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This book offers a unique comparison between state and individual responsibility for international crimes and examines the theories that can explain the relationship between these two regimes. The study provides a comprehensive and systematic analysis of the relevant international practice from the standpoint of both international criminal law, and in particular the case law of international criminal tribunals, and state responsibility. The author shows the various connections and issues arising from the parallel establishment of state and individual responsibility for the commission of the same international crimes. These connections indicate a growing need to better co-ordinate these regimes of international responsibility. The author maintains that a general conception, according to which state and individual responsibility are two separate sets of secondary rules attached to the breach of the same primary norms, can help to solve the various issues relating to this dual responsibility. This conception of the complementarity between state and individual responsibility justifies co-ordination and consistent application of these two different regimes, each of which aims to foster compliance with the most important obligations owed to the international community as a whole.
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The Relationship Between State and Individual Responsibility for International Crimes
The Relationship Between State and Individual Responsibility for International Crimes By
Beatrice I. Bonafè
LEIDEN • BOSTON 2009
On the cover: Public Announcement of the Establishment of the Studium Iuris in Macerata in 1920 (detail). Fresco by Giulio Rolland, XIX Century. University of Macerata, Aula Magna. This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Bonafe, Beatrice I. The relationship between state and individual responsibility for international crimes / by Beatrice I. Bonafe. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17331-6 (hardback : alk. paper) 1. Criminal liability (International law) 2. International offenses. 3. Government liability. 4. Administrative responsibility. 5. Superior orders (Criminal law) I. Title. K5301.B66 2009 345’.04—dc22 2008051891
ISBN: 978 90 04 17331 6 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands
Contents Acknowledgments .................................................................................. List of Abbreviations .............................................................................. Introduction ...........................................................................................
ix xi 1
Part I General Approaches to the Relationship Between State and Individual Responsibility for International Crimes Chapter 1 The General Framework of the Relationship Between State and Individual Responsibility for International Crimes .............. 1. Clarifying Some Basic Concepts .................................................... A. Individual Criminal Responsibility .......................................... B. Aggravated State Responsibility ................................................ 2.