Show Less
Restricted access

The Concepts of Proportionality and State Crimes in International Law

An Analysis of the Scope of Proportionality in the Right of Self-Defence and in the Regime of International Countermeasures and an Evaluation of the Concept of State Crimes


Christian Wicker

It is generally recognised in both literature and jurisprudence that the notion of proportionality constitutes a key requirement of self-defence and of countermeasures. The determination of the exact content of the proportionality principle is, however, very complex and controversial. In both areas questions such as ‘proportionate to what?’ or ‘what role does the objective of the response play?’ arise. Elucidation of the scope of proportionality in the two spheres in which it is most contentious is thus sought. Ever since the abandonment of former Draft Article 19 the term ‘State crime’ no longer exists. This study demonstrates that consequently a State can no longer commit an international crime. Yet it also shows that by applying more serious consequences to the commission of a serious breach of peremptory norms the idea behind the concept does add something valuable to the existing concepts of jus cogens and obligations erga omnes.
Contents: Proportionality in the right of self-defence – The relationship between jus ad bellum and jus in bello – Proportionate to what? – Proportionality in the law of international countermeasures – Determination of proportionality at two levels – The German principle of ‘Verhältnismäßigkeit’ – The concept of State crimes – Replacement of former Draft Article 19 by the present Draft Articles 40 and 41 – The concepts of jus cogens and obligations erga omnes.