A Comparative Landscape of the Criminal Liability of States

Full text

1
Amine Benabdallah
ISJPS / Paris 1
LIER-FYT/EHESS
amine.benabdallah@univ-paris1.fr
A Comparative Landscape of the Criminal Liability of States
In his lecture on Moral Personality and Legal Personality, F.W Maitland tells us the following
story: “Lately in the House of Commons (in 1904) the Prime Minister (Mr Balfour) spoke of trade
unions as corporations. (…) a distinguished lawyer (…) interrupted him with ‘The trade unions are not
corporations.’ ‘I know that’ retorted Mr Balfour, ‘I am talking English, not law.’ A long story was
packed into that admirable reply “
1
.
Far from the promise of a long and rich history of the corporation and the State, I will focus solely on
the criminal liability of the latter; it is an opportunity to single out the peculiarity of a specific
compound word, State-Crime. For instance, if I were to speak about State crimes committed by France,
I would be talking in English, not law. This fundamental divide between facts and norms or simply
between everyday language and legal language participated in my choice of sketching a landscape,
instead of drawing a map or drafting an exhaustive study. According to geographer Yves Lacoste, "The
landscape is fundamentally characterized by sliding scales and masked spaces that depend on the place
of observation. The same space may have different landscapes depending on the points from where it
is observed”
2
. Hence, objects may appear very clearly in the foreground while the background remains
blurry until a shift of perspective. So, this presentation is limited in its object and the comparison at a
small scale. I sketch it horizontally between two domestic legal systems, two States, France and
Belgium and do not offer a vertical comparison with the international order, for it does not know of
the criminal responsibility of the State. Thus, in its ruling of 26 February 2007, the ICJ stated that
“International law does not recognize the criminal responsibility of the State and I would add that a
long story is again packed into that reply
3
.
This comparative landscape aims to explore two distinct situations: France with the exclusion of the
criminal liability of the State and Belgium where it became part of the penal code in July 2018. Since
it is too soon to assess the Belgian application of the law, I then use these two models to understand
the logic of a specific French case in administrative law (Hoffman-Glemane), a hard case, about the
State’s responsibility and complicity in the Holocaust. Next, I will shift perspective, leave the realm of
1
F.W Maitland, “Moral Personality and Legal Personality” in State Truth and Corporation, Cambridge, Cambridge
University Press, 2003, pp. 62-74, p. 63.
2
Jean Yves Lacoste, “ A quoi sert le paysage ? Qu’est-ce qu’un beau paysage”, Hérodote, n°7, 3ème trimestre 1977, p.16.
When not specified otherwise, all translations are done with the help of Deepl then corrected by me.
3
International Justice Court, Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, § 170.

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statutes, and enter the domain of public management, of the day-to-day life of the State. There, I hope
to find fragments of the answer to my main question, could the criminal liability of the State put an
end to the techniques that ensure its impunity?
I. A comparative landscape:
A. An exclusion of the State criminal liability (France)
The French Criminal Code provides in its article 121-2 that "legal entities, to the exclusion of the State,
are criminally liable (...) for offences committed on their behalf by their bodies or representatives. “The
criminal liability of the French State is then inexistent both in the international and the domestic order,
without prejudice to the existence of an international responsibility and an administrative or civil one.
The initial line of questioning could be: is it highly problematic? Could we say that consequently,
France is not really under the rule of law?
I outline here three key questions and issues at stake:
1- If other legal entities are criminally liable, is the principle of equality between persons under the
law fully realised in the French legal order?
2- Would a criminal investigation be more effective than administrative or civil litigations? Would it
have material means and legal prerogatives that are inaccessible otherwise? Would this criminal
liability be a decisive step towards better accountability?
3- Furthermore, is the absence of criminal liability a form of impunity? Impunity is defined by the
United Nations as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to
account (…) since they are not subject to any inquiry that might lead to their being accused, arrested, tried
and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims”
4
. Here
impunity is understood as a differentiated legal treatment of a fact that creates the impossibility of
an adequate legal qualification. Impunity is paradoxically a legal technique as it can prevent the
enforcement of law thanks to legal means. It falls within the broader field of what the legal historian
Yan Thomas calls a "juridical operation “. He writes that it does not” consist of imposing law upon
facts, which would be unthinkable and impossible. Rather, the juridical operation is an exercise in
reconfiguration: it remodels the facts to qualify them to make them fit into the practical value
judgement it imposes”
5
. This mechanism is of utmost importance in this landscape and acts as a
potential and important limit to the effectiveness of the State's criminal liability.
4
United Nations, Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity,
Definitions: A, 2005.
5
Yan Thomas, “Legal History for Historians: A Presentation” in Legal Artifices: Ten Essays on Roman Law in the Present
Tense, translated by Chantal Schütz & Anton Schütz, Edinburgh University Press, pp. 8-9.

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B. A criminal liability of the State (Belgium)
The international situation of Belgium is the same as the French one yet since 2018, criminal
proceedings are possible against the Belgian State. The provisions of the Criminal Code are as of July
11, 2018:
Article 5: Every legal person is criminally liable for offences which are intrinsically linked to the
achievement of its object or the defence of its interests…
Article 7bis: As regards to Federal State (…) only a simple declaration of guilt may be pronounced, to
the exclusion of any other penalty.
According to Professor Franklin Kuty, “the pronouncement of a simple declaration of guilt may be
considered as the judicial affirmation of guilt that makes possible to establish criminal responsibility
and civil liability (...) This formulation is unfortunate because it suggests that a mere declaration is
already a punishment”
6
. Is the declaration of guilt a punishment? Besides, the principle of equality
under the law seems still partially harmed by these legal provisions. For instance, the declaration of
guilt is not meant to be publicised, to mutate into an official declaration of criminal responsibility. In
a way, the Belgian State is still immune, this time not by exception (which is the absence of a legal
ground for incrimination) but by exemption as it is not facing the same punishments as other legal
entities, for instance, fines
7
.
This critic was central in a motion filed for the annulment of the law before the Belgian constitutional
court. In its decision of 14 May 2020, the court opposes the argument by quoting the Belgian Council
of Ministers “As far as the budget is an act by which the annual revenues and expenses of the legal person of
public law are foreseen and authorized, these forecasts would necessarily be undermined in the event of the
imposition of a fine that could not be foreseen "
8
. Nevertheless, this law opens a door that is beyond the
scope of the foreseeable. For certain crimes, time is central to discovering their existence, collecting
evidence, and seeing through the fog of war and the secrecy of the State.
Thus, Belgium as a State is criminally liable, it exposes itself to linked criminal and civil proceedings
that are not subject to any statutes of limitation notably for the crimes of genocide, crimes against
humanity and war crimes
9
. If this law lasts in time, it means that since 11 July 2018, Belgium is
perpetually liable to criminal prosecution for these specific crimes. For individuals, the absence of a
statute of limitations has an end, the duration of the life of the accused; for the State, this time seems
like an eternity. If damages are understood as debts of the State; therefore, this debt will never expire,
and, in France, this possibility was deemed unthinkable by the Council of State. The advisor of the
Council, the rapporteur public writes in the Hoffman-Glemane case that “the prescription of the State's
debts and its lack of criminal liability are simply two consequences drawn from the observation of its
6
Franklin Kuty, Principes généraux du droit pénal belge –, 2ème édition, Bruxelles, Larcier, 2020, 3. L’auteur, pp 111-112.
7
Michel Cosnard, “Immunité“ in Denis Alland, Stéphane Rials dir., Dictionnaire de la culture juridique, Paris, Puf, p 803.
8
Cour Constitutionnelle Belge : arrêt n° 69/2020 du 14 mai 2020, Numéro de rôle : 7099.
9
Article 21 of the Preliminary Title of the Code of Criminal Procedure and Article 91 of the Criminal Code (Belgium).

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permanent vocation". He adds that “applied to the State, whose vocation is permanent, the absence of
statutes of limitations is eternity. And we cannot resolve to propose to you to adopt such a dizzying
decision."
10
. In other words, if the King never dies, he can do no criminal wrong. The possibility of
civil proceedings devoid of any statutes of limitations would then be difficult to foresee and it raises
the necessity for the State to prevent the transformation of its criminal liability into a financial one.
C. Judging a perpetual estate (Hoffman-Glemane)
The decision Hoffman-Glemane is technically not a ruling but an opinion of the whole court, “un avis
contentieux” which is “a procedure allowing a lower administrative court to ask a new legal question
to the French Council of State”
11
. It follows the request of the daughter of Joseph B. arrested and
deported under the Vichy Regime (1940-1944). She asks for reparations to the State and to the French
railway company (SNCF) for the direct damages done to her father as well as for the moral and
psychological damages resulting for her. This case is the follow-up of a previous historic ruling in 2002
where the highest administrative court, the French Council of State, recognized a shared responsibility
of the French State in the deportation and consequently in the extermination of Jews during the German
occupation
12
. The legal question at stake now is the statute of limitations which is of four years for any
debts of the State. Yet in the case of a crime against humanity, the Criminal Code gives no statute of
limitations, and the civil proceedings are dependent on the penal one. Consequently, one of the
questions asked to the Council of State is the following “The penal code provides no statute of
limitations to crime against humanity (…) can it be extended (…) to the proceedings willing to hold
the State liable for actions that contributed to such crime? “The importation of a principle of criminal
law into the administrative realm is legally impossible and the Council of State offered a very atypical
answer.
It begins with a full recognition of the continuity between the Vichy Regime and the French Republic,
achieving the reversal of 50 years of jurisprudence that gave no legal effects to specific legal acts
promulgated during the Vichy Regime (based on the ordinance of 9 July 1944)
13
. It ended normative
impunity and having accepted the unequivocal responsibility of the French State, the opinion sets out
the various measures that allow the damage to have already been compensated. The statement intends
to cover the greatest number of cases, establish an equivalence between the French approach and those
of other European countries and finally puts forward the idea that the prejudice is so immense that it
can never be fully financially compensated. The rapporteur public writes that "its irreducible
singularity makes it illusory, in our opinion, to evaluate it in money (...). To put it differently, such a
prejudice cannot be compensated. It must be repaired according to us by act, gesture, or symbolic word
of the authorities of the State
14
". Exceptional damage does not, accordingly, call for a financial
10
Frédéric Lénica, « Conclusions sur Conseil d'État, ass. 16 février 2009, Mme Hoffman Glemane, req. n°315499 »,
Revue Française de Droit Administratif, Paris, Dalloz, 2009, p.316 s.
11
Conseil d’État, avis, ass., 16 février 2009, Mme Hoffman-Glemane, req. n°315499. The official English translation of
this opinion is available: https://www.conseil-etat.fr/en/judging.
12
CE, Assemblée.,12 avril 2002, Papon, n°238689.
13
Journal Officiel de la République française, 10 août 1944, p. 688.
14
Frédéric Lénica, op.cit.

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reparation of exceptional value, but for the transition to another order of reparation, the memorial and
symbolic one. The French State accepts its responsibility and considers that it has discharged its
financial and "memorial" debt. Thus, it affirms an uninterrupted continuity in the responsibility of the
public power and certainly mobilizes logic proper to the maintenance and good administration of its
estate. Professor Danièle Lochak asks herself "whether the primary objective pursued was to contribute
to getting out of the 'Vichy syndrome', to draw a line on this past that does not want to pass, or more
prosaically, to protect public funds"
15
.
It could be analysed as well as an example of a legal decision that mobilizes the concept of formal
legal rationality as introduced by Max Weber. In his work, the rational State is the one that carries the
requirement of the primacy of formal rationality over substantial rationality. This means a formal,
codified, and predictable law. Whereas substantial law is based on fairness (the justice of the Cadi, the
Muslim judge who produces an informal legal decision based on concrete ethical or practical
assessments). Formal legality is then related to the procedure and not to the content. A judgment relying
on subjective fairness leaves room for indeterminacy and does not allow for calculation and
predictability. Indeed, in the economic order, formal rationality is linked to the model of an activity
that can be evaluated in accounting terms and substantial rationality to an activity that involves
requirements of another nature: ethical, political, etc. Max Weber writes in Economy and Society:
" Economic activity is formally “rational” to the degree that vital “provision” for any rational economy can be,
and is, expressed by numerical, “calculable” estimation (initially quite independently of what technical form
these calculations take, whether, that is, they are expressed as monetary calculations or calculations in natura).
This concept is therefore at least unambiguous (although as we shall see, only relatively unambiguous) insofar
as the monetary form represents the maximum of formal calculability (and of course, ceteris paribus!)
16
“.
This specific French case law seems to oscillate between formal and substantial rationality as the
damages are finally judged impossible to quantify. Also, the first decisions that nullified the acts
committed by the Vichy Regime and rejected the French State responsibility were qualified as
inexplicable by the doctrine whereas they are a formal and strict application of statutes
17
. It can seem
a cynical interpretation but at the end of World War II, such individualised reparations would have
necessitated a projection of budgetary expenses that would have been both indeterminate and colossal.
Formal rationality allows predictability; on that matter, the absence of any ground for litigation is
formally a legal means to reach an economic end. Of course, there have been reparations throughout
time, they were gradual, progressive, and especially foreseeable. This foresight is at the core of the
administrator’s work and highlights three specific domains of its action that can delay or impede both
civil and criminal liabilities. This second part is then a follow-up on my initial question thus rephrased:
To what extent can the criminal liability of the State be an effective response to its impunity?
15
Danièle Lochak, « Le droit, la mémoire, l’histoire : La réparation différée des crimes antisémites de Vichy devant le
juge administratif. », La Revue des Droits de l’Homme, CTAD-CREDOF (Centre de recherche et d’études sur les droits
fondamentaux) 2012, p. 29.
16
Max Weber, Economy and Society, translated by Keith Tribe, Cambridge, Harvard University Press, p 172: I, 2, § 9, 2.
17
Marcel Waline, “Conseil d’État, ass. 4 janv. 1952, Époux Giraud, 1.530., Revue du droit public , 1952, p. 487.

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II. Managing State impunity
A. The financial estate:
Public management is, in my view, related to the concept of reason of State. In his 1979 lectures,
“Omnes et singulatim: Towards a Criticism of Political Reason”, Michel Foucault reminds us that the
reason of State is not focused on the strengthening of the power of the prince but that of the State. It is
not a question of conquering power, of maintaining individual power, but of the very duration of what
one conquers
18
. The challenge is then to increase its power to ensure its 'sustainability'. Otto Hintze
also studied this link and writes in 1931 “Raison d’état and capitalism are closely allied sociologically. What
else is capitalism than modern raison d’économie? Raison d’état and raison d’économie stem from the same
root (…) The heightened intensity and rationality of economic operations and State administration and policy,
the subordination of the individual arbitrariness of leaders in politics and economics to the interests of the “firm”
or the ‘State” in its new character: all these fit together”
19
.
This vision may necessitate to be nuanced nevertheless the identification of the State as an
administrative apparatus closely related in form to private corporations is useful in our undertaking.
The State can then be considered on an equal foot with other legal corporations, to use Maitland’s
words, with other “right-and-duty bearing units “. Thus, as an organisation like any other, the actions
of its administrators could rely on the same processes that managers in private corporations. This idea,
highly debatable, was widely spread after WWII and a course in Public Administration given at Science
Po Paris in 1962 tells us that “the Administration is men who are grouped in the frameworks of the general
services of the State. It is they who play "mutatis, mutandis", on behalf of the State, the role that men play inside
a private corporation. In concrete terms, the State is men grouped in the administrations and who manage the
general interests of the nation"
20
. The author, Bernard Chenot, writes above this quote that, the State is a
legal personification of the nation, I assume thus that the interests of the State are here thought as
identical to the general interests of the nation. In that case, the reason of the State is focused on its
durability which requires a sort of economic fitness, financial health, and a duty to care about what I
will call its financial estate. In the words of Foucault, “It’s a government whose aim is to increase this
strength within an extensive and competitive framework”
21
.
At the beginning of the paragraph, I just quoted, Foucault speaks indirectly of another technique that
plays an immense role in managing impunity, the control of knowledge, of the knowledge that the
State possesses on itself. What I will call an epistemic estate. He writes: “The art of governing,
characteristic of the reason of State, is intimately bound up with the development of what was then called either
18
Michel Foucault, « Omnes et singulatim »: Towards a Criticism of Political Reason » in McMurrin S., ed., The Tanner
Lectures on Human Values, t. II, Salt Lake City, University of Utah Press, 1981, pp 244-246.
19
Otto Hintze, “Calvinism and raison d’Etat in Early Seventeenth-century Brandenburg,” The historical essays of Otto
Hintze, ed. with an introd. by Felix Gilbert with the assistance of Robert M. Berdahl, New York, Oxford university press,
1975, p 92.
20
Bernard Chenot. Cours sur les Institutions administratives ( 1962-63), Université de Paris et IEP de Paris, pp 84-85.
21
Michel Foucault, op.cit., p 245.

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political statistics or arithmetic; that is, the knowledge of different States’ respective forces. Such knowledge
was indispensable for the correct government.
22
“. A government that puts first the protection of the State’s
interests.
B. The epistemic estate
The rapporteur public in the Hoffman-Glemane case wrote, “For this type of illegality, the time of the
judge comes necessarily after the historian’s one". The work of the latter calls upon another estate, that
of the knowledge that the State has about itself, its acts, its population, its finances, its territory, and
materially its archives. Their access is framed by specific provisions which limit the capacity of
historians and private individuals to access this epistemic estate. Derogations are possible and, in most
cases, given but when public servants in ministries refuse to grant access, it is, at the end of the 20th
century, for archives related to World War II. The head of this section at the French National Archives
tells us: “It appears that (the denial of access) is influenced by a kind of solidarity between generations. Just as
they do not want their present action to be revealed too much in the future, they respect the same law of silence
for those who have been before them. It is a corporate culture “
23
. For instance, in France, one must wait 50
years for the communication of archives related to the security of the State, which is longer than any
statutes of limitations except for the examples already cited. The time of the State is not the one of
human beings and if the public prosecution is not allowed to have access to highly classified pieces of
information, it will not go far. For instance, a case concerning the selling of weapons and ammunition
that are used to commit war crimes would need a long time to be documented. Thus, time is mostly on
the side of the State thanks to the management of its archives. Durability is at the core of its raison
d’être and depends as well on the effectiveness of the values that it bears, what I will call, its axiological
heritage.
C. The axiological heritage:
In French political rhetoric, the distinction between the Republic and the State is often mobilized in
speeches notably when they are an admission of responsibility for mass crimes or violation of human
rights. The Hoffman-Glemane opinion refers to the Vichy regime as "the de facto authority calling
itself the government of the French State" and declares that its acts (the anti-Semitic persecutions) were
carried out "in absolute rupture with the values and principles, in particular the dignity of the human
person, enshrined in the Declaration of the Rights of Man and of the Citizen and in the Republican
tradition. “In another context, Emmanuel Macron gave a speech on September 13, 2018, regarding the
disappearing, torturing and assassination of Maurice Audin during the Algerian War. He says, “that his
disappearance was made possible by a system that successive governments allowed to develop” and
22
Ibid. p 246.
23
Paule René-Basin Table ronde sur la sûreté de l’État in « Transparence et secret, l’accès aux archives contemporaines »,
28-29 mars 1996 in La Gazette des archives, »,n°177-178, 2ème et 3ème trimestre, p : 178.

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then he differentiates the Republic from these "successive governments"
24
. He continues: “A "duty of
truth" falls to the French Republic, which in this area as in others, must show the way.”
Is it then conceivable, that the criminal responsibility of the State could never call into question a
political resource, the appeal to the Republic and its values, or the promotion of an axiological heritage
that is dissociated from the legal person of the State?
The French case is extremely specific here, however, this scission could, for example, lead to a
declaration of guilt of the State in the name of the people, in other words of the Republic. Could we
even say that if torture is used illegally, it is an act committed by the State and not by the Republic?
Impunity is here built through the distinction between the apparatus and the values it bears. On that
matter, the preface written by Pierre Vidal-Naquet to the book of Karl Jaspers, Die Schuldfrage, poses
a very interesting problem, which Emmanuel Macron has recalled during his speech: During the
Algerian War, torture was an illegal and criminal act, and Pierre Vidal-Naquet reminds us that "France
at the time was in no way a totalitarian society. (…) What we must evaluate in this case, as in the
American war in Vietnam, is the criminal capacity of a democratic society. This capacity is not
unlimited. – (…)- but it is vast"
25
. In that framework, the dissociation is quite uneasy
26
.
To understand the fragile balance between the dissociation and the confusion of these two forms, the
State and the Republic, a concept created by F.W Maitland could be useful. In his 1904 lecture, he
distinguishes the corporation as a right-and-duty-bearing unit and as a moral unit to initiate an
interrogation about the moral agency of the collective entity
27
. I propose to pinpoint an intermediary
stage between the legal person and the moral person, an axiological form of legal unit that I will call a
value-bearing unit. The latter could be extremely disrupted by the introduction of criminal liability of
the State. For instance, if it were implemented in France and were followed with consistent case law,
would it still be possible to sentence individuals to training sessions in citizenship? While the State is
found guilty of crimes, would it not be strange to attend sessions of training meant, according to the
penal code, to “remind convicted persons of the republican values of tolerance and respect for human
dignity?” Would it not be “fair “or at the very least formally coherent that in return specific organs of
the State may also be convicted to compliance supervision, and training sessions, on the model of the
measures used in certain provisions of Corporate Criminal Law?
24
https://www.elysee.fr/emmanuel-macron/2018/09/13/declaration-du-president-de-la-republique-sur-la-mort-de-
maurice-audin
25
Pierre Vidal-Naquet in Karl Jaspers, « La culpabilité allemande », trad. J. Hersch, Paris, Editions de Minuit, 1990,
pp18-19.
26
In his discourses, Robespierre says that democracy and Republic are "two synonymous words” " since "the
essence of the Republic or democracy is equality". In his words, at least, a democratic France is the Republic.
Maximilien Robespierre, Discours du 5 février 1794, in Œuvres, Vol. 10 , Discours 5ème partie, Paris, 1967,
pp. 352-354.
27
F.W Maitland, op. cit. pp 70-71.

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The criminal liability of the State is quite rare, and I wanted to highlight that it can become a
legal reality in the domestic order as well as a truly progressive reform. It is also quite a bet, both
political and financial. The French case introduced the idea that there is a form of public management
of the legal, political, and economic liabilities linked to the State’s illegal acts, whether criminal or not.
This management is built on a mix of substantial rationality, values that direct human actions and
institutions, and formal rationality, processes linked to impersonal rules and predictability of the
sanction and its cost. The history of the French admission of responsibility and complicity in the
Holocaust is the result of decades of efforts from individuals, academics, associations and primarily
from the victims and their descendants. In the end, the financial liability was formally rationalised, and
the epistemic estate was well preserved and classified thus it took more than 50 years to have access
to facts whose legal reality was annihilated in 1944. The Hoffman-Glemane case opens to us a
perspective, a picture of a specific type of public management of impunity that is rooted in French
political culture. At that point, I underlined two types of estates and one type of heritage whose
management would be critical if a choice were made in France to implement such a law.
Now if we consider that one of the purposes of criminal law is the preservation of social peace and that
political obligation is also founded on this promise of peace. Then could the subjection of State
violence to the control of the criminal judge undermine the very justification of its existence? A
justification which is also a ground for its primacy on other legal persons within its jurisdictional
landscape.
On the opposite, the criminal liability of the State may eventually be one of the highest realisations of
the rule of law. To that extent, if we isolate the Weberian ideal-type of legal-rational legitimacy, it does
not exclude at all State violence. On the contrary, it creates the conditions of a legal framework where
the treatment of the illegality of the State does not undermine its legitimacy but reinforces it. Thus, this
dynamic of normative integration of the illegalities of the State, and the weakening of its immunities
could be a milestone in the combat against its impunity, at the condition that it is effectively enforced.
The criminal liability of private entities was also promising and then was very poorly enforced or now
mainly realised through transactional mechanisms, like deferred or non-prosecution agreements.
However, the criminal liability of the State is a credible response to its impunity for at least one other
reason: The introduction of the absence of a statute of limitations when pressing charges or claiming
damages for some of the most heinous crimes. Hence the Belgian bill is a leap forward, that can become
a game changer if it produces new configurations of legal temporality where the passage of time does
not profit inevitably to the interest of a unique person, the State.