State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur?

The ICJ held in the recent Congo v. Belgium case that a former Minister for Foreign Affairs of a state may be subjected to the criminal jurisdiction of another state only in respect of acts carried out 'in a private capacity'. Therefore the question arises of whether international crimes committed by persons with the status of state officials are to be regarded as acts done 'in a private capacity'. This article argues that the answer to this question should be in the negative. Treating war crimes or crimes against humanity perpetrated by a state official as acts committed 'in a private capacity' would mean that such acts could not be attributed to the state at an international level. As a consequence, the state would not be responsible for those acts under international law.