Part 2 Attributing Criminal Responsibility, 5 Principals and Accessories

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Normative Model ◽

Normative Approach ◽

Crime Theory

This chapter discusses principal and accessorial liability in international criminal law. It analyzes participation models in international criminal law through the lens of the approaches discerned in the previous chapter. When discussing the distinction between principals and accessories in international criminal law, it becomes clear that the normative approach to criminal participation has gained ground in recent years. For that reason, the chapter elaborates on the distinguishing criterion in a normative model of participation, which means answering the question who is ‘most responsible’. Different theories have been developed in national criminal law to answer that question. One such theory is Roxin's theory of Tatherrschaft. This theory warrants analysis since it has been influential in international criminal law, particularly at the International Criminal Court (ICC). It is attuned to system criminality and lies at the basis of the ‘control of the crime’ theory adopted at the ICC.

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

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

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.

Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court

International Criminal Law Review ◽

10.1163/156753608x265295 ◽

2008 ◽

Vol 8 (1-2) ◽

pp. 229-272 ◽

Cited By ~ 13

Author(s):

Harmen van der Wilt

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

International Standards ◽

Actual Performance ◽

Legal Standards ◽

Principle Of Complementarity

AbstractThe Rome Statute contains a body of legal standards on elements of the offences, concepts of criminal responsibility and defences of unprecedented detail. Whereas these standards serve the International Criminal Court as normative framework, the principle of complementarity implies that domestic jurisdictions are to take the lead in the adjudication of international crimes.This article addresses the question whether domestic legislators and courts are bound to meticulously apply the international standards, or whether they are left some leeway to apply their own (criminal) law. The article starts with a survey of the actual performance of national jurisdictions. Current international law does not explicitly compel states to copy the international standards; at most one might argue that the codification of international criminal law and the principle of complementarity encourage harmonization.Capitalizing on the concept of 'open texture of law' and the methodology of casuistry, the present author argues that a certain measure of diversity in the interpretation and application of international standards is inevitable and even desirable. However, as a general rule, states have less freedom of interpretation in respect of the elements of crimes than in the application of concepts of responsibility and defences.

Virtue Ethics, Criminal Responsibility, and Dominic Ongwen

International Criminal Law Review ◽

10.1163/15718123-01903005 ◽

2019 ◽

Vol 19 (3) ◽

pp. 475-504

Author(s):

Renée Nicole Souris

Keyword(s):

Moral Development ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Moral Perception ◽

Child Soldier ◽

Unlawful Conduct

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show than an implication of this view is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court.

The Institution of the International Criminal Court

Leiden Journal of International Law ◽

10.1017/s0922156599000357 ◽

1999 ◽

Vol 12 (3) ◽

pp. 671-681

Author(s):

Gerard Strijards

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Host State ◽

Head Of State ◽

Key Aspects ◽

Domestic Law

This article discusses certain key aspects arising from the negotiations leading up to the adoption of a Statute for an International Criminal Court (ICC), to have its seat in The Hague. These aspects include individual criminal responsibility regardless of status as Head of State or constitutional organ and the transformation of international criminal law into domestic law. Also discussed are the two appendices to be added to the Statute pertaining to substantive criminal law and rules of criminal evidence and procedure to be used by the Court. The author argues that the appendix on the law of criminal procedure will be of particular importance to the Netherlands as the host state. The obligations regarding legal assistance of the host state will be dependent on this.

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

International Criminal Law Review ◽

10.1163/157181212x634162 ◽

2012 ◽

Vol 12 (2) ◽

pp. 293-300 ◽

Cited By ~ 1

Author(s):

Hiromi Satō

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

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.

Part 3 Defences, 9 Grounds for Excluding Criminal Responsibility

10.1093/acprof:oso/9780199560363.003.0009 ◽

2012 ◽

Author(s):

van Sliedregt Elies

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Comparative Perspective ◽

The Subject

Codifiers in international criminal law have not been at ease with the subject of defences. They have focused on eliminating defences rather than on defining them. This chapter discusses defences that are listed in Article 31 of the International Criminal Court Statute and all have a different nature and pedigree, which accounts for a differing format in analyzing them. It looks at the text, including the drafting history, and relevant international jurisprudence. As with the modes of liability dealt with in Chapter 6, the concepts discussed have a national pedigree and are analyzed by adding a comparative perspective. Especially in an area where international practice is scant, national criminal law has an important role to play, if only for the sake of understanding the scope and content of the various concepts.

17. International criminal law

International Law ◽

10.1093/he/9780198748830.003.0017 ◽

2019 ◽

pp. 439-467

Author(s):

Gleider Hernández

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Crimes Against Humanity ◽

Customary International Law ◽

Fundamental Shift

This chapter describes international criminal law. International criminal law represented a fundamental shift for international law. Historically, international law regarded accountability and responsibility almost purely through the lens of the State and contained neither substantive rules nor the requisite institutions to prosecute an individual. Today, there exist several institutions, most prominently the International Criminal Court (ICC), which have given shape both to the substance of the crimes themselves and to the method for their effective prosecution. Through international criminal law, the criminal responsibility and liability of individuals, even if acting in groups, are now addressed internationally. There is a category of indisputable ‘core crimes’ under customary international law: genocide, crimes against humanity, war crimes, and aggression. These are helpfully defined in an ICC document called the ‘Elements of Crimes’, which is intended to guide the Court in the interpretation and application of these crimes.