Individual Criminal Responsibility in International Law

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Legal Doctrine ◽  
International Criminal Tribunals ◽  
Phases Of Development ◽  
Superior Responsibility ◽  
Individual Criminal Responsibility

This book examines the concept of individual criminal responsibility for serious violations of international law, i.e., aggression, genocide, crimes against humanity, and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed ‘intellectual perpetrators’. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable. By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defence of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.

Ch.Two General Principles

2020 ◽  
Author(s):  
Werle Gerhard ◽  
Jeßberger Florian
Keyword(s):  
General Theory ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Superior Responsibility ◽  
Individual Criminal Responsibility

This chapter focuses on the general principles of international criminal law. It first develops a general theory of crimes under international law by considering the concept of crimes under international law as well as the context of organised violence. The structure of crimes under international law is also explored. Next, the chapter studies the material and mental elements of crimes under international law. Individual criminal responsibility and superior responsibility are also discussed, as are the grounds for excluding criminal responsibility. Next, the chapter covers inchoate crimes, omissions within the context of the ICC Statute, immunity, the multiplicity of offences, and finally, the requirements for prosecution.

Challenges to Criminalizing State Responsibility for Genocide

Postgenocide ◽  
2021 ◽  
pp. 33-62
Author(s):  
Kevin Aquilina
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Individual Responsibility ◽  
State Responsibility ◽  
Criminal Courts ◽  
Judicial Authority ◽  
Corporate Criminal Liability ◽  
Individual Criminal Responsibility

This chapter shows that although often states are parties in a genocide enterprise, the centrality—and responsibility—of states for genocide does not receive attention commensurate with the severity of the problem. Indeed, genocidal states are not held criminally responsibility for genocide. Underscoring difficulties at proving state criminal responsibility for genocide, the analysis compares and contrasts individual criminal responsibility and state criminal responsible for genocide. Whereas in the former case the matter has been dealt with by domestic and international criminal courts and tribunals, in the latter case there is no international judicial authority which can try states for criminal responsibility. However, non-state corporate criminal liability, and evolution of this institute in international law, may provide some transferable lessons for state responsibility for genocide. The chapter highlights the nexus between individual responsibility and state responsibility, and the failures of international genocide law in establishing state responsibility for genocide.

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.

When the Child Surpasses the Father – Admissible Defences in International Criminal Law

2008 ◽  
Vol 8 (3) ◽  
pp. 509-532 ◽  
Author(s):  
Caroline Fournet
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Judicial System ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Public International Law ◽  
International Crimes ◽  
Individual Criminal Responsibility

AbstractDue to the heinous nature of international crimes, admissible defences in the context of international criminal justice understandably constitute an issue surrounded with controversy. Yet, while International Criminal Law precludes the use of a series of defences, it also admits that certain grounds may exclude individual criminal responsibility or mitigate punishment even in the case of the most serious international crimes. The present study thus proposes to analyse the permissibility of these defences and the availability of such grounds for excluding responsibility by drawing a comparison between Public International Law and International Criminal Law and by highlighting the differences and discrepancies between the two systems. Ultimately, this analysis aims at demonstrating that International Criminal Law, one of Public International Law's children, has now surpassed its parent to become a more sophisticated and a fairer legal and judicial system, for both the defendants and the victims.

scholarly journals An overview on Individual Criminal Liability for Crime of Aggression

2021 ◽  
Vol 5 (1) ◽  
pp. 433-444
Author(s):  
Asif Khan ◽  
Shaukat Hussain Bhatti ◽  
Abid Shah
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
International Criminal Law ◽  
Historical Background ◽  
Proper Definition ◽  
Definition Of ◽  
Individual Criminal Responsibility

Over the last few years, international criminal law has included an internationally recognized definition of the crime of aggression. One may sight the respective portion from part two (Jurisdiction, Admissibility and Applicable Laws) Article 8 of the respective document. The purpose of this research represents the historical background of individual criminal responsibility under international law and the concept of individual criminal accountability for the crimes falling under the ambit of international criminal law committed by persons. Whereas the idea of how an individual could be brought to justice, for one of the core crimes of ICC's statutes, i.e., crime of aggression, was recently adopted and envisaged into Rome statutes, after the Kampala conference 2010. The concept of individual criminal responsibility for the crime of aggression faced many difficulties in at-least adopting its proper definition, which was leftover for future when Rome statue was formulated. To keep pace, this concept needs further evolution. Such an evolution demands such a condition wherein while granting the characteristics of adaptability with the contextual conditions and principles of criminal law. This article explores the anatomy of the crime of aggression and highlights issues that remain to be resolved

scholarly journals The Interrelation between Sovereign Immunities and Individual Criminal Responsibility in International Criminal Law

2020 ◽  
Vol 1 (16) ◽  
pp. 42-48
Author(s):  
George Chakhvadze
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Theory And Practice ◽  
Universal Jurisdiction ◽  
International Criminal Law ◽  
Legal Doctrine ◽  
National Courts ◽  
Judicial Practice ◽  
Individual Criminal Responsibility

The paper is an opinion article which analyses the essence of the principle of individual criminal responsibility in international criminal law and its key elements. The main focus of this paper is to analyze key moments of the development of the principle of individual criminal responsibility in relation to sovereign immunities. It has been shown that the development of legal doctrine and especially judicial practice greatly contributed to the balance between state sovereignty or state interests and the right of individual criminal accountability. The abolition of sovereign immunities before international courts and tribunals is the salient example of this development. Furthermore, the paper argues that when considering the effect of the principle of individual criminal responsibility and its relation to sovereign immunities, we should make conceptual distinction between personal and functional immunities. With this regard, the analysis of judicial practice clearly indicates that while personal immunity retains their force even before national courts acting on universal jurisdiction, the effect of functional immunities are somewhat restricted: functional immunities lose their power before national courts acting on universal jurisdiction. At the same time, states can abstain from using this right. Thus, the authors argue that despite recent advancements in theory and practice, the application of universal jurisdiction over international crimes still remains one of the main challenges. Šajā rakstā ir analizēta individuālās kriminālatbildības principa būtība starptautiskajās krimināltiesībās un tā galvenie elementi. Galvenā uzmanība ir pievērsta individuālās kriminālatbildības principa attīstības galvenajiem momentiem saistībā ar valsts imunitāti. Juridiskās doktrīnas un, it īpaši, tiesu prakses attīstība lielā mērā ir sekmējušas līdzsvaru starp valsts suverenitāti vai valsts interesēm un individuālās kriminālatbildības tiesībām. Turklāt rakstā tiek apgalvots, ka, apsverot individuālās kriminālatbildības principa ietekmi un tā saistību ar valsts imunitati, mums būtu konceptuāli jānošķir personiskā un funkcionālā imunitāte. Šajā sakarā tiesu prakses analīze skaidri norāda, ka, kaut arī personiskā imunitāte saglabā spēku pat valstu tiesās, kuras rīkojas saskaņā ar vispārējo jurisdikciju, funkcionālās imunitātes ietekme ir nedaudz ierobežota: funkcionālā imunitāte zaudē spēku nacionālajās tiesās, kas darbojas vispārējā jurisdikcijā. Tajā pašā laikā valstis faktiski var atturēties no šo tiesību izmantošanas. Noslēgumā autori apgalvo, ka, neskatoties uz jaunākajiem sasniegumiem teorijā un praksē, universālās jurisdikcijas piemērošana starptautiskajiem noziegumiem joprojām ir viens no galvenajiem izaicinājumiem.

Part 1 Introduction, 2 Collective Criminality, Individual Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Individual Responsibility ◽  
International Crimes ◽  
Individual Criminal Responsibility

This chapter begins with a discussion of the concept of individual criminal responsibility covering developments in municipal criminal law and international criminal responsibility. It then discusses system criminality, Colonel Murray C. Bernays' collective criminality theory, and subsequent proceedings. The concept of individual criminal responsibility in international law is modelled on criminal responsibility in national law. While it is premised on the principle of individual fault it has gained collective traits enabling liability for the acts and omissions of others. In that, it follows trends and developments in national criminal law. Liability for international crimes does, however, have specific features.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 27 Restrictions on Justifications Related to Due Obedience, Superior Responsibility, and Official Status

2018 ◽  
Author(s):  
du Plessis Max
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Historical Background ◽  
International Crimes ◽  
Functional Immunity ◽  
The Right ◽  
Superior Responsibility ◽  
Official Status

Principle 27 deals with restrictions on justifications related to the doctrines of due obedience, superior responsibility, and official status. The defence of due obedience (or superior orders) is premised on the notion that orders must be obeyed and that subordinates often have little or no discretion to refuse to abide by orders of their superiors. The doctrine of command responsibility (or superior criminal responsibility), a creation of international criminal law, states that superiors are criminally liable if they fail to prevent or punish the crimes committed by their subordinates. Under international law in respect to international crimes, immunities are divided into functional immunity (immunity ratione materiae) and personal immunity (immunity ratione personae). This chapter first provides a contextual and historical background on Principle 27 before discussing its theoretical framework and how the doctrines of due obedience, superior responsibility, and official status have been applied in practice.

International Criminal Law and International Criminal Justice

2018 ◽  
Author(s):  
Kai Ambos ◽  
Alexander Heinze
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
Criminal Law ◽  
Justice System ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Public International Law ◽  
Individual Criminal Responsibility

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

13. International criminal law

2021 ◽  
pp. 178-190
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Humanitarian Law ◽  
International Crimes ◽  
International Criminal Tribunals

This chapter examines the fundamental concepts and notions of international criminal law, which is linked to other key areas of international law, particularly human rights, international humanitarian law, immunities, and jurisdiction. In particular, there is a focus on the concept of individual criminal responsibility under international law. The four core crimes are considered; namely, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and the crime of aggression. Moreover, attention is paid to two unique forms of participation in international crimes, namely, command responsibility and joint criminal enterprise. Finally, the chapter addresses enforcement of international criminal law, particularly through international criminal tribunals, with an emphasis on the International Criminal Court (ICC).

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