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This article argues that Article 19 of the Draft Convention on State Responsibility, first adopted in 1976, presents a number of substantial problems relating to the definition of crimes of state, the appropriate organ for making decisions on when a crime of state has been committed, and the consequences of such a crime. The International Law Commission, in seeking to adopt a series of articles spelling out the consequences of Article 19 during its 1995 and 1996 sessions, recognized those inherent difficulties. A controversial debate ensued. The purpose of this paper is to set out and clarify the issues involved in this debate so that the question of if and how the concept of 'crimes of state' should be accommodated in the new Draft Articles on State Responsibility may be effectively and conclusively answered.

The essential aim of the Special Rapporteur's Draft Articles for Part HI on the settlement of disputes arising in connection with counter-measures is to ensure that clear restrictions on the taking of counter-measures are agreed and met. This is to be achieved by affording to the States involved in the counter-measures the right to submit any resulting dispute to conciliation or, failing settlement by conciliation, to arbitration, or, failing settlement by arbitration, to the International Court of Justice. The question to be considered in this paper is how the intervention of the Security Council will affect this system for allocating responsibility. For, in principle, the Security Council could either authorize counter-measures or prohibit counter-measures. In either case the question will arise whether such a decision by the Council will be regarded as conclusive of the legality, or illegality, of the measures taken. There is an apparent illogicality in making the right of a State to take counter-measures subject to carefully-formulated conditions, but leaving the Security Council free to authorize institutionalized counter-measures, subject to no such conditions. It is this illogicality which has seemingly worried the Special Rapporteur. The question had, of course, been anticipated in Riphagen's earlier drafts, although not limited to situations of counter-measures and peaceful settlement. Article 4 of Part Two provides as follows