongside criminal responsibility, civil responsibility can very well fulfill a
preventive and sanctioning role” (translation by the author).
89
Nollkaemper, supra note 63, 636 and thereafter contra see ILC, Fifth Report on State
Responsibility, UN Doc A/CN.4/291 and Add 1 & 2, Yearbook of the International Law
Commission (1976), Vol. II (1), 3, 33, para 101.
396 GoJIL 5 (2013) 2, 375-398

fulfill its obligation as identified by the primary rules of international law, to

punish the individual officials of the State, authors of war crimes and crimes
against humanity against Italian civilians and military personnel, in particular
by making their extradition to Italy possible.90 In the past, in fact, there had
been some pronouncements by national and international tribunals with which
the principle of State immunity was saved while, at the same time, the exercise
of criminal jurisdiction and, in the United States, civil jurisdiction as well,91 was
guaranteed against the guilty parties. In this way, for example, it occurred for
the much-criticized Al-Adsani case to be heard, where immunity was recognized
for the State (Kuwait), but not ratione materiae for the individual officials of the
State, guilty of torture of the plaintiff in the suit. The English Courts gave the
applicant leave to serve the proceedings on the individual defendants.92 This is
justified on the basis of the fact that international custom does not envisage the
obligation to recognize the functional immunity from civil jurisdiction of the
individual State officials for grave violations of human rights.93

90

Nollkaemper, supra note 63, 638.
91

Stephens mentions a single case outside the United States, in which civil jurisdiction was
exercised against an individual official of the State, specifically in the Milde case. In it,
however, this choice seemed due more than anything else to the need to oblige the Federal
Republic of Germany to respond jointly with the defendant. After the charge relative to
the order of reparation by Germany following the decision of the ICJ had fallen, it could
be said that the decision of the Italian judges was a fortiori innovative. Cf. Stephens, supra
note 39, 1177 and on the Milde criminal case see also G. Boggero, ‘Giustizia per i Crimini
Internazionali di Guerra Nella Strage di Civitella?’, in Procura Generale Militare Presso
la Corte di Cassazione (ed.), Casi e Materiali di Diritto Penale Militare (2013), 277.
92
Al Adsani v. United Kingdom, ECtHR Application No. 35763/97, Judgment of 21
November 2001, 4, paras 14-15. Quite surprisingly, in the case Jones and Other vs. United
Kingdom the European Court of Human Rights decided – it is not clear how deliberately
– not to take into account what the English courts had held in the Al-Adsani Case and
applied the rationale of State immunity also to immunity ratione materiae. See Jones
and Others vs. United Kingdom, ECtHR Application No. 34356/2006 & 40528/2006,
Judgment of 14 January 2014, paras 199-215. See also P. Webb, ‘Jones v. UK: The Re-
Integration of State and Official Immunity’, EJIL: Talk! (14 January 2014), available at
http://www.ejiltalk.org/jones-v-uk-the-re-integration-of-state-and-official-immunity/
(last visited 31 January 2014).
93
Stephens, supra note 39, 1175 and Institute of International Law, ‘Resolution on the
Immunity From Jurisdiction’, Art. III (1), supra note 19, 2. According to Focarelli
there appears to be a tendency in act “to transplant the legal regime of functional
immunity operating in [...] [international tribunals] to the domestic sphere”. C. Focarelli,
International Law as Social Construct: The Struggle for Global Justice (2012), 388-389.
 Without (State) Immunity, No (Individual) Responsibility 397

E. Conclusion
The safeguard of fundamental human rights, in times of war as in times of
peace, cannot but pass through an exercise of universal jurisdiction, both criminal
and civil, against those really responsible for their violation: individuals. De lege
ferenda, therefore, the applicability of functional immunity for the individual
– aside from temporary immunity ratione personae and provisions of exception
to conventional rules – should not be recognized, whatever the act committed
by the accused and/or defendant, including acta jure imperii. The puissance
publique of the State would effectively remain immune and inappellable at the
jurisdictional level, while only the single commission of the ‘act of dominion’
by the individual would be subject to jurisdiction and judgment of criminal
and/or civil responsibility.94 Since there can be no superimposition between the
organ of the State and the State to which it belongs, there can thus also be
no application ex officio of immunity for the individual-organ as there is for
the State.95 Only the awareness that “a person and his conduct cannot be split
from each other” and that the latter “cannot be transferred to another person,
whether physical or moral”96 can persuade doctrine and jurisprudence of the
logical necessity to exercise criminal and civil jurisdiction for grave violations
of international humanitarian law and human rights law exclusively against
individuals while, however, holding firm to the right of immunity for States.97

94
Of the same opinion also Stephens, supra note 39, 1179: “Both the state and the official
can be held responsible for an act committed in the exercise of state authority, and an
official can be denied immunity even if the state is deemed to be immune.” And also:
“And in both situations, a decision to deny immunity to the individual is separate from
whether the State itself is immune—a distinction that reflects the different policy issues
underlying state and official immunity.” Ibid., 1182.
95
Thus also Frulli, supra note 21, 60.
96
Barboza, supra note 17, 364.
97
Also sharing the ratio of a choice of this kind would seem to be the case of C. I. Keitner,
‘Officially Immune?: A Response to Bradley and Goldsmith’, 36 Yale Journal of International
Law Online (2010), 1, 12: “National courts can, in appropriate circumstances, impose
legal consequences for such conduct. This is true even though the State might also bear
responsibility, and even though the State itself might be immune from suit in a foreign
court.” Similar conclusions appear also to be reached by the Rapporteur of the Netherlands
Society of International Law. Cf. M. M. T. A. Brus, ‘No Functional Immunity of State
Officials for International Crimes: A Principled Choice With Pragmatic Restrictions’,
Mededelingen van de Nederlandse Vereniging voor Internationaal Recht [Announcements
of the Dutch Society of International Law] No. 138 (2011), 37, esp. 64-65. See van
Alebeek, supra note 26, 34 (note 147) and Institute of International Law, ‘Resolution on
the Immunity From Jurisdiction’, Art. IV, supra note 19, 2, according to which the denial
398 GoJIL 5 (2013) 2, 375-398

of functional immunity is not of any effective prejudice “to the issue whether and when
a State enjoys immunity from jurisdiction before the national courts of another State in
civil proceedings relating to an international crime committed by an agent of the former
State”.