On Common Plans and Excess Crimes: Fragmenting the Notion of Co-Perpetration in International Criminal Law

2018 ◽  
Vol 31 (3) ◽  
pp. 693-718 ◽  
Author(s):  
LACHEZAR YANEV
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
Critical Discussion ◽  
Criminal Court ◽  
International Criminal Law ◽  
Joint Control ◽  
International Courts ◽  
Related Idea ◽  
The Common

AbstractThe theories of joint criminal enterprise and joint control over the crime have often been cited as the paramount example of fragmentation in the jurisprudence of the International Criminal Court and the UN Tribunals. While the analyses on these two forms of co-perpetration have generally focused on contrasting the different definitional criteria that they rely on to distinguish between principals and accessories to a group crime, this article shifts the focus to one legal element that, although common for both theories, has actually caused a deeper dissonance in the topical case law of the international courts and tribunals: the ‘common plan’ requirement. It is argued that the varying interpretations of this element have given rise to three materially distinct constructions of co-perpetration responsibility in international criminal law. Several normative and practical concerns stemming from the adoption of broad definitions for the common plan element, and the related idea of ascribing responsibility for ‘excess’ crimes of the executed plan, are analyzed to emphasize the need for having a critical discussion on this element of co-perpetration.

scholarly journals Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

2019 ◽  
Vol 12 (1) ◽  
pp. 33-58 ◽  
Author(s):  
Nora Stappert
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
International Courts ◽  
Interpretive Practices ◽  
Legal Meaning

AbstractThe question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

2021 ◽  
pp. 1-29
Author(s):  
Cristina Fernández-Pacheco Estrada
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
Early Release ◽  
International Criminal Tribunals ◽  
The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

Legality, Culpability and Dogmatik: A Dialogue between the ECtHR, Comparative and International Criminal Law

2015 ◽  
Vol 15 (5) ◽  
pp. 823-860
Author(s):  
Giulio Vanacore
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Common Law ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
European Court ◽  
Constitutive Element

This article aims to analyse a peculiar interplay between the case-law of the European Court of Human Rights (ECtHR), comparative and international criminal law. The discussion focuses on legality, foreseeability of the criminal nature of conduct, knowledge of a fact’s wrongfulness and mistakes of law. Starting from foreseeability as a constitutive element of legality in the ECtHR case-law, the author examines ‘knowability’ of a fact’s wrongfulness as a component of the Continental law Dogmatik category of culpability, the issue of ignorance in common law and the general interaction between the principles of legality and culpability. With regard to the International Criminal Court, there is a problematic need to establish a personal mental link between an individual’s actions and the system criminalising such action. In this context, the issue of foreseeability as applied to modes of liability has proven to be problematic. The upshot is this paper’s appeal for a truly international criminal Dogmatik.

Assessing Victim Participation during Sentencing at the International Criminal Court

2019 ◽  
Vol 17 (2) ◽  
pp. 431-451
Author(s):  
Juan-Pablo Pérez-León-Acevedo
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Victim Participation

Abstract Although the academic literature has examined victim participation at the International Criminal Court (ICC), victim participation during the sentencing stage has remained a virtually unexplored topic. Thus, this article assesses the law and, in particular, the practice of the ICC on victim participation during sentencing in light of domestic/international criminal law and human rights law standards. Victim participation during the ICC sentencing stage, i.e. mainly written observations and sentencing hearing participation, is overall consistent with international and domestic criminal law standards, particularly with certain common law jurisdictions and with the Special Tribunal for Lebanon where the trial and sentencing stages are also divided. Additionally, victim participation during the ICC sentencing stage may arguably be justified under international human rights law, especially human rights case law. Importantly, the ICC has introduced some limitations to victim participation to safeguard the convicted person’s rights and procedural efficiency.

scholarly journals The End of an Era: Static and Dynamic Interpretation in International Courts

2014 ◽  
Vol 14 (4-5) ◽  
pp. 920-943 ◽  
Author(s):  
Henrik Palmer Olsen ◽  
Stuart Toddington
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
Social Processes ◽  
International Criminal Law ◽  
International Courts ◽  
Legal Decisions ◽  
Static Regime ◽  
Judicial Reasoning

Ninety per cent of international courts’ (ICs) legal decisions have been issued within the last two decades. This increase in case law - along with other significant changes in the operation of ICs - signals a new form of judicialised international law. This change is best described as a shift from a 'static' regime of contractual relations between sovereign states to a more 'organic' regime of 'living law'. In criminal law, this development is exemplified by the reasoning of the ICTY, the ICTR and the ICC. In examining the institutional undercurrents that accompany these changes important questions arise: through what social processes is legitimacy imputed to ICs? How do ICs handle or avoid crises in legitimacy? In the context of recent critiques of judicial reasoning in international criminal law, the article suggests that the analysis of case law from ICs must become as dynamic and agile as contemporary international law itself.

Of Fallen Demons: Reflections on the International Criminal Court's Defendant

2016 ◽  
Vol 29 (1) ◽  
pp. 223-244 ◽  
Author(s):  
STUTI KOCHHAR ◽  
MAYEUL HIERAMENTE
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Popular Opinion ◽  
International Courts ◽  
The Law

AbstractThe defendant in international trials is presumed innocent until proven guilty but is often judged by the ‘court of popular opinion’ even before the trial begins. This article provides reflections on how the image of a malevolent individual emerges with regard to those brought/to be brought before international courts. In such a situation, coming before the Court and subsequently being convicted or acquitted can mean little. It is coming before the Court that is, in itself, the end of the line. The manner in which the International Criminal Court has functioned has contributed, both advertently and inadvertently, to the maintenance of the image of the defendant as a malevolent being. Specifically, the purposes of historiography and the ever present discourse of deterrence, breed the suspicion that this ‘demonizing the defendant’ effect might be endorsed by the manner in which the Prosecutor has popularized the Court and it's functions and aims. This is a conflict that gets to the heart of international criminal law. It is the dilemma of how one must simultaneously fulfil two of the law's essential aims: to presume innocence (and thus abide by a fundamental tenet of international criminal law) and to deter, educate and pacify (and thus for the law to have a reason to exist).

Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory

2013 ◽  
Vol 13 (4) ◽  
pp. 789-828 ◽  
Author(s):  
Lachezar Yanev ◽  
Tijs Kooijmans
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Joint Control ◽  
Legal Basis ◽  
Customary International Law ◽  
Control Paradigm

The concept of co-perpetration and its proper construction continues to be a topic that causes controversy and fragmentation in the field of international criminal law. The latest proof of this is the Lubanga Trial Judgment in which the three judges disagreed on whether this mode of liability should be based on the theory of joint control over the crime. The present article examines and further develops Judge Fulford’s arguments against the adoption of this theory in cases brought before the International Criminal Court. It analyses the Rome Statute and its drafting history, as well as customary international law and domestic jurisprudence, in order to review the contention that there is no legal basis for applying the joint control paradigm in ICC proceedings. In addition to this, several recent ICC cases are examined to underscore the practical weaknesses of the control over the crime approach to co-perpetration.

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