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A Genealogy of State Crime in International Law: Contrasting Criminological Perspectives
Abstract
In international public law, the concept of state crime has been extensively debated. For some international law commentators “[t]he concept of state responsibility for international crimes is juridically feasible and may be analyzed in terms of a criminal organization model or a corporate crime model” (Jørgensen 2000: 280); to others, “[t]he criminal state is juridically speaking a nonsense . . . The punishability of the state is both a legal and a practical impossibility.” (Drost 1959: 304). Although currently common legal understanding represents this notion as alien to the legal tradition, this term has a relevant place in the historical debates and development of international law. This paper discusses international law developments in contrast to criminological reflections relating to state crime, drawing attention to possible cross-references between these disciplines.
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“Only recently have criminologist studied state crime. Yet, state crime has been approached in a number of ways by a number of disciplines (i.e., criminology, history, political science, sociology).” (Rothe 2009: 1).
Question inspired by Feinberg (1990: 7).
Searle (1969, 1995), distinguishing between brute facts and institutional facts, assesses that the latter can exist only within human institutions (such as money or sentences), while brute facts exist quite independently of any institution capable of formulating constitutive rules of the form X counts as Y in C (Searle 2005: 11).
With this purpose, the ILC conformed a subcommittee on the matter. This organ submitted its 1963 and 1964 reports on the issue of state responsibility (UN ILC 1964: 126).