Grounds Excluding Criminal Responsibility in International Criminal Law

2013 ◽  
pp. 253-277
Author(s):  
Iryna Marchuk
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law

V Omission, in Particular Command Responsibility

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Criminal Law ◽  
General Principle ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Direct Result ◽  
Foundational Work ◽  
Legal Concepts ◽  
Individual Criminal Responsibility ◽  
General Explanation

This chapter continues the effort of this Volume to combine both comparative legal concepts with unique features of International Criminal Law. It is thus a direct result of the foundational work in Chapter II: International Criminal Law’s focus on individual criminal responsibility leads to an expressive purpose of punishments that again requires a criminalization of remote behavior by commanders and State leaders. This criminalization is based on the centuries old debate revolving around liability for omission. The chapter thus starts with a general explanation of the concept of omission vis-á-vis action. The author answers the question of whether a general omission liability exists in International Criminal Law affirmatively, recognizing a general principle of law, albeit with strict requirements. Drawing on the results from Chapter II, the author argues in favor of a criminalization of omission based on the prevention of harm and the protection of important legal goods/interests. The basis for this criminalization/liability is the respective person’s duty to act.

Defences in International Criminal LawExceptions in International Law?

2020 ◽  
pp. 347-362
Author(s):  
Kai Ambos
Keyword(s):  
Criminal Law ◽  
Main Part ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Criminal Prosecution ◽  
Meta Level ◽  
Secondary Rule ◽  
Partial Defences ◽  
Individual Criminal Responsibility

This chapter analyses the concept of defences in international criminal law. It starts off with some general conceptual remarks defining defences, on a meta level, as exceptions to the (secondary) rule expressed by the respective offence; as such, they do not invalidate this rule—the prohibition sub poena by the offence—but entail its non-application. In the main part, the chapter proposes a systematization along the lines of a substantive/procedural distinction (substantive reasons to exclude individual criminal responsibility versus procedural obstacles/bars to criminal prosecution) and further distinguishing between full and partial defences, justifications and excuses, failure of proof defences, and alibi. On the basis of this classification, a hierarchy of defences is suggested.

The Al Mahdi CaseFrom Punishing Perpetrators to Repairing Cultural Heritage Harm

2020 ◽  
pp. 133-156
Author(s):  
Karolina Wierczyńska ◽  
Andrzej Jakubowski
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Cultural Sites ◽  
Historical Monuments ◽  
Evolving System ◽  
Individual Criminal Responsibility

This chapter examines the ongoing process of consolidating international criminal law regimes for counteracting cultural heritage crimes, with particular focus on reparations for cultural harm. It begins with a wider panorama of international criminal law and jurisprudence in relation to cultural heritage crimes. This background outlines the limited provisions of the Rome Statute and offers some critical observations in relation to the evolving system of individual criminal responsibility for cultural heritage crimes. Second, it scrutinizes the approach taken by the International Criminal Court (ICC) in convicting Al Mahdi for the crime of intentionally directing attacks against buildings dedicated to religion and/or historical monuments. Third, this chapter considers the issue of remedies and reparations for cultural harm suffered in light of the relevant provisions of the Rome State and the practice of international human rights bodies. Next, it analyzes the approach taken by the ICC in Al Mahdi regarding the methodology of determining reparations for the international destruction of cultural heritage. This chapter also analyzes the possible reconsideration of the crime of deliberate attacks against protected cultural sites going beyond the notion and scope of war crime.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law ◽  
Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

Part 1 Introduction, 3 Parameters of Criminal Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Civil Law ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Municipal Law ◽  
Material Element ◽  
Mental Element ◽  
Superior Responsibility

While the Nuremberg and Tokyo judgments and the subsequent proceedings are important sources of law and indispensable in developing the concept of individual responsibility in international criminal law, they do not provide us with a system of criminal law and doctrine. For that, we need to turn to municipal law. National criminal law and doctrine not only serves as guidance and inspiration in developing a theory of individual responsibility in international criminal law, it also assists in understanding and describing international criminal law. This chapter begins with a brief discussion of terminology which has proved useful at the tribunals to analyze individual and superior responsibility. It then describes the mental element and material element in civil law systems.

Part 1 Introduction, 1 Criminal Responsibility in International Law

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
The Cold War ◽  
Modern Warfare

The reality of warfare has changed considerably over time. While most, if not all, armed conflicts were once fought between states, many are now fought within states. Particularly since the end of the Cold War the world has witnessed an outbreak of non-international armed conflicts, often of an ethnic nature. Since the laws of war are for the most part still premised on the concept of classic international armed conflict, it proved difficult to fit this law into ‘modern’ war crimes trials dealing with crimes committed during non-international armed conflicts. The criminal law process has therefore ‘updated’ the laws of war. The international criminal judge has brought the realities of modern warfare into line with the purpose of the laws of war (the prevention of unnecessary suffering and the enforcement of ‘fair play’). It is in war crimes law that international humanitarian law has been further developed. This chapter discusses the shift from war crimes law to international criminal law, the concept of state responsibility for individual liability for international crimes, and the nature and sources of international criminal law.

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