Who bears responsibility when international law is violated? Until quite recently, all too often, the tragic answer was “nobody.” Before World War ii, the conventional wisdom among traditional public international lawyers was that, generally speaking, individuals were not subject to responsibility for even the most egregious violations of international law. Under certain circumstances, States could be held responsible, but they generally pleaded ignorance of their nationals’ most heinous acts. And corollary responsibility of States for war crimes was virtually unknown. Before the landmark war crimes trials at Nuremberg, a genocidal actor could claim he was “just following orders,” even while the head of State was claiming both ignorance and immunity. As a result, we were all members of an ironically named “international community” that was incapable of either preventing, or pursuing accountability, for the worst atrocities human beings can inflict upon one another.
The post-World War ii war crimes trials dramatically shifted the valence from impunity to responsibility. By holding both governmental leaders and direct perpetrators responsible for genocide and crimes against humanity, and rejecting the “just following orders” defense, the Nuremberg and Tokyo Tribunals dissolved the legal shields of the world that came before. Instead, these tribunals substituted the modern principle of duality of responsibility—that both States and individuals may incur responsibility for the most serious violations of international law.
Today, duality of responsibility has been accepted as a given and a major advance for modern international law, in terms of both legal substance and legal process. Substantive contemporary international law now recognizes the shared interests of the international community as a whole in protecting the human person from such acts as genocide and torture, which are prohibited in all places at all times. These are recognized as crimes erga omnes, against all, and those who commit them are treated as hostes humani generis, enemies of all mankind. As a matter of legal process, duality of responsibility multiplies the potential avenues for relief, so that individuals may be held criminally responsible under international law for violating these rules, while States simultaneously face responsibility before various fora for promoting such violations. The trend toward duality of responsibility in international law thus reflects an innovative substantive and procedural convergence among branches of international law that had previously been considered distinct: international human rights law, international criminal law, and the law of State responsibility.
While many have commented on the broad theoretical relationship between individual and State responsibility in international law, until now, surprisingly little has been written about the “technical” relationship between individual and State responsibility in relation to crimes under international law: how the rules of international law relevant to both individual and State responsibility overlap, intersect, and thread together to develop a tapestry of rules that operate effectively to redress these international crimes.
In this impressive volume, Dr. Thomas Weatherall fills that void with a richly detailed and comprehensive historical and jurisprudential analysis. Dr. Weatherall’s study builds on the transnational legal process framework to explain how national systems have come to respect international norms of great importance to the international community. He identifies two key features of the legal rules subject to duality of responsibility: first, their recognition by the international community as a whole as jus cogens norms from which no derogation is permitted; and second, the realization of these rules through their common internalization by members of the international community. In an earlier, thoughtful book, Dr. Weatherall likened such rules to a
Yet Dr. Weatherall’s current study focuses less on this utopian vision and more intently on its legal failure. He turns a sharp lens on the rules and mechanisms that operate when the process of dual responsibility breaks down—where crimes under international law are nevertheless perpetrated, as is often the case, in connection with the abuse of State power. The book canvasses the important and complex legal issues that must be faced by those who seek to achieve accountability for international crimes, and offers an invaluable practical resource for international human rights lawyers, international criminal lawyers, and public international lawyers both inside and outside of governments.
Dr. Weatherall’s book will provide an important tool in our collective fight against impunity for those responsible for international crimes. His words enjoy the credibility of a well-read British-trained international law theorist and scholar of global governance and diplomacy, who is currently a skilled practicing human rights lawyer for the United States Department of State. As someone who has worked closely with Dr. Weatherall in his governmental capacity, I was both delighted and inspired to understand more fully the deep intellectual and scholarly roots of his legal acumen. His academic yet practical, lawyerly yet humanistic book will be welcomed by both scholars and practitioners who seek to challenge the worst of the worst. By doing so, the worlds of theory and practice collaborate to advance responsibility for combatting violations of norms that strike at the very core of who we are as an international community.
Harold Hongju Koh3
New Haven and Oxford
November 2021
See, e.g., Harold Hongju Koh, How is International Human Rights Law Enforced?, 74 Indiana Law Journal 1397 (1999); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal 2599 (1997); Harold Hongju Koh, Transnational Legal Process, 75 Nebraska Law Review 181 (1996).
Thomas Weatherall, Jus Cogens: International Law and Social Contract (Cambridge: cup 2015).
Sterling Professor of International Law and former Dean (2004–09), Yale Law School; U.S. Assistant Secretary for Democracy, Human Rights and Labor (1998–2001); Legal Adviser (2009–13), Senior Advisor (2021–), Office of the Legal Adviser, U.S. Department of State; George Eastman Visiting Professor, Oxford University (2021–22).