Part 2 Attributing Criminal Responsibility, 8 Superior Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Case Law ◽  
Second World War ◽  
Criminal Court ◽  
Military Leaders ◽  
International Criminal Tribunals ◽  
Superior Responsibility ◽  
Second World

The concept of superior responsibility has been developed and critically discussed since the Second World War. It owes much of its recent development to the ad hoc tribunals that have relied on the concept to try military and non-military leaders for crimes committed by subordinates. The International Criminal Court (ICC) has drawn from this jurisprudence and developed it further, as evidenced by Article 28 of its Statute. Superior or command responsibility is the primary mechanism through which superiors can be held criminally responsible for failing to prevent or punish crimes committed by subordinates. This chapter describes the present day scope and meaning of command responsibility, which means discussing mainly International Criminal Tribunals for the case law of the Former Yugoslavia, to date the main source of case law on superior responsibility. It discusses superior responsibility through the prism of its nature, which is still ambiguous. This is problematic since it is the nature of the concept that determines its outer limits; limits that have expanded considerably over the years.

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.

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.

National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals

2010 ◽  
Vol 10 (2) ◽  
pp. 209-241 ◽  
Author(s):  
Harmen van der Wilt
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Customary Law ◽  
International Criminal Law ◽  
Criminal Proceedings ◽  
National Legislation ◽  
Territorial State ◽  
International Criminal Tribunals

AbstractThis article explores to what extent the ad hoc tribunals have made use of the national law of the state where the crimes have allegedly been committed in their quest for elements of crimes, concepts of criminal responsibility, grounds for excluding criminal responsibility and guidelines for sentencing. At first sight, one would expect the legislation of the territorial state to feature only as an indication of 'general principles of law' or 'international customary law'. However, the investigation of case law reveals that the law of the territorial state holds a far more prominent place. In search for rationales, the author suggests that, initially, national legislation has been used to plug the legal gaps in international criminal law. However, more recently the ad hoc tribunals have canvassed the national legislation of the territorial state, in order to find out whether this state would qualify to take over criminal proceedings against mid-level perpetrators. The author suggests that the International Criminal Court might follow suit, in order to give shape to its policy of 'positive complementarity'.

The Role of Victims in the International Criminal Tribunals of the Second World War

2012 ◽  
Vol 12 (2) ◽  
pp. 245-270 ◽  
Author(s):  
Luke Moffett
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Second World War ◽  
Criminal Court ◽  
Historical Research ◽  
International Criminal Justice ◽  
World War ◽  
International Criminal Tribunals ◽  
Second World

This article, drawing from historical research of the practice and judgements of the Nuremberg and Tokyo tribunals, analyses the role of victims within the founding international criminal tribunals of the Second World War. While some commentators have decried the absence of victims at Nuremberg and Tokyo, numerous victim-witnesses testified before these tribunals. However, the outcome of these tribunals has been disappointing to victims who still seek justice over sixty-five years later. This article considers the implications of the Nuremberg and Tokyo tribunals not providing justice to victims and how this has impacted on their legacy. Although these tribunals are neglected in contemporary discussions of victim provisions in modern international criminal justice mechanisms, they can still provide some important lessons for modern international criminal justice mechanisms, such as the International Criminal Court, to learn from.

The Settlement of Disputes Concerning States Arising From the Application of the Statute of the International Criminal Court: Balancing Sovereignty and the Need for an Effective and Independent ICC

2007 ◽  
Vol 7 (1) ◽  
pp. 1-43
Author(s):  
Juan Carlos Ochoa S.
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
Settlement Of Disputes ◽  
The Relationship

AbstractThe tension between State sovereignty and the need of international criminal tribunals to have sufficient powers for functioning effectively and independently permeates the provisions on the settlement of disputes contained within the ICC Statute. In contrast to the Statutes and the case-law of the ad hoc international criminal tribunals, the ICC Statute gives considerable weight to States Party's sovereignty. In particular, the power of the ICC to settle any dispute concerning its judicial functions under Article 119, paragraph 1, of its Statute is weakened in the area of States Party's cooperation where the provisions of Part 9 of the Statute of that court, in addition to grant those States several possibilities for denying requests for cooperation, remain to a large extent ambiguous as to whether the ICC can scrutinise the grounds for such denials. Yet, it is submitted that the ICC Statute as a whole provides the ICC with sufficient bases to assert such a power. This contribution also casts some light on the relationship between the ICC and States non-party to its Statute from the perspective of the rules on dispute settlement laid down in that international instrument and general international law.

International legal immunities and privileges of the Рrosecutor amicus curiae

2020 ◽  
Vol 22 (3) ◽  
pp. 55-63
Author(s):  
EKATERINA A. KOPYLOVA ◽  
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Legal Regulation ◽  
Criminal Court ◽  
International Treaties ◽  
Amicus Curiae ◽  
Criminal Courts ◽  
Criminal Proceedings ◽  
International Criminal Tribunals ◽  
Foreign Science

The article considers the international legal regime of immunities and privileges of amicus curiae prosecutors of international criminal courts which are intended to ensure independent and unhindered performance of their functions in prosecuting crimes against the administration of justice. Due to the lack of doctrinal research in this field, whether in the domestic or foreign science of international law, the study is characterized by scientific novelty. Its empirical basis is constituted of the provisions of international treaties governing the immunities and privileges of staff of the ad hoc international criminal tribunals and the International Criminal Court. It is noted that today the state of international legal regulation of immunities and privileges of amicus curiae prosecutors is not quite satisfactory as it contains significant gaps. Two possible approaches to determining the scope of the immunities and privileges of amicus curiae prosecutors are identified: the first based on their status and the second – on the functions they perform. Their critical analysis leads to the conclusion that the functional approach is more in line with the principle of equality of arms in international criminal proceedings. As a result of its application, the scope of the immunities and privileges of amicus curiae prosecutors coincides with the scope of the immunities and privileges granted to staff of the Offices of Prosecutors at the international criminal tribunals.

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.

Part IV The ICC and its Applicable Law, 20 Perpetration and Participation in Article 25(3)

2015 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Responsibility ◽  
Case Law ◽  
Second World War ◽  
World War ◽  
Applicable Law ◽  
History Of ◽  
Second World

This chapter provides an overview of the theorization of modes of liability in the context of contemporary ICC jurisprudence and scholarship. It examines the structure of Article 25, its doctrinal specificities, and its possible interpretation in light of ICC jurisprudence from the Lubanga, Katanga, and Bemba cases. It places particular emphasis on the relevance of the distinction between principal and accessorial liability and the question of whether the differentiated approach reflected in Article 25 encompasses a hierarchization of modes of liability. To give Article 25 more context and to place it in a history of liability theories attuned to system criminality, the chapter takes into account post-Second World War case-law and Tribunal law on criminal responsibility.

The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court

2000 ◽  
Vol 13 (4) ◽  
pp. 949-984 ◽  
Author(s):  
Stuart Beresford ◽  
Hafida Lahiouel
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Legal Assistance ◽  
Human Rights Law ◽  
International Criminal Tribunals ◽  
International Obligations ◽  
The Right

While the Statute of the International Criminal Court guarantees to suspects and accused the right to be defended in person or through legal assistance, it contains little guidance as to the extent to which this most fundamental right will be provided. In order to ascertain how broadly it should be applied, the authors examine the application of the right by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The authors note that the defence-orientated approach taken by the ad hoc Tribunals to the right to be defended in person or through legal assistance not only conforms with international obligations, but also in many respects goes beyond that required by international human rights law. It is, therefore, crucial that the ICC listens to the experience of the ad hoc Tribunals and adopts similar, if not identical, rules and regulations relating to the qualifications, conduct and assignment of counsel.

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