ABSTRACT
The issue of delinquency and criminality perpetrated in the context of public governance presents another significant contemporary site for exploring the interaction of individual and organisational actors. Put simply, when confronting the ‘criminal’ or ‘delinquent State’, should responsibility for such conduct be attached to the State or to individuals exercising State authority? It may be observed that during the twentieth century three principal routes emerged towards such legal accountability: that towards the State as a criminal, that towards individuals as criminals, and that towards the State as a human rights violator. After 1945, the third of these routes tended to supplant the first, apparently putting the ‘criminal State’ in the back seat. It may be asked therefore whether the idea of the criminal State (as another kind of organisational agent) remains relevant or useful.
Employing the model of organisational agency worked out in Chapter 3, it is possible to identify some kinds of activity in relation to which it would be meaningful to impose criminal responsibility (as distinct from responsibility for the violation of human rights) on State actors. However, such a project needs to address a number of issues, or at least surmount some hurdles. First, it is necessary to address a body of scepticism in the field of international law regarding the idea of the State as a criminal actor, as evident for instance in the International Law Commission’s debate on the subject of State responsibility. Secondly, an important task is the working out of appropriate offence definitions in relation to the respective roles of the State and the individual in this context. In this respect, the emergence of the joint criminal enterprise (in relation to war crimes and crimes against humanity) as a basis for individual responsibility is a significant development. Thirdly, the desirability of legally disaggregating State and 157governmental actors (heads of State, governments, regimes and factions) for purposes of the allocation of responsibility should be considered. Two significant outcomes might then be observed: individual responsibility on the basis of joint criminal enterprise, and organisational responsibility on the basis of disaggregating State and government into different forms of governmental actor.
