State Liability for Failure to Protect Others. Srebrenica Cases

Südosteuropa ◽  
2018 ◽  
Vol 66 (2) ◽  
pp. 245-271
Author(s):  
Isabelle Delpla
Keyword(s):  
Criminal Responsibility ◽  
Collective Responsibility ◽  
State Responsibility ◽  
Court Decisions ◽  
Legal Decisions ◽  
Failure To Protect ◽  
State Liability ◽  
Dutch Court

Abstract Over recent years, a number of legal decisions have been taken that represent real novelties in the field. They address state liability towards foreigners in a realm where immunity has long prevailed. Dutch courts have condemned the Dutch state for failure to protect Bosniacs after the fall of the enclave of Srebrenica in 1995. The novelty of these court decisions is most apparent when they are compared to the previous investigations and reports on the fall of the Srebrenica enclave, which had the intended or de facto effect of leaving aside state liability. This article focuses on this comparison. The decisions of the Dutch court represent a change with regard to a trend in which collective responsibility was reduced to a scarecrow argument, where state liability for genocide was limited to the obligation to address criminal responsibility, and where co-agency was a shield preventing the attribution of state responsibility. Not only do these court decisions sanction state liability, they also address the victims and even grant them reparations.

scholarly journals Die Staatenhaftung im Völkerrecht

2021 ◽  
Author(s):  
Sahar Moradi Karkaj
Keyword(s):  
International Law ◽  
Virtual World ◽  
Environmental Law ◽  
State Responsibility ◽  
Investment Protection ◽  
Conflict Situations ◽  
Information Operations ◽  
State Obligations ◽  
State Liability ◽  
The Relationship

The necessity for state obligations to compensate transboundary harm becomes particularly evident in the virtual world. International law is predestined to address this issue but faces challenges due to the private character of information operations. Against this background, the author analyses the relationship between the established institute of state responsibility for internationally wrongful acts and the concept of state liability for non-prohibited dangerous activities. The contours of state liability are primarily derived from environmental law, WTO law, and investment protection. It is shown that state liability offers solutions to novel conflict situations. The findings can potentially be applied in various liability regimes.

Challenges to Criminalizing State Responsibility for Genocide

Postgenocide ◽  
2021 ◽  
pp. 33-62
Author(s):  
Kevin Aquilina
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Individual Responsibility ◽  
State Responsibility ◽  
Criminal Courts ◽  
Judicial Authority ◽  
Corporate Criminal Liability ◽  
Individual Criminal Responsibility

This chapter shows that although often states are parties in a genocide enterprise, the centrality—and responsibility—of states for genocide does not receive attention commensurate with the severity of the problem. Indeed, genocidal states are not held criminally responsibility for genocide. Underscoring difficulties at proving state criminal responsibility for genocide, the analysis compares and contrasts individual criminal responsibility and state criminal responsible for genocide. Whereas in the former case the matter has been dealt with by domestic and international criminal courts and tribunals, in the latter case there is no international judicial authority which can try states for criminal responsibility. However, non-state corporate criminal liability, and evolution of this institute in international law, may provide some transferable lessons for state responsibility for genocide. The chapter highlights the nexus between individual responsibility and state responsibility, and the failures of international genocide law in establishing state responsibility for genocide.

7. State responsibility

2021 ◽  
pp. 116-138
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
International Organizations ◽  
Collective Responsibility ◽  
State Responsibility ◽  
Legal Obligation ◽  
The Core ◽  
Diplomatic Protection

This chapter discusses the international law of responsibility as primarily reflected in the 2001 International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. It opens in Section 7.2 with an overview of some of the core principles and elements of state responsibility for wrongful acts. Section 7.3 discusses the issue of state attribution before Section 7.4 examines joint and collective responsibility. Section 7.5 discusses the various circumstances that may preclude the wrongfulness of conduct otherwise in violation of a (primary) legal obligation. Section 7.6 looks into the consequences of state responsibility while Section 7.7 discusses who may be entitled to invoke state responsibility. Section 7.8 examines the rules on diplomatic protection and Section 7.9 provides a brief overview of the responsibility of international organizations.

Defences in the Law of State ResponsibilityA View from Jurisprudence

2020 ◽  
pp. 179-202
Author(s):  
Luís Duarte d’Almeida
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Legal Theory ◽  
Criminal Responsibility ◽  
Point Of View ◽  
State Responsibility ◽  
The Law ◽  
Cross Fertilization

Ongoing discussions among international lawyers on defences in state responsibility have close analogies with debates in two other fields: debates in general legal theory on defeasibility in law, and debates in criminal law theory (and philosophy) on the elements of criminal responsibility. The similarities are not surprising. But it is striking how little cross-fertilization there seems to have been. For jurisprudence and criminal law scholars have developed a number of points and distinctions that international law theorists working on defences should find helpful. This chapter illustrates these claims. Section 2 looks at defences from the point of view of general legal theory, and section 3 does the same from the point of view of criminal law theory, recommending specific solutions to particular problems. Section 4 then shows how these contributions can help to answer some persistent questions surrounding defences in the law of state responsibility.

Continued State Liability for Police Inaction in Assisting Victims of Domestic Violence: A Reflection on the Implementation of South Africa's Domestic Violence Legislation

2019 ◽  
Vol 63 (1) ◽  
pp. 53-77 ◽  
Author(s):  
Amanda Spies
Keyword(s):  
Domestic Violence ◽  
South African ◽  
Violence Against Women ◽  
The Social ◽  
Women's Lives ◽  
Failure To Protect ◽  
State Liability ◽  
Domestic Violence Legislation ◽  
Legal Understanding ◽  
The Impact

AbstractNow that it has been in operation for 20 years, it is necessary to reflect on the impact the South African Domestic Violence Act has had on women's lives. This article analyses this key legislation and the police's duty to ensure its proper implementation. It focuses on the reports of the Independent Complaints Directorate and Civilian Secretariat of Police, the bodies responsible for measuring police compliance with the act. The reports identify serious transgressions, highlighting the police's perception that domestic violence is a private affair with which it should not interfere. This perception plays a particularly subtle and destructive role in legitimizing, supporting and permitting violence against women. In focusing on key court decisions in which the state (police) was held financially accountable for the failure to protect women against violence, the author highlights the importance of challenging the social and legal understanding of women's experiences with violence in promoting a system that takes account of those experiences.

The Bosnia Genocide Case

2008 ◽  
Vol 21 (2) ◽  
pp. 411-428 ◽  
Author(s):  
C. F. AMERASINGHE
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
State Responsibility ◽  
Genocide Convention ◽  
Res Judicata ◽  
State Succession ◽  
The Individual ◽  
Law Of Evidence ◽  
International Law Commission

AbstractThe Bosnia Genocide case dealt with several important matters of international law, apart from the issue of responsibility proper for genocide. The Court began by addressing issues of state succession in order to identify the proper respondent. It then found that the objection to jurisdiction raised by the respondent was res judicata. It held that the Genocide Convention created state responsibility in addition to international criminal responsibility of the individual. The contribution of the judgment to the law of evidence, in particular with reference to the standard and methods of proof, is significant. Finally, the Court applied the codification by the International Law Commission of attribution in state responsibility to the situation before it in deciding that the genocidal acts subject of the case were not attributable to Serbia, while also holding that Serbia was, nevertheless, responsible for omitting to prevent genocide.

scholarly journals Kankinimo samprata tarptautinėje teisėje

Teisė ◽  
2009 ◽  
Vol 71 ◽  
pp. 7-24
Author(s):  
Romualdas Drakšas ◽  
Regina Valutytė
Keyword(s):  
International Law ◽  
Severe Pain ◽  
Criminal Responsibility ◽  
Definition Of ◽  
State Liability ◽  
Individual Criminal Responsibility

Straipsnyje nagrinėjama kankinimo samprata tarptautinėje teisėje: detalizuojami sudedamieji kankini­mo sąvokos elementai, atskleidžiamos jų turinio nustatymo problemos. Autoriai analizuoja, kas lėmė tarptautinėje teisėje vyraujančios kankinimo sąvokos, siejamos su tyčiniu specialaus subjekto veikimu ar neveikimu, kuriuo aukai sukeliamas stiprus fizinis ar psichinis skausmas ar kančia, nustatymą. Įvardijami kankinimo sampratos skirtumai, atsižvelgiant į tai, ar tarptautinės teisės nuostatomis reguliuojama in­dividuali asmens baudžiamoji ar valstybės, pažeidusios tarptautinius įsipareigojimus, atsakomybė. The article covers the analysis of the concept of torture in international law: it elaborates the elements of the definition of torture and deals with the problems of determination of their content. The authors analyze the factors that might have influenced the establishment of the definition of torture that prevails in international law and is associated with intentional conduct of a public officer causing severe pain or suffering, whether physical or mental. The article also identifies the differences in the concept of torture as a basis for individual criminal responsibility and state liability for infringement of international com­mitments.

Alcoholics and Public Drunkenness

1970 ◽  
Vol 16 (3) ◽  
pp. 238-254 ◽  
Author(s):  
Burr C. Hollister
Keyword(s):  
Criminal Responsibility ◽  
Common Law ◽  
Revolving Door ◽  
State Court ◽  
Court Decisions ◽  
Criminal Sanctions ◽  
Eighth Amendment ◽  
Federal Constitutional ◽  
Legal Defense ◽  
The U.S

The widespread problem of indigent alcoholics trapped in the "revolving door" of public intoxication arrests should be rem edied by construing alcoholism as a legal defense. The U.S. Supreme Court recently declined to issue a federal constitutional mandate requiring all fifty states to provide such a defense through the Eighth Amendment, but that decision does not fore close such a constitutional defense in the future if the proper factual situation reaches the court. Moreover, each state can remedy the incongruous imposition of criminal sanctions on helpless and sick alcoholics by creating a common-law defense of alcoholism to the charge of public intoxication. Such a de fense has substantial precedent to support it in the evolving mens rea standard of criminal responsibility increasingly relied upon in state court decisions. More important, common sense supports the creation of this defense to alter the continuing spectacle of skid-row alcoholics being punished for a condition— public intoxication—which they cannot control.

7. State responsibility

2019 ◽  
pp. 120-142
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
International Organizations ◽  
Collective Responsibility ◽  
State Responsibility ◽  
Legal Obligation ◽  
The Core ◽  
Diplomatic Protection

This chapter discusses the international law of responsibility as primarily reflected in the 2001 International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. It opens in Section 7.2 with an overview of some of the core principles and elements of state responsibility for wrongful acts. Section 7.3 discusses the issue of state attribution before Section 7.4 examines joint and collective responsibility. Section 7.5 discusses the various circumstances that may preclude the wrongfulness of conduct otherwise in violation of a (primary) legal obligation. Section 7.6 looks into the consequences of state responsibility while Section 7.7 discusses who may be entitled to invoke state responsibility. Section 7.8 examines the rules on diplomatic protection and Section 7.9 provides a brief overview of the responsibility of international organizations.

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