IV Individual Criminal Responsibility

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Ad Hoc ◽  
Criminal Responsibility ◽  
Case Law ◽  
International Criminal Law ◽  
Special Focus ◽  
International Crimes ◽  
Ww Ii ◽  
Important Field ◽  
The One ◽  
Individual Criminal Responsibility

This chapter starts with the universal recognition of the concept of individual criminal responsibility in ICL as perhaps the most important result of its historic precedents of Nuremberg and Tokyo. It offers a profound analysis of the ‘historic’ case law on individual criminal responsibility, namely the post WW II case law (Nuremberg, Tokyo, the one by the allied powers and Germany), but also relevant case law on other (mainly) State-sponsored criminality (especially in Latin America). It then turns to the ‘modern’ law of individual criminal responsibility and thus analyses the law and jurisprudence of the UN Ad Hoc Tribunals, of the mixed tribunals and, with a particular emphasis, of the ICC. In terms of doctrine a special focus lies on the forms of participation which enable us to hold the masterminds of the international crimes accountable, that is, joint criminal enterprise (JCE) and indirect perpetration by way of an organization (Organisationsherrschaft). In this respect, the chapter deals with what is probably the most important field of the ongoing theoretization of International Criminal Law.

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.

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 Command responsibility

2021 ◽  
Vol 38 (1) ◽  
pp. 70-85
Author(s):  
Slavica Dinić ◽  
Emil Turković
Keyword(s):  
Criminal Law ◽  
Ad Hoc ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Criminal Code ◽  
Criminal Offense ◽  
Law System ◽  
International Crimes ◽  
International Obligations ◽  
The One

As a part of the presentation in this paper, we will deal with one of a number of specific characteristics arisen while determining the criminal responsibility of perpetrators of international crimes, the one related to the institute of command responsibility, which are familiar with the statutes of both ad hoc tribunals (the Statute of the Tribunal in the Hague of 1993 and the International Criminal Tribunal for Rwanda of 1994), as well as the so - called the Rome Statute from 1998. In these statutes, it is set in such a way that, in one of its parts, it contradicts the basic criminal law institutes (the principle of individual subjective responsibility, the principle of justice). However, in accordance with the assumed international obligations, this institute was introduced to the criminal law system of Republic of Serbia on January 1st 2006, by prescribing, within Article 384 of the Criminal Code of Republic of Serbia, a real criminal offense of omission, which is also the subject of this paper.

Scope and Limits of Psychiatric Evidence in International Criminal Law

2013 ◽  
Vol 13 (5) ◽  
pp. 1013-1035
Author(s):  
Dragana Radosavljevic
Keyword(s):  
International Criminal ◽  
Criminal Responsibility ◽  
Health Sector ◽  
War Crimes ◽  
International Criminal Law ◽  
Criminal Courts ◽  
International Crimes ◽  
Hearsay Evidence ◽  
Individual Criminal Responsibility

This article examines the role of the mental health sector evidence in international crimes prosecutions. Specifically, recent trials are examined with a view to assess the scope and limits of psychiatric evidence in relation to war crimes defences. Scrutinizing fully the origins and triggers of individual criminal responsibility, serves the interests of justice and enhances trial rights. This study also tries to illustrate the undesirable but extensive use of hearsay evidence in international criminal courts and the ways in which psychiatric evidence is used frequently to validate inconsistent testimonies and hearsay accounts of presumed victims and witnesses but not to enable defendants to form defences. The article concludes that defence trial rights would be better protected if relevant legal lacunae and ambiguities regarding the admissibility of psychiatric evidence are clarified and if the amount of such evidence required to satisfy certain defences, such as duress, is quantified with greater specificity.

scholarly journals THE MAIN ROLE OF THE INTERNATIONAL TRIBUNAL IN ACCORDANCE WITH PREVENTING AND REPRESSING INTERNATIONAL CRIMES

2015 ◽  
Vol 9 (1) ◽  
pp. 1-4
Author(s):  
Barbu Denisa
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Main Role ◽  
Great Role ◽  
International Crimes ◽  
The One ◽  
The Military

In international criminal law, a great role had the Military Courts at Nuremberg and Tokyo, which on the one hand, contributed decisively in their judgments to the shaping of important institutions of international criminal responsibility of individuals as agents of the State, and on the other hand, have demonstrated the need for permanent and strong international criminal jurisdictions. 

Could International Fact-Finding Missions Possibly Render a Case Inadmissible for the ICC? Remarks on the Ongoing Attempts to Include International Criminal Law in Fact-finding

2019 ◽  
Author(s):  
Barry de Vries
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Crimes ◽  
The Past ◽  
Fact Finding ◽  
Individual Criminal Responsibility

Abstract Twenty years after the adoption of the Rome Statute questions concerning complementarity remain. There is no clear indication as to how international involvement would influence the admissibility of a case. One of the responses to human rights violations and possible international crimes that has risen to prominence in the past decades is fact-finding mandated by UN organs. At the same time these mechanisms have started to incorporate a focus on issues of international criminal law and individual criminal responsibility. As these mechanisms are starting to attempt to resemble a criminal investigation in some regards the question starts to rise as to what effect an international fact-finding mechanism can have on the admissibility of a case before the International Criminal Court. This article explains how these mechanisms need to be viewed in the context of the complementarity-regime of the Rome Statute.

Proportionality in Refugee Exclusion

2020 ◽  
Author(s):  
Elif Gökşen
Keyword(s):  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
International Criminal Law ◽  
Guidance Document ◽  
Refugee Status ◽  
High Commissioner ◽  
State Practice ◽  
Proportionality Test ◽  
Individual Criminal Responsibility

Abstract In the increased discussions about international security and terrorism, the application of the exclusion clauses in Article 1 F of the 1951 Refugee Convention has become a topical and controversial issue. The United Nations High Commissioner for Refugees (UNHCR) advises states to apply a proportionality test to weigh the gravity of the crime against the consequences of exclusion for cases concerning serious non-political crimes and war crimes. However, there is no uniform approach in state practice. Also, the concept of ‘gravity of the crime’ is not clarified in any guidance document of the UNHCR. Relying on the different applications of Article 1 F of the 1951 Convention, this article questions whether the proportionality analysis is actually necessary for determining the exclusion, and how should the gravity of the crime be interpreted in such cases. First, the present article argues that the proportionality analysis is compatible with the overriding humanitarian aims of the 1951 Convention and that this analysis should be applicable to all the crimes listed in Article 1 F. Secondly, it demonstrates that the concept of ‘gravity of the crime’ should be interpreted by referring to the relevant concepts developed in international criminal law, and by considering the extent of the person’s individual criminal responsibility. This article asserts that exclusion from refugee status causes serious consequences, which sometimes might be heavier than criminal punishment. Therefore, Article 1 F should be applied with the utmost attention and sensitivity.

V Omission, in Particular Command Responsibility

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Criminal Law ◽  
General Principle ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Direct Result ◽  
Foundational Work ◽  
Legal Concepts ◽  
Individual Criminal Responsibility ◽  
General Explanation

This chapter continues the effort of this Volume to combine both comparative legal concepts with unique features of International Criminal Law. It is thus a direct result of the foundational work in Chapter II: International Criminal Law’s focus on individual criminal responsibility leads to an expressive purpose of punishments that again requires a criminalization of remote behavior by commanders and State leaders. This criminalization is based on the centuries old debate revolving around liability for omission. The chapter thus starts with a general explanation of the concept of omission vis-á-vis action. The author answers the question of whether a general omission liability exists in International Criminal Law affirmatively, recognizing a general principle of law, albeit with strict requirements. Drawing on the results from Chapter II, the author argues in favor of a criminalization of omission based on the prevention of harm and the protection of important legal goods/interests. The basis for this criminalization/liability is the respective person’s duty to act.

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