Wrongful Act

Wrongful Act

Introduction to Wrongful Act

To be guilty of a crime, a person must either have performed a voluntary physical act or failed to act when he or she had a legal duty to do so. In other words, there is no criminal liability for bad thoughts alone. Thus, a child may earnestly wish a parent dead and may even think about killing the parent. But even if the parent should coincidentally die, the child is not a murderer, provided that he or she took no action to bring about the parent’s death.

Most crimes are committed by a specific action-for example, the pulling of a trigger or the thrusting of a knife in murder, or the lighting of a fire in arson. Some crimes, however, are defined in terms of omission or failure to act. For example, it is a crime not to file an income tax return. A person who has a special relationship with another or has voluntarily assumed a duty to help another may be guilty of a crime if he or she fails to act. For example, a parent is obligated to rescue his or her child from danger and a lifeguard on duty must attempt to rescue a drowning swimmer if it is physically possible for the parent or lifeguard to do so. Although the duty to rescue a person who is in danger is limited, parents owe a duty to their young children and lifeguards to swimmers in their charge.” (1)

Responsability of States for Wrongful Acts

The 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts set out the
principles in this important field of international law. The ILC Articles are a combination of
codification and progressive development. Even though the ILC Articles have not been adopted
as an international convention, some of the provisions have been referred to by international
courts and tribunals as reflective of customary international law.

States are responsible to other States for their internationally wrongful acts. A State commits
internationally wrongful act when conduct consisting of an act or omission:

  • is attributable to the State under international law; and
  • constitutes a breach of an international obligation owed by that State to the injured State or the international community.

Therefore, if a dispute arises between two States, the first question is whether the offending State owed an international obligation to the injured State under either a treaty or under customary law. The second question is whether that obligation was breached by conduct consisting of either an act or an omission that is attributable to the offending State.

The rules on attribution are based on common sense. The conduct of an organ of the State is
attributable to the State because a State acts through its official representatives, such as its Head of State, Minister of Foreign Affairs, Ambassadors and government ministries and departments.

The official acts of these persons and organs are attributable to the State.The conduct of private
persons or private entities is generally not attributable to the State unless the State knew of the
conduct and failed to act in relation to that conduct when it had an international obligation to act.

However, the conduct of a person or entity empowered by the law of the State to exercise
elements of government authority is attributable to the State and a State may also ratify and
adopt the conduct of private persons or control their conduct in such a manner that it can be
attributed to the State.

A State is in breach of an international obligation when conduct attributable to it is not in
conformity with what is required by the obligation. A State may not rely on provisions of its
internal or domestic law as justification for failure to comply with an international obligation. The
responsible State is under an obligation to cease the wrongful act if it is continuing. It is also
under an obligation to offer appropriate assurance and guarantees of non-repetition, if
circumstances so require. In addition, the responsible State is under an obligation to make full
reparation for the injury – both material and moral – caused to the other State by the
internationally wrongful act.

The forms of reparation under international law are restitution, compensation and satisfaction.
The preferred form of reparation is restitution, which requires the State to re-establish the
situation which existed before the wrongful was committed. Insofar as the damage is not made
good by restitution, the State much pay compensation to cover the financially assessable
damage, including loss of profits insofar as it is established. If the injury cannot be made good by either restitution or compensation, the State must provide satisfaction, which may consist of
acknowledgement of the breach, an expression of regret, a formal apology or another appropriate remedy.

There are defenses available to the responsible State which preclude the wrongfulness of an act, including valid consent by the injured State, self-defence, force majeure, distress, necessity and valid countermeasures. The ILC Articles set out the requirements which must be met before these defenses can be invoked. Some of the provisions of the ILC Articles on these “defences” can be classified as “progressive development” rather than a codification of customary international law.

Elements of a Crime: the Wrongful Act

Resources

Notes and References

Guide to Wrongful Act

In this Section

Criminal Law Elements (including Wrongful Act and Mental Fault), Defenses to Crimes (including Insanity, Age, Intoxication, Duress, Mistake, Self-Defense and Entrapment) and Crime Parties (including Principals and Accessories).

Other Basic Elements of the International Law

International Legal Personality

This refers to the entities or legal persons that can have rights and
obligations under international law. Learn more about International legal personality here.

Sovereignty of States over Territory

It is the exclusive right to exercise supreme political authority over a defined territory and the people within that territory. Learn more about Sovereignty of States over Territory here.

Sources of international law (International Obligations)

These sources are listed in the Article 38(1) of the
Statute of the International Court of Justice. Learn more about sources of international law (International Obligations) here.

Jurisdiction of States

This section covers mainly the Principles of Jurisdiction, and Immunities from Jurisdiction.

The Role of International Court of Justice (ICJ)

It is the chief judicial organ of the United Nations, and has jurisdiction over disputes between all members of the United Nations. Learn more about the International Court of Justice roles here.


Posted

in

, ,

by

Tags:

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *