Utilising the International Criminal Law Doctrine of Command Responsibility to establish State Responsibility

This thesis takes forward the application of the concurrence between individual responsibility and state responsibility in international law identified by Nollkaemper who noted that the findings with respect to individual criminal responsibility in international criminal law may be utilised in subsequent cases concerning state responsibility. Currently the emphasis is primarily on the utilisation of international criminal law to establish the individual criminal responsibility of actors in systemic international crimes. Although international criminal law has developed various methodologies in order to address such crimes the focus on the individual perpetrator does not adequately reflect the true nature of system criminality.
Despite the limited role of international responsibility with respect to such international crimes and the limited trial mechanisms available with respect to proceedings on an interstate basis the combination of the determination of state responsibility and individual criminal responsibility can serve to more adequately represent the true face of system criminality. In the Bosnia Genocide case the International Court of Justice relied almost exclusively on the evidence obtained in the course of criminal proceedings before the International Criminal Tribunal for the former Yugoslavia in its establishment of state responsibility. In that instance the provisions of the Genocide Convention with respect to state and individual responsibility were mirrored enabling the Court to readily apply the evidence which it received.
This study is concerned with responsibility, both individual criminal responsibility and state responsibility. It seeks to align command responsibility and state responsibility, linked as both are by their common purpose of the protection of the international community addressing state responsibility with respect to serious breaches of peremptory norms as a result of system criminality. As a unique form of criminal responsibility founded in and interpreted through the principle of state responsibility the processes by which command responsibility is established reflecting those utilised to establish state responsibility. This relationship provides both a theoretical and practical basis for the establishment of state responsibility for international crimes concerning state armed forces.