Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse

2015 ◽  
Vol 28 (3) ◽  
pp. 623-642 ◽  
Author(s):  
MARCUS JOYCE
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Hybrid Approach ◽  
Criminal Court ◽  
International Criminal Law ◽  
Choice Test ◽  
Moral Choice ◽  
Alternative Test ◽  
Missed Opportunity

AbstractArticle 31(1)(d)1of the Rome Statute of the International Criminal Court (ICC Statute) presents an important opportunity to reconsider the defence of duress in cases of unlawful killing. While the case ofErdemovićhas done much to substantiate the existence of the defence of duress at international law it appears to have curtailed the doctrine by interpreting it with reference to a strict form of proportionality characteristic of duress as justification. On the other hand, duress as excuse requires some measure of proportionality. This article will contend that the hybrid approach of Nuremberg Military Tribunals (NMTs), defined duress and the moral choice test primarily by reference toculpa in causa, not resorting to duress, and a ‘softer’ proportionality and in doing so, provided a more flexible and workable model for duress. Article 31(1)(d) of the ICC Statute, although an interesting attempt to find the balance between duress as excuse and justification, is a missed opportunity to redefine the defence in international criminal law. An alternative test for duress, with reference to the principles that emerged from the jurisprudence of the NMTs, is required in order to find the correct balance between duress as excuse and justification.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
The Right ◽  
First Time ◽  
Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

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.

scholarly journals IMPORTANCE OF THE BEMBA CASE FOR THE INSTITUTE OF PERSONAL RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS FOR THE COMMITMENT OF CRIMES AGAINST INTERNATIONAL LAW BY THEIR SUBORDINATES

2021 ◽  
pp. 109-114
Author(s):  
B. I. Nedilko
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Personal Responsibility ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
First Case

This article is devoted to the analysis of the Jean-Pierre Bemba Gombo case of the International Criminal Court. He was a Congolese politician, as well as the founder and the head of non-governmental armed group, named “Movement for the Liberation of Congo”, which members committed number of crimes during armed conflict in Central African Republic. The importance of this case lies in the fact, that it was the first case of the International Criminal Court, where the accused was charged with crimes, committed by his subordinates, and not by the accused himself. This article reveals the main contradictions between the judgments of the Trial Chamber, which found Bemba guilty, and the Appeals Chamber, which acquitted him. The legal basics of the institute of personal responsibility of commanders and other superiors in international criminal law, which were formed in the decision of the Appeals Chamber in the Bemba case, are highlighted therein. The author addresses and analyzes the grounds for recognizing commanders and other superiors guilty for committing crimes by their subordinates. It was discovered, that Article 28 of the Rome Statute requires the commanders to take only necessary or reasonable measures to prevent or punish the crimes, committed by their subordinates, not all possible measures at the relevant time. The Trial Chamber should specify what exactly the accused had to do to prevent or punish the crimes, as well as inform the accused of it prior to the hearing. It is also necessary to take into account objective circumstances, that could prevent the commander from adequately responding to the commission of crimes by his subordinates, especially if they operated in the territory of another state. The commander's ability to take the necessary or reasonable measures to prevent or punish the crimes, committed by his subordinates, should be analyzed in relation to each individual crime he is charged with, and not in relation to all the actions of subordinates as a whole. At last, the Appeals Chamber provided an exhaustive list of criteria for determining whether the measures, taken by the commander, were sufficient.

The Perestroika of International Criminal Law: Soviet Reforms and The Promise of Legal Primacy in International Governance

2020 ◽  
Vol 23 (2) ◽  
pp. 236-270
Author(s):  
Mikkel Jarle Christensen
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Governance ◽  
Law And Politics ◽  
Legal Thinking ◽  
Domestic Law

This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.

International Criminal Responsibility Concerning ‘Control over an Organization’ and Command Responsibility Lato Sensu

2012 ◽  
Vol 12 (2) ◽  
pp. 293-300 ◽  
Author(s):  
Hiromi Satō
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law

The International Criminal Court recently presented its arguments concerning criminal responsibility arising pursuant to the theory of ‘control over an organization’. This theory is based on the notion of ‘perpetrator-by-means’ found in the Rome Statute, Article 25(3)a. The court appears to have utilized this theory to establish principal responsibility for ordering in contrast to accessorial responsibility prescribed in Article 25(3)b of the said Statute. However, it should be noted that customary international law has long established the notion of command responsibility lato sensu, recognizing the serious and primary nature of superiors’ responsibility for ordering. This article argues that there should be some conscious sequence between the discussions of ‘control over an organization’ and command responsibility lato sensu for the sake of the integrity of the discourse in international criminal law.

scholarly journals The jurisdiction of the International Criminal Court for the crime of aggression

2020 ◽  
pp. 374-378
Author(s):  
Nataliia Plakhotniuk ◽  
Maryna Irzhova
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Crime ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Prosecution ◽  
International Crimes

The article emphasizes that the crime of aggression is considered the most serious crime against peace since the Nuremberg Tribunal,which is recognized by both domestic and Western doctrine. Amendments to the Rome Statute in 2010 defined signs of aggressionas an international crime and clarified the rules for exercising the jurisdiction of the International criminal court. Optimistic expectationsfor establishing effective jurisdiction of the court over this international crime have been dashed. As a result, it is concluded thateffective international criminal prosecution of the crime of aggression is possible only if the norms of the Rome Charter that cause themost negative reaction from the leading States are reviewed.It should be noted that in respect of a state that is not a party to the Rome Statute, the Court will not exercise its jurisdiction overthe crime of aggression committed by nationals of that state or on its territory.The International criminal court should serve as a symbol of international justice, which makes just decisions related to violationsof international law. As for the procedure for implementing the proceedings of the International criminal court, it is worth noting thatsuch a procedure for executing the decision of the ISS is double. The dual procedure for the enforcement of decisions of the InternationalCriminal Court is the Foundation of the Rome Charter and represents a new system in the history of public international law inthe field of international responsibility.Thus, it is possible to see that although at first glance the long process of formulating and adopting a unified definition of thecrime of aggression at the international level to succeed, thorough the consideration allows you to comprehend the profound incompletenessof this process. Features of the crime of aggression provided for in the draft edits the Rome Statute, as well as the amendmentmechanism itself, illustrate the real lack of a mechanism for holding individuals internationally responsible for its Commission, as wellas the rather disappointing prospect of positive changes in the near future.Despite the conflicts that arise between the norms of national criminal law and the provisions of the ISS Charter, the procedureitself is an effective legal instrument aimed at maintaining international peace and security. The joint work of the International CriminalCourt and the UN Security Council makes it possible to try cases of international crimes and take effective measures to counter suchcrimes. As a key component of the International criminal justice system, the International criminal Court is one of the most significantinstitutions of international criminal law, which is constantly developing and to a certain extent affects the patterns in the developmentof mechanisms for the investigation of international crimes and the protection of human rights at the international and national levels.

14. International Criminal Law

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
Political Will ◽  
National Courts ◽  
International Criminal Tribunals

This chapter addresses the prosecution of crimes in international criminal courts according to international—not national—criminal law. International law has long recognised that certain conduct, for example piracy and slavery, are crimes against international law which may be tried by international bodies or by any State. This principle has been expanded to cover more substantive crimes. International mechanisms for criminal accountability may be established where national courts have failed or are unable to try offenders due to a lack of political will, insufficient resources, deficiencies in national law, and/or ongoing conflict. The establishment and jurisdiction of the existing international criminal tribunals, including the International Criminal Court, are considered.

The Defense of Superior Orders in International Law: Some Implications for the Codification of International Criminal Law

2009 ◽  
Vol 9 (1) ◽  
pp. 117-137
Author(s):  
Hiromi Sato
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Choice Test ◽  
Controversial Issues ◽  
Moral Choice ◽  
Nuremberg Trials ◽  
Rule Making ◽  
International Rule

AbstractThe defense of obedience to superior orders has been one of the most controversial issues in international criminal law. Although the Nuremberg Trials put forth the “Nuremberg Principle” on the superior orders defense, the principle has remained unclear on the so-called moral choice test. Basically, the situation has not been changed throughout the subsequent international rule-making process. International society has apparently rejected automatic immunity by the superior orders defense; however, a consensus has not been achieved on the question of conditional immunity, particularly on the grounds of coercion. In tackling these remaining problems, it would be advisable to examine the legal and theoretical characteristics of each component of the relevant discussion. It would also be desirable to consider some essential difficulties incidental to international rule-making. This article, in conclusion, draws attention to the possibility of certain self-constraint with regard to international law, leaving the issue of the coercion defense to the respective national legal system.

scholarly journals The jurisdiction of the International Criminal Court for the crime of aggression

2020 ◽  
pp. 374-378
Author(s):  
Nataliia Plakhotniuk ◽  
Maryna Irzhova
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Crime ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Prosecution ◽  
International Crimes

The article emphasizes that the crime of aggression is considered the most serious crime against peace since the Nuremberg Tribunal,which is recognized by both domestic and Western doctrine. Amendments to the Rome Statute in 2010 defined signs of aggressionas an international crime and clarified the rules for exercising the jurisdiction of the International criminal court. Optimistic expectationsfor establishing effective jurisdiction of the court over this international crime have been dashed. As a result, it is concluded thateffective international criminal prosecution of the crime of aggression is possible only if the norms of the Rome Charter that cause themost negative reaction from the leading States are reviewed.It should be noted that in respect of a state that is not a party to the Rome Statute, the Court will not exercise its jurisdiction overthe crime of aggression committed by nationals of that state or on its territory.The International criminal court should serve as a symbol of international justice, which makes just decisions related to violationsof international law. As for the procedure for implementing the proceedings of the International criminal court, it is worth noting thatsuch a procedure for executing the decision of the ISS is double. The dual procedure for the enforcement of decisions of the InternationalCriminal Court is the Foundation of the Rome Charter and represents a new system in the history of public international law inthe field of international responsibility.Thus, it is possible to see that although at first glance the long process of formulating and adopting a unified definition of thecrime of aggression at the international level to succeed, thorough the consideration allows you to comprehend the profound incompletenessof this process. Features of the crime of aggression provided for in the draft edits the Rome Statute, as well as the amendmentmechanism itself, illustrate the real lack of a mechanism for holding individuals internationally responsible for its Commission, as wellas the rather disappointing prospect of positive changes in the near future.Despite the conflicts that arise between the norms of national criminal law and the provisions of the ISS Charter, the procedureitself is an effective legal instrument aimed at maintaining international peace and security. The joint work of the International CriminalCourt and the UN Security Council makes it possible to try cases of international crimes and take effective measures to counter suchcrimes. As a key component of the International criminal justice system, the International criminal Court is one of the most significantinstitutions of international criminal law, which is constantly developing and to a certain extent affects the patterns in the developmentof mechanisms for the investigation of international crimes and the protection of human rights at the international and national levels.

s.I Actors, Ch.5 Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law

2020 ◽  
Author(s):  
Jain Neha
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Critical Role ◽  
Criminal Court ◽  
International Criminal Law ◽  
Highly Qualified ◽  
Criminal Enterprise ◽  
Public International Law

This chapter asks what the outsized role ‘publicists’ have played at the International Criminal Court (ICC) says about the methodological coherence of the field and, more generally, about public international law’s formal relegation of the ‘teachings of the most highly qualified publicists’ to a subsidiary status. It explores that question through the lens of the Court’s decision to reject joint criminal enterprise as a mode of liability in favour of indirect perpetration and co-perpetration. Here, the ICC’s overt reliance on German criminal law scholarship indicates that the Court has been much more willing to go beyond the formal sources of international law than the ICTY and ICTR, which adhered closely to classical public international law sources. This chapter suggests that—at least in practice—the work of publicists has been one of the most important legal sources in the development of specific aspects of the ICC’s jurisprudence. The valorization of scholarship is best explained sociologically instead of doctrinally—as reflecting the critical role publicists played in drafting the Rome Statute and continue to play as key members of international criminal law’s ‘new professional elite’.

Sign in / Sign up

Export Citation Format

Share Document