Reavaliando a Dupla Responsabilidade por Crimes Internacionais

AutorBeatrice I. Bonafè
CargoUniversità di Roma, La Sapienza, Roma, Itália
Páginas19-36
Reassessing Dual Responsibility for
International Crimes
Reavaliando a Dupla Responsabilidade por Crimes Internacionais
Beatrice I. Bonafè
Università di Roma – La Sapienza, Roma, Itália
Abstract: the recent decision of the Internatio-
nal Court of Justice in the case between Croatia
and Serbia provides us with the opportunity to
reassess the relationship between state and in-
dividual responsibility for international crimes.
Although limited to the commission of acts of
genocide, the judgment shows that the concep-
tual framework explaining such relationship is
now well settled. However, the Court seems
to reach solutions that at times are not entirely
consistent with the premises of such conceptual
scheme. The purpose of the following analysis
is to test the general theoretical approach with
respect to a number of issues dealt with by the
Court in its recent decision.
Keywords: International Crimes. Individual
and State Responsibility. Genocide Cases.
Resumo: a recente decisão da Corte Interna-
cional de Justiça no caso entre Croácia e Sérvia
nos oferece a oportunidade de reavaliar a rela-
ção entre responsabilidade individual e estatal
por crimes internacionais. Embora limitada ao
cometimento de atos de genocídio, a sentença
demonstra que o quadro conceitual explicando
tal relação é ora bem definido. Contudo, a Corte
parece chegar a conclusões que por vezes não
são completamente consistentes com as pre-
missas de tal quadro conceitual. O objetivo da
análise é testar a abordagem teórica geral em
relação a alguns problemas lidados pela Corte
em sua recente decisão.
Palavras-chave: Crimes Internacionais. Res-
ponsabilidade Individual e Estatal. Casos Ge-
nocídio.
1 The General Approach Towards dual Responsibility
The Court was asked to rule on Croatia’s claim and Serbia’s
counter-claim both concerning the alleged commission of genocide by
Recebido em: 17/05/2016
Revisado em: 12/07/2016
Aprovado em: 18/07/2016
http://dx.doi.org/10.5007/2177-7055.2016v37n73p19
20 Seqüência (Florianópolis), n. 73, p. 19-36, ago. 2016
Reassessing Dual Responsibility for International Crimes
the other party1. Eventually, the Court rejected both: it found evidence
that material acts of genocide had been perpetrated, but was not provided
with sufficient evidence that those acts had been committed with the
required specific intent to destroy in whole or in part a particular group,
i.e., genocidal intent. One of the central issues of the case regarded the
relationship between state and individual responsibility for genocide
under international law. Indeed, certain facts at issue before the Court had
already formed the subject of proceedings before the International Criminal
Tribunal for former Yugoslavia (ICTY). And the Court had to clarify 1)
whether state responsibility could be assessed even though the individual
criminal responsibility of its organs for the same conduct had not been
previously established and 2) which probative value could be attributed to
the decisions of the ICTY, since no accused before the Tribunal had been
convicted with regard to the facts at issue before the Court.
As to the first question, the Court recalled what it had already
observed in the 2007 decision on the genocide case between Bosnia
and Serbia: “State responsibility can arise under the Convention for
genocide and complicity, without an individual being convicted of the
crime or an associated one”2. Therefore, a state can in principle be held
responsible for genocide even if none of its organs has been convicted
for genocide. In addition, the Court noted that: “State responsibility and
individual criminal responsibility are governed by different legal régimes
and pursue different aims. The former concerns the consequences of the
breach by a State of the obligations imposed upon it by international law,
whereas the latter is concerned with the responsibility of an individual
[…] and the resultant sanctions to be imposed upon that person”3. The
Court could not express more clearly the separation between the regime
of state responsibility and the regime of individual criminal liability
1 ICJ, Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Croatia v. Serbia), Judgment, 3 February 2015 [hereafter: 2015 Genocide
case], available on the Court’s website (www.icj-cij.org).
2 ICJ, Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment [hereafter:
2007 Genocide case], I.C.J. Reports 2007, para. 182.
3 ICJ, 2015 Genocide case, para. 129.

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