The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis
Abstract
This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective. In this context, particular thought has been given to the catalyzing impact of the criminal law theory that has developed in major world legal systems upon the crystallization of the substantive part of international criminal law. This study offers a critical overview of international and domestic jurisprudence with regard to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive comparative analysis of substantive criminal laws in selected legal jurisdictions. © Springer-Verlag Berlin Heidelberg 2014. All rights are reserved.
Chapters (6)
In common law jurisdictions, criminal law is a melting pot of statutory and precedent laws. A particular peculiarity of English criminal law is the origin of many serious criminal offences in precedent law rather than statutory provisions. While it is difficult enough to work with old judicial pronouncements, there is as well a lack of unanimity in the criminal law theory as to the definition and construal of some fundamental concepts. As it was rightly penned by Fletcher “the theoretical work on general part […] is plagued by a great confusion of terminology”. The accumulated criminal law materials are voluminous and often abstruse, which makes it challenging to coalesce the judicial practice.
All crimes in German criminal law fall within two major categories, Verbrechen (equivalent to the old UK category of felonies) and Vergehen (akin to misdemeanours). Article 12 (1) of the German Criminal Code defines Vebrechen as “unlawful acts punished by a minimum sentence of one year of imprisonment”. Vergehen are described as “unlawful acts punishable by a lesser term of imprisonment or a fine. The criminal offence in German criminal law, irrespective of whether it constitutes Verbrechen or Vergehen, has the three-layered (tripartite) structure:
Broadly, a crime is a socially harmful act or omission that breaches the values protected by a state. It is an event prohibited by law, one which can be followed by prosecution in criminal proceedings and, thereafter, by punishment on conviction. The state criminalises certain conduct due to burgeoning public pressure to proscribe certain immoral harms. However, criminality shall not be confused with immorality: they are related but not synonymous terms. A lion’s share of immoral acts is not criminalised, as well as not all criminal acts are immoral. It is within the discretion of a state to construe which acts require to be criminalised and incorporate such prohibitions into its respective criminal laws.
The first pivotal legal instruments of the Nuremberg and Tokyo Tribunals did not elaborate on the mens rea attributable to the crimes within their jurisdiction. The victorious Allied powers had appointed justices, who were entrusted with broad judicial discretionary powers, to settle the nature of mens rea in relation to the crimes charged. A number of thorny issues on the interpretation of the mens rea concept emerged during trial proceedings at Nuremberg, among others, the interpretation of knowledge as to the lawfulness or unlawfulness of conduct, the inference of intent, the interrelation between mens rea and defences etc. Defendants in Nuremberg were particularly keen on denying knowledge of the widespread scale of crimes, and invoking defences of superior orders and duress. The judges made it clear that the fact that defendants were assigned to their tasks by Hitler did not absolve them from criminal responsibility. By cooperating with Hitler, with knowledge of his criminal aims, they made themselves parties to the plan that he had initiated.
The discipline of international criminal law deals with the most serious crimes of concern to the international community, for which the responsible individuals shall bear criminal responsibility. Being firmly entrenched in substantive laws of national legal jurisdictions, the principle is not novel in international criminal law and is traceable to the celebrated Nuremberg Judgment. At the outset of the trial in Nuremberg, it was challenging to argue that the precedent of individual criminal responsibility for core international crimes, which called for the universal condemnation, a priori existed. In his renowned opening statement, Robert Jackson laid down his arguments as to the relevance and necessity of the principle of individual criminal responsibility in international law:
The substantive part of criminal law distinguishes between excuses and justifications. The harm caused by the justified behaviour remains a legally recognised harm that breaches certain fundamental values protected by criminal law, however, the infliction of that harm is motivated by the need to avoid an even greater harm. In other words, justificatory defences apply in rather exceptional situations that require a proportional and necessary response. If such triggering conditions are non-existent, a person engages in illegal conduct that entails criminal responsibility. The classic example of a justificatory defence is the exercise of the right to self-defence. The right is triggered by the imminent attack or a threat of violence directed against an individual, which gives him a legitimate right to protect himself or others. The right to self-defence is not absolute and has certain boundaries. The two mandatory conditions are that the response towards any form of violence is necessary and proportional. This warrants against the arbitrary use of violence towards others. One can hardly justify stabbing another person with a knife if one was merely slapped in the face.
... 12 This fundamental principle of criminal liability is embodied in the Latin maxim 'actus non facit reum nisi mens sit rea', which means that an act does not make one guilty unless the mind is also legally blameworthy. 13 The concepts of actus reus and mens rea have to be analyzed 4 9 LORD SIMONDS, HALSBURY'S LAWS OF ENGLAND (VOLUME 10) (3rd ed. 1964), https://www.wildy.com/id/1573 ...
... 12 Id. 13 separately for fully understanding the concept of crime. ...
The ever-increasing use of internet and cyberspace for committing crimes has resulted in the emergence of a separate category of crime called cybercrime. In order to develop an analytical definition of cybercrime which distinguishes cybercrime from real-world/traditional crime, the concepts of mens rea and actus reus are used. Since, mens rea always occurs in the mind of the individual, it is always located outside cyberspace. Consequently, for a crime to be classified as cybercrime, the actus reus must occur in cyberspace. Based on this assumption, it is proposed that a crime will be considered as cybercrime only if both of the following conditions, namely: (a) any one or more of the several acts constituting actus reus occur within the cyberspace; and (b) the actus reus is completed in cyberspace, are satisfied. While developing such a definition it is also assumed that merely because evidence regarding a crime is stored in cyberspace, the crime will not be considered as cybercrime.
... In the third paragraph of the provision, several types of individual responsibility are differentiated from one another. In conclusion, the responsibility of nations in accordance with international criminal law is unaffected by the requirements of the ICR provisions, as stated in Article 25 (4) of the Rome Statute (Marchuk, 2017 (2) ordering and instigating; (3) assistance; and (4) contribution to a group crime (Jikia, 2008). ...
... In this particular instance, criminal culpability can be established on the basis of a failure to prevent or reveal a breach of international law. Furthermore, this is the scenario in which the definitions of offenses expressly punish the omission of a certain behaviour (Marchuk, 2017). In situations like these, the sheer fact that the culprit does nothing to stop the situation is the act of committing a crime. ...
From the end of the year 2008 to 2021, Israel committed four wars in the Gaza Strip. These wars were known as Operation Cast Lead in2009, Operation Pillar of Cloud in 2012, Operation Protective Edge in 2014, and Operation Guardian of the Walls in 2021. The destructive impacts on vital facilities in Gaza, including schools, universities, mosques, hospitals, and United Nations Relief centers, as well as the killings of thousands of innocent civilians by Israeli forces, are visible evidence of a serious violation of the principle of distinction, a basic principle provided under the international humanitarian law conferring protection upon the civilians during armed conflicts. The accession of Palestine to the Rome Statute of the International Criminal Court on crimes. This paper aims to analyze the position of individual criminal responsibility committed during the above-mentioned wars, regulated under the Rome Statute of the International Criminal Court and other relevant international conventions. In analyzing the data from primary and secondary sources, this paper applied doctrinal legal research and qualitative approaches. This paper concludes that the Rome Statute of the International Criminal Court associated the individual criminal responsibility for war crimes by systematically determining the extentof participation, namely: (1) commission; (2) ordering/instigating; (3) assistance; and (4) contribution to a war crime as a group crime. Thus, Israeli military leaders ought to be held liable for the commission of war crimes in accordance with Article 8 of the Rome Statute of the International Criminal Court. The pretexts of the Israeli occupation to be exempt from criminal responsibility should be rejected according to the state of legitimate defense.
... 70 However, other scholars believe that crimes against humanity can be traced back to World War I after the enforced displacement and murder of Armenians, denounced by the Allied powers as 'crimes against civilization and humanity'. 71 Thereafter the concepts included in crimes against humanity have been developed in many scholarly writings and international instruments with slight differences in definitions. 72 the scandal and appears quite willing to spend a few hundred million more on the quest. ...
This is the judgment that never was. The judgment in the High Court proceedings that could have followed Karam v The King (“Karam”) [2023] VSCA 318 (14 December 2023). The judgment of a brave jurisprudentes – the nonexistent eighth Justice of the High Court of Australia – Justice Phantom. If delivered, it would have been a dissenting judgment.
All seven of the actual justices of the High Court of Australia unanimously supported a blanket refusal to hear the case. They sat in secret session à huis clos at some stage and only ‘on the papers’ without a formal hearing that might have allowed the issues in the case to be fully ventilated, simultaneously rejected applications for an extension of time in which to make an application for special leave and dismissed the special leave applications (see: Karam v The King [2024] HCASL 114; Karam v The King [2024] HCASL 115).
Karam was undoubtedly a case of public importance. The fact that all seven Justices of the High Court of Australia were involved in dismissing the applications tends to suggest some form of admission by conduct to that effect. In what has become a regular routine, a full Court constituted by two justices regularly dismisses applications for special leave en bloc.
... [8] During the trial, the defense attorney in the Lubanga case stated that the suspect was not aware of the prohibition on registration and conscription for children under the age of 15 because, according to him, the implementation of the Rome Statute into domestic law was not communicated to the general public at large, which resulted in Lubanga not being aware of his actions. However, the Pre-Trial Judge rejected this argument because the violation had been agreed to as the foundation of international law before Lubanga's actions [9] This rejection is based on international law adhering to the ignorantia juris non excusat principle. This principle means that someone must be made aware that their actions violate the law or can be said to be ignorant of it. ...
Background of the study: Ignorance of international law will be severe because the perpetrator does not realize that the act is an international crime. It impacts victims' rights due to the local community's unawareness. The aims and objectives: To increase awareness of the importance of understanding international law and its consequences at all levels of the general public. Methods: Research design through a literature study and case study approach to finding patterns of challenges used to determine effective strategies for overcoming ignorance of international law. Results: The difference between national and international laws is a factor in the ignorance of criminals, characterized by a knowledge gap in society regarding international issues. Holding open forums by international institutions is one means of improving communication between countries and understanding international law. Conclusion: Ignorance of international law results in injustice in victims' rights.
... The law on mens rea has been largely developed by debates about the required mens rea criteria in respect to certain offences. For example In English criminal law, a variety of words have been used to communicate responsibility, including purpose, intention, recklessness, wilfulness, knowledge, belief, suspicion, reasonable cause to believe, maliciousness, fraudulence, dishonesty, corruptness, and suspicion (Marchuk, 2014). ...
Cyberthreats “Cybercrime” is a “criminal offence that may be committed on or through a computer system generally connected to a network”. As a result, it is a new type of crime and delinquency that varies from previous forms in that it takes place in a virtual location known as “cyberspace”. In recent years, the democratisation of computer access and the globalisation of networks have both played a role in the growth of cybercrime. In fact, not isolated and the institutions in several States are fully aware of the seriousness of this phenomenon, which goes beyond the borders of each State. If all members of Jordan’s criminal justice system are unaware of sophisticated computer and electronic device technologies, cybercrime will continue to rise. Despite technological developments and the information revolution, some states limits the subject of criminal protection to cash and fails to protect information funds against fraudulent acquisition.International law plays a significant role in combating cybercrime and establishing guidelines for cooperation among nations.
... Aunque la doctrina internacional no utiliza el término culpa como tal, maneja su contenido a través del desarrollo de la imprudencia (recklessness) y la negligencia (negligence). En relación con la primera, Iryna Marchuk considera que "actuar imprudentemente" significa que una persona no tiene en cuenta las consecuencias nocivas de su acción (Marchuk, 2013). ...
El Glosario de Justicia Internacional Penal ha sido elaborado por más de 35 profesionales, especialistas de reconocida trayectoria académica y en el activismo en derechos humanos. Este libro ofrece 280 conceptos claros y directos, con el objetivo de facilitar al lector, estudiante, jurista, periodista y político una mejor comprensión del sistema judicial.
... Broadly speaking, the concept of crime in Western legal traditions is not different from Islamic legal tradition and is usually referred to as an act that leads to the violation of social norms protected by a state (Marchuk, 2014). Technically, it is a violation of a legal rule which gives rise to the punishment of the violator in the form of fine, imprisonment, regulated either by the text of the Holy Qur'ān or the Sunnah of the Holy Prophet (PBUH) (Nyazee, 1997). ...
... It has been an affirmative and indisputable reality for many years now that international criminal law has therefore performed a function of protection and prevention from offenses to the fundamental collective and universal legal goods attributable to international humanity as such (May, 2005) The penalty now presents itself as a precise, fundamental, 2 The author resorts to the principle of offensiveness in order to delimit the area of intervention of the criminal instrument, proposing the following formulation: serious harm to the international community occurs whenever victims become targets of criminal conduct because belonging to a particular group and not because of some individual characteristics, or in all cases where crimes are committed by a state or another collective entity (group-based harm approach). systemic, collective, massive source of international criminal law (Marchuk, 2014). In international criminal law, therefore, the double level of potential overlaps and interferences through the principle of complementarity and not only gives the matter of penalties a degree of greater complexity and simplicity (Kolb, Scalia, 2012;Reed, Bohlander, 2014;Peay, 2015) 3 . ...
International criminal law constitutes, due to its intrinsic characteristics, a competition challenge at the universal level of norms and crimes which finds its most natural and logical manifestation through the final penalties provided for in the Statute of the International Criminal Court (StICC). The present work has as its object to analyze the punishment according to the StICC, the hypotheses of normative convergences that are established alongside the foreseen sentences, the jurisprudential cases, the verifiable convergences within the global international community where the sentences take place over the years, the path of harmonization, integration, evolution, development not so much of international criminal law but also of domestic law, the rationalization of accounts with internal justice which is never eliminated by the international one, snubbed towards a type of annihilating a priori inevitable phenomena against the impunity, the continuous violence against human rights and the strength of the victors and hegemons.
The authors analyze the foreign experience of criminalizing actions infringing on the international peace and security of mankind in the post-Soviet states from the standpoint of the development of international criminal law. It is noted that the comparatively young states of the post-Soviet space adopted the Roman-Germanic legal family and recognized the dominance of international law, which was manifested in the incorporation of international clauses on ensuring the peace and security of mankind into national legislations. The author argues that the national legislations of post-Soviet countries is, to a greater or a smaller degree, based on four mutually complimentary systems of international criminal law (the Hague, Nuremberg, Geneva and Roman ones), while their criminal law norms on international crimes are formulated on the basis of legal-technical, historic-cultural and political-legal specifics of national criminal policy. It is concluded that the system of crimes against the peace and security of mankind in post-Soviet states includes: 1) traditional international crimes; 2) international neo-criminal actions; 3) crime of international character (conventional crimes); 4) national crimes proper, regardless of their international law regulation. Besides, the recognition of international peace and security of mankind as an object criminal law protection also testifies to the primary course for regional unification in the criminalization of publicly dangerous acts at the national level of the member countries of the Commonwealth of Independent States. However, after some countries (Georgia, Moldavia, Armenia) recognized the jurisdiction of the International Criminal Court, they retreated from the trend for regional unification of criminal law policy on the post-Soviet space, whose foundations were laid as far back as 1996 with the adoption of an advisory legislative act for the Commonwealth of Independent States — the Model Criminal Code of the CIS member states.
Pada 1 dekade terakhir, terdapat wacana untuk memasukkan ekosida di bawah yurisdiksi Statuta Roma Tahun 1998 tentang Mahkamah Pidana Internasional sebagai kejahatan internasional. Hal ini didorong oleh kerusakan lingkungan yang semakin parah hingga menyebabkan hancurnya ekosistem, risiko kesehatan terhadap makhluk hidup, serta meningkatnya bahaya dan frekuensi bencana alam. Terdapat pro dan kontra selama diskusi wacana menjadikan ekosida sebuah kejahatan internasional. Beberapa kelompok mendukung secara penuh untuk segera menjadikan ekosida sebuah kejahatan internasional, ada pula beberapa kelompok yang menolak dengan alasan ketidakcocokan karakter ekosida dengan unsur-unsur kejahatan internasional. Tujuan dari penelitian ini adalah untuk mengetahui mengapa ekosida harus menjadi kejahatan internasional. Penelitian ini dilakukan dengan menggunakan 3 jenis pendekatan yakni pendekatan regulasi, pendekatan konseptual dan pendekatan kasus. Adapun bahan hukum yang digunakan dalam penelitian ini adalah bahan hukum primer dan bahan hukum sekunder dalam ruang lingkup hukum internasional. Penulis berpandangan terdapat 3 alasan mengapa ekosida harus masuk sebagai kejahatan internasional di bawah yurisdiksi Mahkamah Pidana Internasional. Ketiga hal tersebut antara lain (1) ekosida memenuhi unsur-unsur kejahatan internasional; (2) ekosida merupakan bagian dari asas common concern of humankind yang menjadi dasar dapat diadakannya yurisdiksi universal terhadap kejahatan ekosida; dan (3) tindakan yang menyebabkan kerusakan lingkungan kerap kali tidak ditanggapi tegas oleh pemerintah negara.
The Rome Statute of the International Criminal Court is the first international legal document to establish a fundamental distinction between perpetration and complicity as forms of involvement in international criminal offence. Until then, in doctrine as well as in the practice of international courts, no principled distinction had been made between perpetrators and accomplices; instead, all individuals who contributed to the commission of an international crime by their conduct were simply considered its perpetrators. Article 25 of the Rome Statute not only clearly separates perpetration from complicity, thereby establishing hierarchically ordered forms of responsibility, but also precisely defines perpetration itself by structurally reducing it to its three typical forms: direct perpetration, indirect perpetration, and co-perpetration. Indirect commission of a criminal offence has thus emerged from the multi-decade shadow of the uniform model of perpetration and has acquired clearer contours by specifying that the responsibility of the indirect perpetrator does not depend on whether the individual instrumentalized and used as a means of commission is criminally liable for the accomplished criminal act. The question of which situations justify the application of the construct of indirect perpetration in international criminal law is not directly regulated but is left to closer definition by theorists and practitioners, although the practice of the International Criminal Court has already established firmer criteria in that direction, clearly indicating the theoretical model on which the application of this form of perpetration is based (the theory of control over the act based on an organized apparatus of power). However, the question still remains open as to whether indirect perpetration can be considered a part of customary international law and whether its future looks bright, as hinted at by the few decisions of the International Criminal Court so far, or whether other forms of responsibility will take precedence in the meantime in the realm of the responsibility of state leaders and leaders of (criminal) organizations for international crimes.
This chapter addresses the legal implications of defining genocide as an endangerment crime in relation to the actus reus. It begins by reinterpreting the ICC's approach in the Al Bashir case, demonstrating how the court effectively positioned the contextual element as an objective threshold for the crime's consummation, aligning it more with the material elements of genocide rather than its subjective components. The chapter then examines how the collective context of perpetration shapes the structure of the crime and its application to various genocidal acts, including killing, causing serious bodily or mental harm, and inflicting conditions of life calculated to bring about the group's destruction. Through this analysis, the chapter explores the relationship between individual harm and collective endangerment within the frameworks of result-based and conduct-based genocidal acts. It also addresses the argument that while some genocidal acts are inherently collective, others may be perpetrated by a lone actor. The chapter concludes with a discussion of substantiality and its implications within the legal framework of genocide.
This chapter addresses one of the most complex aspects of genocide—the crime’s mens rea, which sets it apart from both common law offenses and other core international crimes. After reviewing how genocidal intent has been interpreted in the jurisprudence of the ad hoc tribunals, the chapter explores the realistic components of genocide’s general and special intent. The discussion includes an analysis of the existing theories of genocidal intent, focusing on both the purpose-based and knowledge-based approaches. Common misunderstandings, such as the assumption that the knowledge-based approach is a recent or innovative concept, are clarified. Additionally, the chapter examines the fundamental premises of the knowledge-based theory, emphasizing the role of taxonomy or hierarchy among different types of offenders in the commission of genocide. Through this examination, the chapter seeks to provide a clearer understanding of the mens rea that underpins the crime of genocide and its unique legal significance.
This chapter critically examines the prevailing understanding of grouphood within the context of genocide law, highlighting the challenges and shortcomings of current interpretations. A thorough critique of the increasingly popular perpetrator-based subjectivity in constructing the four groups, particularly among legal scholars, is offered. By revisiting the concept of grouphood from historical, teleological, and victimological perspectives, the chapter aims to illuminate its original conceptualization by the drafters, its interpretation by international lawyers at the time, and its evolution in State practice prior to the 1990s. Through a contextual analysis of the first significant international criminal trial on genocide, the case against Jean-Paul Akayesu at the ICTR, core criticisms of the so-called ‘objective’ interpretation of the four groups are reassessed, the ‘permanent and stable’ formula is reconstructed, and the notion of involuntariness in defining protected grouphood is explored.
This chapter explores the trajectory of genocide (iter criminis) within international legal scholarship. The previous chapters presented doctrinal and practical arguments against a purely subjective perpetrator-based interpretation of genocide, particularly concerning the definition of protected groups. While it is undeniable that the perpetrator plays a crucial role in shaping the criminal trajectory, an exclusive focus on the perpetrator’s perspective can lead to unreasonable or even absurd legal outcomes. By analysing a classic example from the law of attempts (inverted mistake of fact, impossible attempts), this chapter demonstrates the limitations of a perpetrator-centred approach in applying genocide law. An alternative exegesis is then proposed, which incorporates not only the subjective dimension of perpetration but also considers the trans-subjective nature of the protected legal values, offering a more balanced and comprehensive framework for understanding the crime of genocide.
The International Criminal Law is in the progressive development stage which was initiated by
the Nuremberg Tribunal, Tokyo Tribunal’s contributions on assessing and judging the serious
violations of international human and humanitarian rights committed during World War II.
These serious violations are the sources for International Crimes. The recognition of International
Crimes and Procedures was adopted through the Rome Statute, 2000. The Rome Statute
recognized Crime of Genocide, Crimes against Humanity, War Crimes and Crime of Aggression
as international crimes under Arts. 6 to 8bis. The International Criminal Court (ICC) practicing
complementary jurisdiction to over these crimes. Unlike the domestic legal system, the Rome
Statute or the Rule of Procedure and Evidence has not incorporated any investigating agencies or
Police System to investigate and submit the report for any violation of international human rights
and humanitarian rights which resulted in the above said crimes. The Rome Statute, 2000 comes
with a unique procedure for referring a situation on the commission any one or more than one
prohibited acts enumerated under Arts. 6-8bis. Arts. 13 to 15ter of the Rome Statute of the ICC
dealt about the referral procedures and Art. 16 speaks about the deferral procedures by the Office
of the Prosecution and Arts. 17-19 dealt with admissibility and its challenges of cases. The Rome
Statute of the ICC imposes the responsibility on the Office of the Prosecution (OTP) to conduct
investigation on any such referral of situation made by either the State Parties, Security Council
or by the OTP suo motto. In this paper, the author will discuss about the complexities in referring
a situation to the OTP, investigation mechanism, accepting or deferring the situation, admissibility
and challenges to the admissibility of a situations. One of the major critique faced by the ICC is
the referral procedures and its complexities.
KEY WORDS
International Criminal Court, Office of the Prosecution, International Crimes, Rome Statute
2000, Reference of situation.
The definition of terrorism is not consensual, even within the same country. Indeed, in the United States of America, a country where the fight against terrorism is one of the present political priorities, the definition varies depending on whether the source is the Department of Defense (DoD), the US Code, the Federal Bureau of Investigation (FBI) or the Department of State, but this lack of consensus does not mean that terrorism is not considered a crime according to the Resolution 49/6026 of 17 February 1995 of the United Nations General Assembly. However, many experts on the thematic do not accept the definition of terrorism as an international crime in time of peace defending that terrorism is essentially the violation of domestic laws which have their genesis in treaties to which states may or may not adhere, and this explains why some countries refuse to reduce their sovereignty and do not accept to transfer the jurisdiction for crimes of international terrorism to supranational institutions. According to this vision, terrorism must be included as a subtype in one of the four modalities that are already recognized by international law. This article reflects on the relationship between terrorism and the modalities of war crimes judged by the International Criminal Court (ICC) and seeks to show that the seriousness of the terrorist threat justifies that terrorism should be considered an autonomous international crime.
Стаття присвячена дослідженню проблематики концептуалізації поняття покарання у міжнародному кримінальному праві та віднаходженню викликів, які наразі існують на шляху до відповідного результату. Визначено роль та місце феномену «міжнародного злочину» в означеному процесі, як такого, який не тільки пронизує переважну більшість аспектів міжнародного кримінального права, а й одночасно знаходиться в тісному взаємозв’язку із «покаранням», суттєво впливаючи на нього, видозмінюючи його внутрішні змістовні характеристики й параметри. Виявлено та систематизовано дві групи сучасних викликів на шляху до концептуалізації покарання у міжнародному кримінальному праві, серед яких чільне місце, з одного боку посідає проблематика «авторитету» та «легітимності» міжнародного кримінального права, «легальності» й «легітимації» міжнародних кримінальних судів і трибуналів, а також «законності» покарання у міжнародному кримінальному праві («зовнішні виклики»), а з іншого – широке коло проблем, пов’язаних із визначенням покарання, його мети, цілей, структури системи покарань, конкретних їх видів, а також інших специфічних нюансів, зосереджених довкола цієї категорії («внутрішні виклики»). Наголошено на перспективності досліджуємої тематики і обґрунтовано доцільність подальшої її наукової розробки з огляду на виявлені тенденції, що формуються («похідний характер», «селективність», «конфронтація»).
The definition of terrorism is not consensual, even within the same country. Indeed, in the United States of America, a country where the fight against terrorism is one of the present political priorities, the definition varies depending on whether the source is the Department of Defense (DoD), the US Code, the Federal Bureau of
Investigation (FBI) or the Department of State, but this lack of consensus does not mean that terrorism is not considered a crime according to the Resolution 49/6026 of 17 February 1995 of the United Nations General Assembly. However, many experts on the thematic do not accept the definition of terrorism as an international
crime in time of peace defending that terrorism is essentially the violation of domestic laws which have theirmgenesis in treaties to which states may or may not adhere, and this explains why some countries refuse to reduce their sovereignty and do not accept to transfer the jurisdiction for crimes of international terrorism to supranational institutions. According to this vision, terrorism must be included as a subtype in one of the four modalities that are already recognized by international law. This article reflects on the relationship between terrorism and the modalities of war crimes judged by the International Criminal Court (ICC) and seeks to show that the seriousness of the terrorist threat justifies that terrorism should be considered an autonomous international crime.
Known colloquially as a killer robot, an autonomous weapon system (AWS), is a robotic weapon. Upon activation, it can decide for itself when and against whom to use force enough to kill. This dissertation will address the issues posed by AWS. The focus will be on AWS that do not feature ‘meaningful human control’ during times of peace and armed conflict. Thus, unless otherwise stated, in this dissertation, all AWS discussed will be those that do not feature meaningful human control.
There are numerous benefits to AWS. For example, this technology has the potential to save the lives of soldiers charged with menial, dangerous tasks. Furthermore, AWS does not tire, become angry or frustrated and so on. Consequently, civilian lives may be saved by their use also. Additionally, AWS leaves a digital footprint that can effectively track events and bring criminals to justice, and AWS cannot wilfully commit a crime itself.
Nonetheless, AWS may make going to war far too easy and they pose a severe risk to human rights, including the right to life and dignity and the right to a remedy for a victim. The use of force is a key concern. Does AWS comply to international regulations concerning the use of force? Is the technology, a machine with the power of life and death over human beings, compatible with the right to dignity? A gap in accountability may be created in particular by AWS that do not feature meaningful human control and this could then impact the rights of victims to seek the protection of international law.
The legal duty of states under Article 36 of the Additional Protocol I to the Geneva Conventions to review new weapons will be investigated in this dissertation to identify a suitable legal reply to AWS. This duty will also be examined to assess to what extent AWS aligns with recognised standards. According to Article 36, it is required that new weapons be assessed to identify if they are acceptable in relation to several standards, including the human rights system, and whether they result in needless suffering. To begin, this dissertation asserts that AWS that are fully autonomous or have no meaningful human control are not, in fact, strictly weapons. These so-called ‘robot combatants’ should be dealt with carefully by the international community. After the elements of Article 36 are understood in detail, it is proposed here that it is appropriate to accept AWS that do not feature meaningful human control.
Regulations of International Humanitarian Law, including precaution, distinction, proportionality rules, are also used to examine AWS. Given that these rules were written to apply to humans and not to machines, which by their very nature cannot exert human judgement, machines will typically fail to satisfy the rules. In addition, the limits of the technology as it exists in the present day and the vague definitions of IHL terms mean that these definitions cannot be transformed into computer code.
In addition, the gap in responsibility created by AWS has the potential to have a negative impact on the rights of victims to pursue a remedy due to the question over who should be held accountable for the actions of AWS. The different types of accountability acknowledged in international law, including command responsibility, corporate, individual and state responsibility, are reviewed in relation to the difficulties posed by AWS. This discussion investigates current proposals for how to resolve these difficulties, including the concept of split responsibility and the argument that command responsibility can be applied to AWS. However, these solutions are found to be impracticable and defective.
This dissertation supports the findings of scholars who argue that meaningful human control can resolve the difficulties associated with AWS. However, international law offers no definition of this term, so jurisprudence concerning the concept of ‘control’ as a means of determining accountability is used to inform a definition in this dissertation. Tests, which include the strict control test and the effective control test, are discussed to examine ideas around ‘dependence’ and ‘control’, which are central to accountability. It is concluded that meaningful human control over a system of weapons can only exist when a human being is responsible for the functions of the system that relate to the selection of a kill target and the decision to execute an action. That is, human input is required for the completion of the most important functions of a weapons system. If that input is absent, the system should be incapable of carrying out these functions.
Este ensayo académico desarrolla la necesidad de una definición de la institución jurídica de los objetos de doble uso en el contexto de un conflicto armado internacional. Lo hace partiendo de las teorías actualmente existentes entre los doctrinarios y las cortes penales internacionales, a través de una demostración de que dichas teorías son insuficientes para garantizar los principios de atribución de responsabilidad en el derecho penal internacional. Tras el análisis correspondiente, se concluye que es necesario para garantizar la objetividad, el principio de legalidad y el principio de presunción de inocencia, que exista una definición de los objetos de doble uso, consensuada por la comunidad Internacional, con la finalidad de que el régimen correspondiente a los conflictos armados, el Derecho Internacional Humanitario, evolucione con la actualidad de las formas en las cuales se conducen las hostilidades, preservando sus principios fundamentales.
The ICC and the State of Victoria – A Case to Answer? (12 November 2022) DOI: 10.13140/RG.2.2.31540.32648 concluded with the observation that: 'We will have to ask the ICC-Prosecutor, pursuant to the Rome Statute, art 15. The prosecutor may ask the Pre-Trial Chamber under art 19(3)'.
This Petition now formally asks the OTP-ICC to consider the matter.
In the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the [Rome] Statute (ICC-01/09-01/11), the Pre Trial Chamber II, of the ICC found that the ICC could (and should) prosecute crimes where a State demonstrated an unwillingness or inability to prosecute.
Perhaps in The Hague Weltanschauung those in deepest darkest Africa are presumed to be criminals, whilst those in nice Australia are presumed to be acting in good faith? Would this subliminal racial bias prevent the ICC from treating Victoria Police and or State Victoria as an ‘organisation’ and ‘state actor’ respectively for the purposes of the Rome Statute?
We will have to ask the ICC-Prosecutor, pursuant to the Rome Statute, art 15. The prosecutor may ask the Pre-Trial Chamber under art 19(3).
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
This volume is one of the few books to explain in-depth the international crimes behind the scenes of substantive or procedural law. The contributors place a particular focus on what motivates participation in international crime, how perpetrators, witnesses and victims see their predicament and how international crimes should be investigated at local and international level, with an emphasis on context. The book engages these questions with a broad interdisciplinary approach that is accessible to both lawyers and non-lawyers alike. It discusses international crime through the lens of anthropology, neuroscience, psychology, state crime theory and information systems theory and draws upon relevant investigative experience from experts in international and domestic law prosecutions.
Criminal law has the specificity of being more repressive than other branches of law, such as administrative law and civil law. Doctrinally, the purposes of any criminal judgment are to restore the social justice for the committed offense, to correct (educate) the convicted person, and to prevent the convicted person from committing a new crime in the future. However, the analysis of practices of international criminal law has shown that the aim of the judgment of persons convicted for committing international crimes differs from the doctrinal criminal law approaches. Thus, the purposes of the judgment for persons convicted of committing international crimes comprise the restoration of social justice and the prevention of further crimes but not to assist in correcting the convicted person. This scientific work consists of the analysis of practices of international bodies, in particular practices of the International Criminal Court and the other International Criminal Tribunals, to respond to the question of why the correction of the convicted person is not engaged in International Criminal Law.
Right to fair trial is the basic human right and is the bedrock of any criminal justice system for upholding the rule of law. This basic human right is mostly misunderstood to be only meant for suspect or defendant only. The victims whose rights have been violated by the offender, stand helpless and neglected by the criminal justice system. Understanding the need of victims, various legal instruments are being drafted to protect their right to fair trial. Despite all attempts, the victim’s right to fair trial is not being protected completely and it is still violated across the globe. Where the victim’s right is acknowledged, the right to fair trial of the victim is only understood in terms of the restorative justice or compensatory justice. But the victim’s right to fair trial is much more than that, it includes the right to access to justice, participation, and redressal from the criminal justice system.
Faced with the absence of a generally accepted definition or list of ‘international crimes’, this chapter appraises the dominant approaches to define the term and shows how these varying approaches are constantly contributing to the problem of mapping the boundary of international criminal law (ICL). Although the concept of crime in international law has evolved over time, this chapter demonstrates that ICL still suffers from undertheorization on a number of important issues. Notwithstanding the phenomenal growth of ICL in the post-Cold War era, a coherent theory of why certain acts should qualify as international crime is yet to be formulated. The chapter argues that the recent trend of taking ICC’s substantive jurisdiction either for defining or classifying international crimes is not theoretically defensible. Finally, the chapter warns against using these theoretical shortcomings to delegitimize ICL.
The following discussion explores the potential for including trafficking in persons within the jurisdiction of international criminal courts and tribunals and examines the issues that arise when prosecuting trafficking under the charge of a crime against humanity or other inhuman acts. Trafficking in persons and its related activities is clearly a violation of both international rights standards and international criminal law. The Rome Statute of the International Criminal Court makes explicit reference to the crime of trafficking in persons as a crime against humanity under the enslavement provision. Enslavement “means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” The International Law Commission Draft Codes for Crimes against Peace and Security of Mankind states that the concept of enslavement captures slavery and is expanded to cover the actions taken to acquire or “maintain over persons a status of slavery, servitude or forced labour” and other exploitative practices found in the Supplementary Convention of Slavery. Article 7(1)(g) of the Rome Statute sets out an extensive list of sexual and gender-based crimes including rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization, thus offering the possibility to prosecute acts of sexual violence as an element of trafficking in persons.
Bu çalışmada, Çin Halk Cumhuriyeti tarafından Doğu Türkistan’lı Müslüman Türklere yönelik yürütülen soykırım politikası, Uluslararası Ceza Hukuku çerçevesinde irdelenmiştir. Çalışmanın ilk bölümünde, soykırım suçunun yasal tarihçesinden bahsedilmiştir. Bu çerçevede, soykırım kavramının etimolojik yapısı, Birleşmiş Milletler’in aldığı karar sonrasında imzaya açılan Soykırım Suçunun Önlenmesine ve Cezalandırılmasına Dair Sözleşme, uluslararası ceza mahkemelerinin kurucu statülerinde yer alan soykırım suçu kenar başlıklarına ve aralarındaki farklılıklara değinilmiştir. Çalışmanın gelişme bölümünde, Roma Statüsü’nün 6. Maddesinde yer alan soykırım suçunun unsurları ve Doğu Türkistan’da yaşanmış ve halen yaşanmakta olan olaylara değinilmiştir. Suçun unsurları kapsamında; soykırım suçunun faili, mağduru, maddi unsuru, manevi unsuru, suçun özel görünüş biçimleri ile soykırım suçunun Roma Statüsü’nde ihdasıyla birlikte korunmak istenen hukuksal değerler, uluslararası ceza mahkemesi kararları ve doktrin çerçevesinde açıklanmıştır. Doğu Türkistan’daki Müslüman Türklerin, geçmişten günümüze ve özellikle 2017 yılıyla birlikte yoğun bir şekilde yaşadığı olaylar ise sınırlı sayıdaki araştırmacı yazar, akademisyen ve uluslararası örgütlerin verilerine dayanmaktadır. Ayrıca Çin Halk Cumhuriyeti yetkilileri (gönüllü öğretmenler dahil) ve sivillerinin uyguladığı soykırım fiilinden kurtulup yurtdışına kaçmayı başaran Doğu Türkistan’lı Müslüman Türklerin; konferans, kongre, seminer ve diğer çeşitli toplantılarda paylaştıkları bilgiler ve gazetecilere verdikleri röportajlar da gelişme bölümünde yer almaktadır. Sonuç bölümündeyse; gelişme bölümünden elde edilen verilerle, Doğu Türkistan’da yaşanan olaylar sistematik olarak anlatılmıştır. Sonrasında soykırım suçunun ispatı için bu fiiller hem doktrinde yapılan açıklamalar hem de uluslararası ceza mahkemeleri kararlarıyla karşılaştırılmıştır. Karşılaştırmalar sonucunda, Doğu Türkistan’daki Müslüman Türklere yönelik soykırım suçunun işlendiği tespit edilmiştir.
The experimental philosophy of law is a recent movement that aims to inform traditional debates in jurisprudence by conducting empirical research. This paper introduces and provides a systematic overview of the main lines of research in this field. It also covers the most important debates in the literature regarding the implications of these findings for the philosophy and theory of law. It argues that three challenges arise when addressing (old) legal-philosophical questions in (new) experimental ways by drawing normative implications from empirical data: such implications are value-driven, depend on explanations of empirical findings and vary across legal systems.
The subject of this paper is the analysis of knowledge as a subjective element in terms of crimes against humanity in international criminal law. Starting from the fact that committing an act within a widespread or systematic attack against a civilian population is a circumstance that turns a "common" crime into a crime against humanity, the paper seeks to answer the question of whether knowledge of committing an act within such an attack is an independent subjective element and whether there is a unified position regarding the necessary content of knowledge in international criminal law. The paper is based on a linguistic, normative, systematic and comparative legal analysis of relevant provisions of international criminal law sources, a documentary analysis of sample judgments of the three most important international courts, as well as a case study that analyzes this subjective element in the legislation and case law of Bosnia and Herzegovina. The results of the research show that in terms of the independence of knowledge as a subjective element in crimes against humanity, there is a relatively consistent position in international criminal law, while in terms of the content of knowledge there is no such agreement.
The discourse about domestic violence has developed in patriarchal societies, and so we position our understanding of ‘mother’ within a patriarchal framework. We explore the ways in which ‘mothering’ and ‘mother blame’ have been constructed within that framework and how this becomes relevant in the context of domestic violence and child welfare social work. We review literature from Australia, Canada, England and Wales, and the United States of America that has focused on child welfare responses to mothers experiencing domestic violence and abuse. On the basis of that review, we argue that mothers are responsibilised for violence and abuse they do not perpetrate. We show that the way legislation operates in some jurisdictions facilitates hegemonic, patriarchal constructions. We call for a review of current child welfare social work policy and practice in which domestic violence is present.
Croatian and Serbian War Crimes, the International Criminal Tribunal for the Former Yugoslavia, and the Judicial Systems of Serbia and Croatia
The war in former Yugoslavia (1991–1995) was marked by war crimes which still affect Serbian–Croatian political relations. The International Criminal Tribunal for the former Yugoslavia (ICTY), which operated between 1993–2017, was supposed to pass fair verdicts on those responsible for war crimes, but its verdicts have been surrounded by controversy in Post-Yugoslav states. The article analyzes Serbian and Croatian war crimes in Croatian territory between 1991–1995 as well as the verdicts passed by the ICTY against the most prominent war criminals. The actions taken by the Serbian and Croatian judicial systems are also discussed. The analysis presented in the article indicates that the verdicts delivered by the ICTY were selective and difficult to accept for both sides of the conflict. Unfortunately, Serbo-Croatian cooperation on war crimes has been developing for only a few years and has not produced the expected results. For these reasons, war crimes and war criminals still have a negative influence on political and social relations between the Republic of Croatia and the Republic of Serbia.
Chorwackie i serbskie zbrodnie wojenne, Międzynarodowy Trybunał Karny da Byłej Jugosławii oraz serbski i chorwacki wymiar sprawiedliwości
Kwestia zbrodni wojennych i obiektywnego osądzenia zbrodniarzy wojennych jest wysoce problematyczna. Bezspornie wojna w byłej Jugosławii z lat 1991-1995 była tragiczna w skutkach i naznaczona wydarzeniami, którym można nadać miano zbrodni wojennych. Międzynarodowy Trybunał Karny dla Byłej Jugosławii (MTKJ) funkcjonujący w latach 1993-2017 miał w założeniu sprawiedliwie osądzić osoby odpowiedzialne za zbrodnie wojenne. Niemniej jego działalność (orzeczone kary) wzbudza pewne kontrowersje, a co za tym idzie może być i jest krytycznie oceniana. W artykule przedstawiono syntetyczną analizę serbskich oraz chorwackich zbrodni wojennych mających miejsce na terytorium Chorwacji w latach 1991-1995. Następnie odniesiono się do kar orzeczonych przez MTKJ wobec najważniejszych zbrodniarzy wojennych. W tym też aspekcie zwrócono uwagę na aktywność serbskiego i chorwackiego wymiaru sprawiedliwości. Analiza zawarta w artykule potwierdza tezę że wydawane wyroki przez MTKJ odznaczały się selektywnością, dlatego też w niektórych przypadkach były one trudne do zaakceptowania przez obie strony konfliktu. Niestety serbsko-chorwacka współpraca w zakresie zbrodni wojennych rozwija się dopiero od kilku lat i nie przyniosła oczekiwanych rezultatów. Z tych też powodów zbrodnie wojenne i zbrodniarze wojenni nadal mają negatywny wpływ na stosunki polityczne i społeczne między Republiką Chorwacji a Republiką Serbii.
The Latin term culpa on the legal ground is usually associated with responsibility for torts. Many of the contemporary works link this legal construction with Roman law, which till now is praised for its concision and clarity. Yet not all Roman sources present the clear dogmatic view on this point. Being permeated with rhetoric the Theodosian Code offers various meanings of this term, which considerably differ from the ideas elaborated by the classical Roman law. Nevertheless the code played substantial role in the process of development of law in the Medieval Europe.
One of the most significant developments in international law was the establishment of Special Tribunals that could bring to justice individuals allegedly responsible for “grave breaches” and violations of the law against humanity. This is, undoubtedly, a recent global development that has challenged the issues of impunity and sovereignty. Since the Nazis’ atrocities and the Nuremberg trials, war crimes law has broadened its scope and has recognized a number of offenses considered as “international crimes” and which have also come to be described as “genocide”. However, although intended to put an end to the politics of impunity for the perpetrators of these crimes, a number of signatory states are reluctant to bring to justice those responsible for these defined international crimes. Indeed, the jurisprudence developed in these Special Tribunals provided an impetus for the development of the Rome Statute for the International Criminal Court (ICC). More specifically, it has been argued that war crimes and crimes against humanity are committed by men, not by abstract entities, and only by punishing individuals who commit such heinous crimes can the provisions of international law be enforced and realized. However, a perfectly reasonable case can be made that the creation of these tribunals does represent a new era in international law.
The phenomenon of child soldiers encompasses up to half a million of adolescents around the world and is – without a doubt – one of the most pressing humanitarian problems of contemporary armed conflicts. This article aims at addressing this issue by examining an ongoing trial of Dominic Ongwen before the International Criminal Court. The first part is dedicated to the description of Dominic Ongwen’s life through the prism of the ‘victim’ and ‘perpetrator’ labels. In this respect I try to prove that in many situations these two labels do not fit the social reality which they are supposed to classify or categorize. In the second part, I refer to the taxonomy of defences, justifications, excuses and grounds for excluding criminal responsibility in domestic and international criminal law. I also analyse concepts of duress and necessity as they are codified in the Rome Statute of the International Criminal Court. On these basis, I give a negative answer to the question if Dominic Ongwen will be able to effectively invoke one of these defences in order to limit or exclude his criminal responsibility, while in conclusions I also provide a short assessment of ‘the law as it is’.
The Genocide Convention, drafted by the United Nations soon after the Nuremberg trials, represented a significant step toward the establishment of a regime of individual accountability for violations of international law. The Convention compels its signatories to prevent and punish certain enumerated acts committed with the intent to destroy, in whole or in part, a national, ethnic, religious, or racial group. Even though the Khmer Rouge era is widely considered a paradigmatic case of genocide, this article takes as its premise that much of the violence in Cambodia during the Khmer Rouge era (1975-78), in which almost a fifth of the population was executed or killed by being worked or starved to death, may not constitute genocide according to the strict definition of the offence contained in the Convention. This is because the Genocide Convention, unlike other international legal instruments, limits the protected classes to national, ethnic, racial, and religious groups. As such, the Extraordinary Chambers in the Courts of Cambodia (ECCC) may rule that the definition of genocide does not cover a significant portion of the deaths in Cambodia. This example illustrates a critical shortfall of the Genocide Convention. After protracted debate, the drafters of the Genocide Convention expressly excluded "political groups" from Article II. An examination of the travaux préparatoires of the Convention reveals the compromises - born of politics and the desire to insulate political leaders from scrutiny and liability - that can occur when political bodies attempt to reduce customary law principles to positivistic expression. The exclusion of political groups from the Genocide Convention represents one such compromise. This Article argues that no legal principle can justify this blind spot. The Article also suggests that the Genocide Convention may not be the sole authority on the crime of genocide. Rather, a higher law exists: The prohibition of genocide represents the paradigmatic jus cogens norm, a customary and peremptory norm of international law from which no derogation is permitted. The jus cogens prohibition of genocide, as expressed in a variety of sources, may be broader than the Convention's prohibition, as has been demonstrated with respect to the jurisdictional principles applied to acts of genocide. Notwithstanding that the framers of the Genocide Convention attempted to limit the prohibition of genocide by deliberately excluding political groups from Article II, this provision is without legal force to the extent that it is inconsistent with the jus cogens prohibition of genocide. Therefore, when faced with mass killings evidencing the intent to eradicate political groups in whole or in part, domestic and international adjudicatory bodies should apply the jus cogens prohibition of genocide and invoke the Genocide Convention vis-à-vis signatories only insofar as it provides practical procedures for enforcement and ratification. As an overarching theme, this Article discusses the multiplicity of sources in international law and they way in which treaty and customary law rules diverge and interact over time.
Unlike many aspects of the criminal law, defenses have not yet been the subject of comprehensive conceptual analysis. The general nature and scope of most defenses have been perpetuated for centuries with little or no question. Current debates commonly focus on whether a particular defense should apply in a particular circumstance, but rarely consider the larger perspective. How do circumstances covered by one defense compare with those of other defenses? Do defenses overlap? If so, will the outcome in identical situations vary with the defense asserted? Should it? Are there gaps between defenses, that is, circumstances in which our common sense of justice suggests that the defendant should be exculpated, yet where no defense applies? Do defenses based on theoretically analogous grounds of exculpation generate analogous results? The general inquiry, which seems never to have been undertaken, is: how does the collection of recognized defenses operate as a system? In sharp contrast to this neglect of defenses, the American criminal law community has examined in detail the full range of offenses and their interrelation. Led by the drafters of the Model Penal Code, states have during the past two decades adopted modern criminal codes that replace a confusing and inconsistent collection of offenses with a thoughtfully organized system. The jumble of offenses in older codes was commonly drafted ad hoc, in response to one highly publicized incident or one anti-crime crusade after another. Modern codes, in contrast, define and arrange all offenses according to a single definitional scheme based on the central elements of the offense: the nature of the interest injured, the extent of the injury, and the culpability of the offender. The result is a significant consolidation of related offenses, few overlaps, few gaps, and a consistency in the organization of offenses that permits the comparisons and classifications necessary for a fair sentencing system. There are, no doubt, many people who believe that defenses defy such systemization. Defenses, it might be argued, are the embodiment of such complex human notions of fairness and morality, tempered by the demands of utility and efficiency, that they are too complex and perhaps too illogical to be reduced to an integrated, comprehensive, and internally consistent system of exculpation. This may well be true, but the complexity and perhaps irrationality of human judgments have not deterred us in other instances, especially in the law, from attempting to devise a principled system that attempts to approximate such judgments. Advances in the behavioral sciences have repeatedly demonstrated that some systemization of human thought is possible, even though it may have absolute limits. While we may not be able to reduce our feelings about exculpation to a precise final form, the level of sophistication in examining, understanding, and setting down the most fundamental principles seems to have fallen far behind our attempts to explicate our notions of justice in other legal areas, including criminal justice matters such as offense definition and procedural fairness. This Article attempts to provide some measure of conceptual organization for criminal law defenses that may foster a more refined system of defenses analogous to the system of offenses and offense definition embodied in most modern criminal codes. Part I of the Article describes a general conceptual framework for such a system; part II discusses the practical implications of the framework.
This work assesses a major innovation in the field of international criminal law. It provides in-depth analysis of the operation of these specialized courts and considers the prospects for further application of internationalized courts.
The book studies the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military commander, a civilian leader or the leader of a terrorist, paramilitary, or rebel group could be held criminally responsible in relation to crimes committed by subordinates even where he has taken no direct or personal part in the commission of these crimes. The basis of this type of liability lies in a grave and culpable failure on the part of the superior to fulfil his duties to prevent or punish crimes of subordinates. Though it first developed in the international arena, the doctrine of superior responsibility has now spread into many domestic jurisdictions, thus offering judicial and prosecutorial authorities a ready-made instrument to hold to account the leaders of men who knew of the crimes of their subordinates and failed to respond adequately to prevent or punish those crimes. This book provides a dissection of the doctrine of superior responsibility, the scope of its application, its elements as well as the evidential difficulties involved in establishing the criminal responsibility of a superior in the context of a criminal prosecution.
The contribution of the ad hoc tribunals to international criminal law and international justice has been manifold, both academically and historically, and they will continue to influence the findings and decisions of many other courts (both domestic and international), provoking discussion for many years to come. This volume provides the first comprehensive analysis of the law of international crimes as applied by the ad hoc tribunals for the former Yugoslavia and Rwanda. This book examines the legal and historical significance of some of the most important judicial developments to occur in the last fifty years in international criminal law. It states the law of the tribunals, and provides concrete illustrations of the application of the law to a variety of criminal cases, providing a comprehensive and detailed analysis of this voluminous body of jurisprudence. The primary focus is on the jurisdiction ratione materiae of the tribunals: the definition and application of the law of war crimes, crimes against humanity, and genocide. However, it also examines the tribunals' jurisdiction ratione personae, insofar as this enables a full understanding of the law of crimes (for instance, in relation to forms of criminal liability).
Husak reprints 15 of his earlier essays in the philosophy of criminal law (and add two previously unpublished pieces) collected from philosophy journals, law reviews, and book chapters. These articles cover a broad range of topics about the nature of penal liability, criminal law culpability, defences, and the justification of punishment. Together, these essays present a desert-based analysis of issues in criminal theory that resist the consequentialist approach more familiar among legal scholars. The author's foremost concern is to ensure that the principles and doctrines of the criminal law preserve justice and do not sacrifice individuals for the common welfare. Although Husak draws equally from existing criminal law and contemporary moral and political philosophy, readers need neither a Ph.D. in philosophy nor a J.D. in law to understand and assess his essays.
There have been three recent decisions issued by different chambers of the Extraordinary Chambers in the Courts of Cambodia
(ECCC) on the applicability of joint criminal enterprise (JCE) liability. These decisions have firmly established the first
two forms of JCE (the basic and systemic forms) as valid modes of liability at the ECCC. However, the validity of the third
(extended) form of JCE at the ECCC is doubtful in light of a decision of the ECCC Pre-Trial Chamber rejecting its applicability
at the ECCC. The Pre-Trial Chamber's decision is an interesting development in JCE jurisprudence due to the Chamber's independent
analysis of the applicability of JCE. The Pre-Trial Chamber did not simply adopt the reasoning of the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia (ICTY) — the Chamber that first articulated the elements of JCE
as a mode of liability existing under customary international law — and disagreed with the ICTY Appeals Chamber’s conclusion
on the existence of the extended form of JCE under customary international law.
Today's definition of torture is radically different from torture as understood in medieval times. The jurisprudence of the
ad hoc tribunals has furthered our understanding of ‘modern torture’ as it confronts unique contemporary challenges: non-state
and even private actors committing seemingly random acts of violence, often unconnected to their old venues: criminal proceedings,
corporal punishment and forced confessions. In the first part the author systematizes the various elements of torture (from
the actus reus, to the requisite mens rea, to cumulative convictions and sentencing) under international criminal law. In part two the author reviews two developments
in the definition of torture. While the article's analysis supports the expansion of the list of prohibited purposes (because
torture is a crime which grossly violates the autonomy of human beings), the author criticizes the deletion of the official
sanction requirement, because in his view, international criminal justice deals not with torture as a discrete crime, but
rather with torture as a war crime and crime against humanity.
On 14 March Trial Chamber I (hereinafter ‘the Chamber’) of the International Criminal Court (‘ICC’ or ‘the Court’) delivered the long awaited first judgment of the Court (‘the judgment’). This comment focuses exclusively on the legal issues dealt with in the judgment but pretends to do this comprehensively. It critically analyses the following five subject matters with the respective legal issues: definition and participation of victims; presentation and evaluation of evidence; nature of the armed conflict; war crime of recruitment and use of children under fifteen years (Article 8 (2)(e)(vii) ICC Statute); and, last but not least, co-perpetration as the relevant mode of responsibility, including the mental element (Article 25, 30). While this paper follows the order of the judgment for the reader’s convenience and to better represent the judgment’s argumentative sequence, the length and depth of the inquiry into each subject matter and the respective issues depend on their importance for the future case law of the Court and the persuasiveness of the Chamber’s own treatment of the issue. The paper concludes with some general remarks on aspects of drafting, presentation and referencing.
This contribution reviews shortcomings of the grave breaches system as they have evolved in recent jurisprudence and state
practice. It first considers textual problems identified by the International Criminal Tribunal for the former Yugoslavia
in this respect and evaluates the solutions applied by the Tribunal. Second, the article will assess shortcomings of law and
practice related to the application of universal jurisdiction addressing the question of whether failures are political or
legal. In the light of such shortcomings, the article will discuss the issue of universal jurisdiction over war crimes as
a permissive rule of customary law. Finally, some conclusions are drawn, with a view to outlining some of the remaining problems
for the prosecution of serious violations of international humanitarian law, and developing effective solutions.
This article considers the contribution of the International Criminal Tribunal for the former Yugoslavia (ICTY) to the grave
breaches regime as the first body to systematically apply these provisions, and argues that the jurisprudence has breathed
life into the regime. It has clarified when grave breaches may apply, through the elucidation of the ‘overall control’ test
in establishing the internationality of a conflict; how the regime may be applied in a practice, through the operation of
a nexus requirement; and who may benefit from the protection of the regime, through a modern interpretation of ‘protected
person’. It is argued that the ICTY has significantly contributed to the definition of underlying grave breaches. With respect
to torture, the contribution has been both with respect to the identification of comprised acts, such as rape and other abuses
of a sexual nature, as well as in distinguishing the definition from that applied under the Torture Convention. Concerning
unlawful confinement, the contribution has focused on interpreting the interaction of different provisions of Geneva Convention
IV to bring the breach to life. Ironically, some of these positive contributions may have had the unintended consequence of
reducing the role of grave breaches in the charging practices of the Prosecution.
Article 32(2) of the Rome Statute provides that ‘[a] mistake of law may … be a ground for excluding criminal responsibility if it negates the mental element required by such a crime’. Although this provision has been described as ‘cryptic’, I argue in this essay that it was specifically drafted to recognize what common-law scholars have variously called ‘mistake of mixed fact and law’, ‘mistake of legal fact’, and — most usefully — ‘mistake of legal element’: namely, a mistake regarding the definition of a legal element in a crime. A perpetrator who commits a mistake of legal element (MLE) cannot be said to have acted ‘knowingly’ with regard to that element, and is thus entitled to an acquittal if the element requires knowledge. Although most scholars accept the idea that at least some MLEs are exculpatory under Article 32, they uniformly insist that very few MLE defences will be successful. I disagree, for three reasons. First, nearly every crime in the Rome Statute contains at least one legal element. Second, the methods that the drafters of the Elements of Crimes used to limit MLEs — providing that legal elements only require knowledge of the underlying facts and replacing Article 30's default knowledge requirement with a simple negligence standard — are almost certainly inconsistent with the Rome Statute. Third, all of the mechanisms that scholars have proposed to limit MLEs — such as subjecting them to German criminal law's ‘layman's parallel evaluation’ test — are inconsistent with Article 32's common-law foundations. Properly understood, therefore, Article 32 potentially recognizes a wide variety of exculpatory MLEs. That is a disturbing prospect, because there is no reason why soldiers should not be expected to have at least a reasonable understanding of international humanitarian law. I thus conclude the essay by arguing that MLEs should be eliminated by specifically amending the Rome Statute to apply a negligence standard to legal elements.
Superior responsibility is a concept for attributing criminal liability to military commanders and other superiors that is
employed with some frequency in the ad hoc international criminal tribunals. Nevertheless, it remains unclear for what the
superior is actually blamed. The author argues that with respect to superior responsibility as construed in Article 28 ICC
Statute the answer to this question depends on the form of superior responsibility for which the accused is found guilty.
If the superior is held responsible for not having prevented or repressed the subordinate's crime even though the superior
knew of the crime, he or she can be blamed for both, the criminal conduct of the subordinate and the wrongful consequence
caused by it. For all other forms of superior responsibility, the superior can only be blamed for his or her failure to exercise
control properly, which resulted in a wrongful consequence, but not for the criminal conduct of the subordinate.
The future of the grave breaches regime is impossible to predict with any degree of accuracy — the grave breaches regime has developed in terms that those who negotiated the Geneva Conventions did not foresee, and we are no better situated to guess how the coming decades will unfold. Nonetheless, three possible futures are plausible. In the first, the grave breaches regime may remain segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial pragmatism has diminished aspects of the grave breaches regime that were once unique, grave breaches still offer important features over and above all alternatives. The grave breaches regime is therefore unlikely to disappear entirely. A third possible future involves assimilating the grave breaches with other categories of war crimes, ideally through the promulgation of a more coherent treaty regime. In the short term, this proposition appears politically untenable, leaving judges to unify the stark disparities between grave breaches and other war crimes. A future that continues to adopt this course will nonetheless pose serious problems for the discipline in the years to come.
After decades of little reflection on the General Part of International Criminal Law (‘ICL’), the practice of the Ad Hoc Tribunals
and Part III of the ICC Statute both offer a unique opportunity and create a necessity to give more thought to the rules of
attribution for international crimes. Indeed, the aim of further research must be to develop a more refined system of attribution.
This is especially important in ICL, since it is primarily concerned with high level perpetrators who rarely commit the crimes
themselves but use mid- or low-level perpetrators to execute their criminal plans. While ICL ‘in action’ is recognized today
as primarily criminal law, the rules of attribution are still underdeveloped. Some rules developed by the case law even violate,
when applied in their extreme form, fundamental principles of criminal law. Identifying and applying these principles, specifically
the principles of legality and culpability, will be the first step in constructing a more legitimate system of attribution.
The joint criminal enterprise doctrine appears more and more as the ‘magic weapon’ in the prosecution of international crimes.
Yet, the doctrine not only gives rise to conceptual confusion and conflicts with some fundamental principles of (international)
criminal law but also invades the traditional ambit of command responsibility liability. This becomes obvious if both doctrines
are applied simultaneously in cases against accused with some kind of superior position. After a short introduction on both
doctrines, as interpreted in modern case law, the article gives some examples of their simultaneous application and tries
to develop distinguishing criteria in light of the case law and a ‘dogmatic’ analysis of both the doctrines. A reference to
the theory of ‘Organisationsherrschaft’ shows that there is yet another option to impute international crimes to top perpetrators.
In his application for the issuance of an arrest warrant against the President of Sudan, Omar Hassan Ahmad Al Bashir, the
Prosecutor of the International Criminal Court argued that Al Bashir did not physically or directly carry out genocide, crimes
against humanity and war crimes but committed these crimes through members of the state apparatus, the army and the militia.
It is the first time that a prosecutor before an international tribunal exclusively bases the charges on the concept of perpetration-by-means.
This comment discusses the Prosecutor's application, explores the appearance of the theory of indirect perpetration in international
law, and tracks down the roots of the theory of perpetration-by-means of a hierarchical organization in German criminal law.
The authors find that charging Al Bashir as an indirect perpetrator appears to be an appropriate description of his involvement
in the alleged crimes indeed, given the explicit inclusion of perpetration-by-means in Article 25(3)(a) ICC Statute and the
interpretation of Article 25(3) by the Pre-Trial Chamber in Lubanga as well as, most recently, in Katanga and Chui. They further submit that the concept of indirect perpetration could possibly become a key mode of liability in international
criminal law.
In March 2008, the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber advocated in Seromba the general applicability
of an approach, already propounded in previous judgments, which considerably broadens the notion of commission. It held that
‘committing’ is not limited to physical perpetration, thus implying that customary international law recognizes other forms
of commission liability, which are distinct from joint criminal enterprise. As a result, the Appeals Chamber reversed the
Trial Chamber's decision and held that Father Athanase Seromba's role in the massacre of April 1994 in the Nyange parish was
not that of an aider and abetter, but rather of a principal perpetrator. While clearly motivated by the intent to impose an
exemplary sentence on Seromba, the Appeals Chamber's reasoning lends itself to a number of objections.
The concept of a Joint Criminal Enterprise (JCE) has become a useful tool in international criminal law. It allows courts to hold individuals criminally liable for group activities to which they have contributed in a criminally relevant way. The concept allows for an attribution of criminal responsibility of unforeseen consequences of such group activities, and it seems to enable the prosecution and the courts to extend criminal liability to high-level perpetrators that use subordinated persons for their criminal aims. The advantages of such a tool are obvious since the crimes under international criminal law are mostly of a systematic, large-scale and collective character, while domestic criminal law mainly deals with less complex crimes that are normally committed by individuals who can easily be linked to the crime. Due to this empirical or criminological fact, it seems logical that the normal modes of liability for parties to a crime used in domestic criminal law need to be adapted, and that a rather extensive assignment of criminal liability for secondary parties is justified in international criminal law. This article seeks to question this assumption by undertaking a comparative analysis of domestic modes of liability. The author aims to show, on the one hand, to what extent the concept of JCE is in line with the general concept of parties to a crime in domestic criminal law. On the other hand, the author argues that abandoning the idea of JCE as an independent mode of liability may lead to better compliance with the principles of legality and individual criminal responsibility and thereby increase the legitimacy of international criminal law.
The December 1999 judgment of the ICTY in the Jelisic case is the first ruling on the merits from that court dealing with an indictment for genocide. The Trial Chamber concluded that the Prosecutor had failed to prove that genocide was committed and that consequently the accused could not be convicted as an accomplice to the crime. It went on to examine whether despite the absence of genocide on any widespread or systematic basis it was still possible for an individual, driven by genocidal intent, to commit one of the underlying crimes such as killing or causing serious bodily or mental harm. The Trial Chamber considered this a plausible hypothesis but ruled that this did not correspond to the facts of the case. Since the Jelisic ruling, the Preparatory Commission of the International Criminal Court has attempted to eliminate the lone génocidaire scenario in the Elements of Crimes. While the law remains unsettled, awaiting clarification from the Appeals Chamber, a wise prosecutorial policy would be to reserve international genocide prosecutions for serious cases involving organized and widespread crimes. Exaggerated attention to individual and isolated cases is a questionable use of valuable resources and risks diluting some of the terrible stigma now attached to the “crime of crimes.”
Why is it that intention, or intent, one of the basic concepts of the criminal law, remains so unclear? Judges decline to define it, and they appear to adjust it from one case to another.
Part of the trouble is the disagreement on the subject of intention amoung jurists generally. The Philosophers who have lately arrived on the scene, hoping to help the lawyers to slove their legal problems, in fact give only limited assistance. Their philosophical interest stems from the fact that intention is an important ethical concept, but they do not relate their discussions to any particular ethical concept, but they do not relate their discussions to any particular ethical theory, and they do not sufficiently consider the specific requirements of the criminal law. Indeed, they mix up the ordinary meaning of the word “intention” with its desirable legal meaning. To be sure, the meaning of intention as a technical term of the law ought to be close to the literary and popular one, but there are sound reasons for saying that the two should not always be indentical.
International law has historically been more concerned with the regulation of international, rather than internal, armed conflict.
As an integral part of this regime, aimed specifically at the violation of particular rules relating to international armed
conflict, the grave breaches provisions of the Geneva Conventions and Additional Protocol I have no apparent relevance to
internal armed conflict. This article argues that the concept of grave breaches has, nonetheless, impacted in a significant
way upon both the substantive laws of internal armed conflict and their criminal enforcement against individuals. Whether
the law has developed to a point where grave breaches can equally be committed during internal armed conflict, or where violations
of the laws of internal armed conflict can be considered grave breaches such that the obligations to investigate those offences
and to prosecute or extradite offenders now also apply — either through the adoption of a teleological approach to the Geneva
Conventions, or else through the development of a new customary rule to that effect — is rather more dubious.
The following paper has a limited objective. It describes and critically analyses the general principles of the Rome Statute (arts. 22–33). The drafting history of these provisions has been described elsewhere. The analysis can be divided into three parts. First, it is necessary to look at the general principles in the strict sense. In addition to the nullum crimen and nulla poena principles (arts. 22–24), this category includes some provisions in Part 2 of the Statute (“Jurisdiction, Admissibility and Applicable Law”): the ne bis in idem rule (art. 20) and the provision on applicable law (art. 21). Second are the norms providing for individual criminal responsibility (arts. 25, 28, 30), provisions which can be further subdivided into objective elements (actus reus) and subjective elements (mens rea) of individual criminal responsibility. The third category covers defences, in particular the substantive grounds excluding criminal responsibility (arts. 26, 27, 29, 31–33).
The Geneva Conventions were adopted 60 years ago. Today, they are universally ratified. Notwithstanding their universal adherence
as treaty law, the customary nature of the provisions of the Geneva Conventions remains relevant. This article examines the
claims that the Geneva Conventions, in general, are part of customary international law. Beyond this level of generality,
it argues that the grave breaches regime is part of customary international law, including the definition of the grave breaches
as well as the procedural rules governing grave breaches. The latter include the obligation to enact effective penal sanctions
in domestic law and the obligation to search for and to try or extradite persons suspected of grave breaches on the basis
of universal jurisdiction. The article argues that these rules are not simply ‘technical’ rules but are ‘fundamental to the
respect of the human person and [humanity]’, a phrase used by the International Court of Justice when examining the customary
nature of the Geneva Conventions.
The
permanence of the genocide definition
1
over more than five decades is remarkable considering how much criticism has been directed against it since the adoption of the Genocide Convention in 1948.
2
The existence of a stable internationally agreed definition of genocide presents indubitable advantages, particularly if compared with the lasting uncertainties in the definition of other international crimes, such as crimes against humanity. However, the genocide definition is also characterised by a number of problematic aspects and unresolved interpretative questions, some of which have been addressed in the decisions of the
ad hoc
Tribunals for the Former Yugoslavia and for Rwanda.
3
Divergent approaches to the
mens rea
requirement, to the definition of the four protected groups against whom genocide can be committed, or to the identification of acts that constitute genocide had been confined to an exclusively academic ambit until not long ago, but can now be determinative of an acquittal or conviction. With the exception of one decision by the ICTY,
4
all other judgments on genocide have come from the ICTR, in whose custody are some of the most prominent members of the interim government and of the militias accused of having organised and carried out the 1994 Rwandan genocide.
5
Despite 50 years of doctrinal evolution, the mens rea for command responsibility is still unclear. Four factors help explain this. First, international courts frequently borrow
mens rea terminology from national legal systems without adequately understanding or explaining differences in how those terms are
used. Second, courts and commentators often neglect to engage explicitly in an element-by-element analysis of mens rea requirements, simply (and wrongly) assuming that the same mental state must apply to each element of an offence. Third, courts
sometimes react to evidentiary uncertainty by creating legal uncertainty. Finally, courts have responded to normative criticism
of command responsibility doctrine in its more expansive versions, but have been unwilling to explore the normative arguments
in favour of it. Normative arguments about command responsibility doctrine must take account of differences between ordinary
municipal criminal law and international criminal law, including the origins of command responsibility in the laws of war,
and the special factual contexts in which it is applied. The article argues that there is solid (though not incontrovertible)
support in customary international law for holding superiors liable when they culpably fail to acquire knowledge of their
subordinates’ misdeeds, and that there are strong retributive and utilitarian arguments for such an approach. International
courts should adopt such a ‘duty of knowledge’ standard.
With the establishment of the International Criminal Court (ICC) the first comprehensive codification of international criminal law (ICL) was achieved. The strong support of the ICC by civil society, academic institutions and more than hundred states has quickly turned the ICC Statute and its complimentary norms into the fundamental reference points of modern ICL. As to ‘defenses’, however, the Statute is silent; it does not even mention this term. The drafters consciously avoided certain ‘catch words’ too closely associated with either the common law or civil law system. They wanted to make sure the Statute would be truly universal and would not be interpreted by way of a recourse to a specific national system. Article 31 of the ICC Statute contains explicit rules regarding ‘grounds for excluding criminal responsibility’ distinguishing between mental disease or defect, intoxication, self-defense, and duress/necessity. This list is not exhaustive. Pursuant to article 31 (2), the Court may consider others grounds for excluding individual criminal responsibility. These are first and foremost other defenses provided for in the Statute such as mistake of fact and mistake of law (article 32) and superior orders (article 33). In addition, other grounds may arise from any source of law as referred to in Article 21 ICC Statute, especially from customary international law or general principles of law. In this regard, the classical humanitarian law defenses of military necessity and reprisal are or particular importance (see the discussion of Other Defenses, infra.) The case law, especially from the UN ad-hoc tribunals for the former Yugoslavia and Rwanda, may serve as an important source aiding in the interpretation and application of these defenses. Apart from these substantive defenses relating to the conduct in question, the ICC Statute also provides for procedural defenses addressed to the jurisdiction and the right of a court to try an accused. The latter include for example the exclusion of jurisdiction over persons under eighteen years (Art. 26), immunities (Art. 27) as well as amnesties and the statute of limitations not regulated in the Statute. These procedural defenses are beyond the scope of this paper but are partly treated in other chapters of this handbook. The following analysis will follow the structure of articles 31–33 and complement these with some considerations on other defenses.
The nature of command responsibility is still open to debate in international criminal law: is a superior to be held criminally responsible for the crimes committed by his subordinates as an accomplice , for having participated in the commission of the crime by omission, or as a perpetrator of a separate offence of dereliction of duty? This article surveys the post-WW2 case law and the first international instruments on this point, and then analyses the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The judges appear to have recently adopted a new approach to Article 7(3) ICTYSt. in that the superior is held responsible for failure to prevent or punish with regard to the crimes of the subordinate and no longer for the crimes of his subordinates . It is a responsibility sui generis indeed, where the crime of the subordinate plays a central role in the attribution of responsibility to the superior. It is, therefore, necessary to carefully consider the relationship between the superior's failure to act and the subordinate's crime, both with regard to objective and subjective elements. The same question finally arises in relation to Article 28 of the Rome Statute, the literal interpretation of which implies that a superior shall be punished for the same crime committed by his subordinates. In order to avoid the risk of holding a person guilty of an offence committed by others in violation of the principle of personal and culpable criminal responsibility, it is crucial to consider separately the different cases of command responsibility, which are based on distinct objective and subjective requirements.
More than a decade has passed since the establishment of the two ad hoc Tribunals, however, the jurisprudence of both Tribunals evidence the inconsistency regarding the requisite mens rea standards for serious violations of international humanitarian law. Hence, a survey of the attitude taken towards the definition of the major facets of mens rea by the world major legal systems is of great significance with regard to the establishment of a unified concept for mens rea in international criminal law. Section I of this study examines some of the major judgments of the two ad hoc Tribunals where both Tribunals refers to national jurisdictions in order to clarify the mens rea required for the imposition of criminal responsibility for serious violations of international humanitarian law. Section II is a brief outline of the structure of the criminal offence in German criminal law. This is necessary since German criminal law does not follow the “offence analysis” scheme known in common law countries, but is based upon a three stage structure of the criminal offence. In Section III, the concept of intention (Vorsatz) in German criminal law is thoroughly discussed and analysed. This includes the discussion of dolus directus (first and second degree) as well as of dolus eventualis. Emphasis is put on the differentiation between dolus eventualis and negligence, since it reflects a highly debated issue in German criminal law. The concept of negligence will be outlined in Section IV. Given the fact that the German criminal law recognizes that mistake of law and mistake of fact (Tatbestandsirrtum, Verbotsirrtum) is not a separate doctrine, but part and parcel of the basic analysis of mens rea, these two basic types of mistake will be addressed in Section V. This includes the discussion of error in persona vel obiecto and aberratio ictus. Finally, the conclusion will be supported by some remarks and recommendations regarding the German law of intent and its influence on the development of international criminal law.
Even though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea - remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms “specific intent”, “special intent”, “dolus specialis”, or “surplus intent”? Similarly, what are the precise meanings of the terms “deliberately”, “intention”, “intent”, “intentionally”, “wilful or wilfully”, “knowledge”, and “wanton” as provided for in the ICTY Statute or as employed by the Chambers within its judgments.
From its initial codification in the 1948 Convention on the Prevention and Punishment of Genocide to its most recent inclusion in the Rome Statute of the International Criminal Court, the international crime of genocide has been defined as involving an "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The predominant interpetation of this language views genocide as a crime of "specific" or "special" intent, in which the perpetrator deliberately seeks the whole or partial destruction of a protected group. This Note pursues an alternate approach. Relying on both the history of the Genocide Convention and on a substantive critique of the specific intent interpretation, it argues that, in defined situations, principal culpability for genocide should extend to those who may personally lack a specfic genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions.
The author argues that the Commission of Inquiry on Darfur, in excluding any genocidal intent in the Government authorities of the Sudan, while leaving open the possibility for individual state officials or members of militias to entertain such intent, did not duly take into account the various views on genocidal intent put forward in legal literature. In the author's opinion, genocide -- typically, that is, for all practical purposes -- requires a collective activity of a group, state or entity -- activity in which individual perpetrators participate. As for the genocidal intent of individual perpetrators -- in this typical scenario, according to the author -- one should distinguish between (i) the view, upheld by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as the Commission of Inquiry, that such intent is the aim physically to destroy a protected group, and (ii) the more correct view that such intent consists of the individual's (a) knowledge of a genocidal campaign and (b) at least dolus eventualis as regards the at least partial destruction of a protected group. This legal construction of genocidal intent does not, however, lead to conclusions substantially different from those reached by the Commission of Inquiry with regard to the mental attitude of the Sudanese Government and militias: as they did not act pursuant to a collective goal to destroy a protected group, no genocidal intent could materialize. However, contrary to the Commission's conclusions, it follows from this proposition that no genocidal intent could be found either if, in some instances, single individuals were held to have acted with the desire to see the protected group destroyed. For, in this event, the two requirements for individual genocidal intent would be lacking, namely knowledge of a genocidal campaign (on the premise that no such campaign was carried out), and a fortiori dolus eventualis.
The concept of genocidal intent developed in this article starts with an analysis of the structural particularities of the
crime of genocide whose specific intent refers not only to the consequence(s) of personal conduct, but also to those of collective
undertaking. The proposal submitted suggests understanding ‘intent to destroy a protected group as such’ as a particular kind
of specific intent: formally as intention to achieve a consequence which goes beyond the result that constitutes the actus reus. Materially, the proposed degree of intent refers to a two-fold approach which is based on a volitional (‘intent’) and/or
a cognitive (‘certain knowledge’) element. Every element may be decisive depending on the mental state of the accused: either
by virtue of the underlying purpose or by virtue of a certainty standard. While the consequences of the perpetrator's own
conduct must be virtually certain, the adequate threshold for the occurrence of the (intended) overall action's result is
practical certainty. In practice, such level(s) may be proven by exactly the same kind of circumstantial evidence current
case law has relied on.