The Doctrine of Command Responsibility: Current Problems

2000 ◽  
Vol 3 ◽  
pp. 131-165 ◽  
Author(s):  
Bing Bing Jia
Keyword(s):  
International Criminal ◽  
Previous Analysis ◽  
Case Law ◽  
Customary Law ◽  
Former Yugoslavia ◽  
International Criminal Tribunals ◽  
Scholarly Attention

This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.

Criminal Responsibility for Omissions in ICTY and ICTR Jurisprudence

2018 ◽  
Vol 18 (5) ◽  
pp. 749-787
Author(s):  
Ines Peterson
Keyword(s):  
Present Article ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Case Law ◽  
Former Yugoslavia ◽  
Mens Rea ◽  
International Criminal Tribunals ◽  
The Future ◽  
Intellectual Foundations ◽  
Do So

The present article analyses the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) jurisprudence on omission liability – as a perpetrator or accomplice – for crimes actively committed by others. After explaining how the Tribunals have applied the concept in relation to specific modes of liability, an in-depth assessment of the case law is undertaken with respect to relevant duties to act, the material ability to behave in accordance with such duties, the link between a failure to do so and the commission of crimes, as well as the requisite mens rea. The intellectual foundations of this form of liability remain, to a large extent, unexplored and unexplained in the jurisprudence, which sometimes even appears to treat omissions and actions as equivalent. The article addresses the potentially far-reaching implications of the Tribunals’ findings for the future and explores some of the questions yet unanswered.

The Precedent of Appeals Chambers Decisions in the International Criminal Tribunals

2004 ◽  
Vol 17 (1) ◽  
pp. 67-102
Author(s):  
XAVIER TRACOL
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Former Yugoslavia ◽  
Trial Judge ◽  
International Criminal Tribunals ◽  
Individual Trial

The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.

Contemporary International Tribunals

2017 ◽  
Author(s):  
Antonio Augusto Cançado Trindade Trindade
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Nuclear Disarmament ◽  
International Human Rights ◽  
International Criminal Tribunals ◽  
The Icj ◽  
The Common ◽  
International Human ◽  
International Tribunals

In the course of 2016, international human rights tribunals (ECtHR, IACtHR and ACtHPR) kept on making cross-references to each other’s case-law, as well as to that of other international tribunals. The same has taken place on the part of international criminal tribunals (ICC and ICTFY), at a time of special attention to the preservation of the legacy of the ad hoc tribunals (ICTFY and ICTR). One could have expected the same from the ICJ, as to the case-law of other international tribunals, in its recent decisions in the cases concerning the Obligation of Nuclear Disarmament (2016), keeping in mind the common mission (of realization of justice) of contemporary international tribunals from an essentially humanist outlook.

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

Early Release of Prisoners Decisions

2021 ◽  
pp. 263-308
Author(s):  
Theodor Meron
Keyword(s):  
International Criminal ◽  
Former Yugoslavia ◽  
The Political ◽  
Early Release ◽  
Religious Context ◽  
International Criminal Tribunals ◽  
Nation States

This chapter describes the author’s own practice, as Court President, on early release of prisoners serving sentences imposed by the ICTY, ICTR, or the Mechanism, one which followed the practice of his predecessors. Early releases or pardons of prisoners are often delicate and controversial in nation-States. In international criminal tribunals, the political, national, ethnic and religious context makes early releases even more difficult and contentious. Interested States, victims’ organizations, NGOs and media often vent their anger at some releases by harsh attacks against the Presidents that rendered them. In Rwanda, early releases of persons convicted by the ICTR or the Mechanism have not been welcome. In the former Yugoslavia, convicted persons who have been released have often been celebrated upon their return to their own local and national communities. These releases have, however, been criticized by other communities in the former Yugoslavia.

The ICTY is Dead! Long Live the ICTY!

2020 ◽  
pp. 71-82
Author(s):  
Carsten Stahn
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Institutional Culture ◽  
Former Yugoslavia ◽  
International Criminal Justice ◽  
International Criminal Tribunals ◽  
History Of ◽  
The Many

The chapter sets the International Criminal Tribunal for the former Yugoslavia (ICTY) legacies into a broader context of international criminal justice. It presents different approaches towards the many legacies of the ICTY. The chapter engages with the several phases that the Tribunal has passed, discussing their positive and negative points. It then examines the normative legacy of the ICTY, arguing that, although some gaps exist, the overall record of the ICTY is marked with several normative innovations. The chapter then visits the procedural legacy of the ICTY, in the sense of how the Tribunal made justice heard and seen. Lastly, the chapter discusses the institutional culture of the ICTY and its legacy to other international criminal tribunals. With this analysis, the chapter claims that the ICTY legacies are living beings, which will continue to be transformed throughout the history of international criminal justice.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

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