State responsibility
State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out.840 Nor
may those officials hide behind the State in respect of
their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to
them. The former principle is reflected, for example, in article 25, paragraph 4, of the Rome Statute of the International Criminal Court, which provides that: “[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under
international law.” The latter is reflected, for example, in
the well-established principle that official position does
not excuse a person from individual criminal responsibility under international law.841
(4) Article 58 reflects this situation, making it clear that
the articles do not address the question of the individual
responsibility under international law of any person acting
on behalf of a State. The term “individual responsibility”
has acquired an accepted meaning in the light of the Rome
Statute and other instruments; it refers to the responsibility of individual persons, including State officials, under
certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.
840 Prosecution and punishment of responsible State officials may be
relevant to reparation, especially satisfaction: see paragraph (5) of the
commentary to article 36.
841 See, e.g., the Principles of International Law recognized in the
Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal,
Principle III (footnote 836 above), p. 375; and article 27 of the Rome
Statute of the International Criminal Court.
143
Article 59. Charter of the United Nations
These articles are without prejudice to the Charter
of the United Nations.
Commentary
(1) In accordance with Article 103 of the Charter of the
United Nations, “[i]n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their obligations under any
other international agreement, their obligations under the
present Charter shall prevail”. The focus of Article 103 is
on treaty obligations inconsistent with obligations arising
under the Charter. But such conflicts can have an incidence on issues dealt with in the articles, as for example
in the Lockerbie cases.842 More generally, the competent
organs of the United Nations have often recommended or
required that compensation be paid following conduct by
a State characterized as a breach of its international obligations, and article 103 may have a role to play in such
cases.
(2) Article 59 accordingly provides that the articles cannot affect and are without prejudice to the Charter of the
United Nations. The articles are in all respects to be interpreted in conformity with the Charter.
842 Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional
Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 3; (Libyan
Arab Jamahiriya v. United States of America), ibid., p. 114.
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