Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? While the repression of crime, especially that perpetrated by non-state actors, has traditionally been left to the internal law of states, most international jurists will point to the ancient rules of international law pertaining to piracy in support of the proposition that international law has always governed criminal activity by non-state actors. Today, these same jurists can point to article 25(2) of the Rome Statute of the International Criminal Court which provides for individual criminal responsibility of perpetrators without any reference to state affiliation. In light of the correspondence between these ancient and modern rules of international law, why is there such controversy over the question of the responsibility of non-state actors under international criminal law? In order to understand the controversy, it is essential first to recognize that Grotius’ condemnation of pirates as guilty of violating the law of nations had a very different legal character from the concept of individual criminal responsibility under the Rome Statute. For Grotius, the pirate was guilty of violating natural law, a body of law that bound individuals in the first place, and only by extension from this central case formed part of the law of nations applicable to states. Once the foundation of international law shifted from natural law to positivism, the focus of the international rules concerning piracy shifted from the individual to the state. Rather than focusing on individual responsibility, the rules of international law were understood to afford jurisdiction to all states to repress piracy. By the early 20th century, the natural law conception of the international legal system had receded to the vanishing point, so much so that delegates to the League of Nations could take the view that “inasmuch as only States were subjects of international law, individuals could only be punished in accordance with their national law.” The significance of the Nuremberg Tribunal’s revival of the concept of individual criminal responsibility can be fully appreciated only when seen against this state-centric backdrop.
Much ado about Non-State Actors: The Vanishing Relevance of State Affiliation in International Criminal Law,
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