Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.31 Grounds for excluding criminal responsibility/Motifs d’exonération de la responsabilité pénale

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Criminal Justice Systems ◽

A Charge ◽

General Provision ◽

Self Defence

This chapter comments on Article 31 of the Rome Statute of the International Criminal Court. Article 31 describes what is known in most criminal justice systems by the terms ‘defences’, ‘excuses’, and ‘justifications’ for excluding criminal responsibility. It addresses several defences: insanity, intoxication, self-defence, duress, and necessity. It is followed by two other provisions, articles 32 and 33, defining specific defences. It is not apparent why articles 32 and 33 were not consolidated into the general provision, article 31. To the extent that they refute a charge, age (article 26), immunity (article 27), statutory limitation (article 29), and lack of mens rea (article 30) also operate as defences.

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.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.25 Individual criminal responsibility/Responsabilité pénale individuelle

10.1093/law/9780198739777.003.0030 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Criminal Law ◽

Individual Criminal Responsibility

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Legal Traditions ◽

This chapter comments on Article 25 of the Rome Statute of the International Criminal Court. Article 25 distinguishes various forms of criminal participation. Like much of the Rome Statute, it was a negotiated compromise crafted by jurists from different legal traditions. Concepts and words in one system did not necessarily have the same connotations as they did in others. Judge Van den Wyngaert has described article 25 as being ‘based upon an eclectic combination of sources from several national legal traditions’, adding that ‘such multi-faceted origins comes as no surprise, considering the States Parties' obvious wish to find a compromise between different legal traditions’.

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.

The Anatomy of an International Crime: Aggression at the International Criminal Court

International Criminal Law Review ◽

10.1163/15718123-01304003 ◽

2013 ◽

Vol 13 (4) ◽

pp. 829-864 ◽

Cited By ~ 2

Author(s):

Matthew Gillett

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Humanitarian Intervention ◽

International Crime ◽

Criminal Court ◽

Trigger Mechanisms ◽

Self Defence

In 2010 in Kampala, Uganda, the States Parties to the International Criminal Court (ICC) adopted a set of amendments to the Rome Statute that define the elements and trigger mechanisms of the crime of aggression. However, significant questions remain as to what was actually agreed upon in Kampala, including with respect to the parameters of the crime itself. These questions, which include the applicability of exceptions for humanitarian intervention and anticipatory self-defence, affect not only the potential criminal responsibility of individuals charged with the crime of aggression, but also the interests of States in whether their acts are considered to amount to aggression or not. This article explores the anatomy of the crime of aggression and highlights issues that remain to be resolved.

MENTAL ELEMENTS UNDER ARTICLE 30 OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMPARATIVE ANALYSIS

International and Comparative Law Quarterly ◽

10.1017/s0020589312000152 ◽

2012 ◽

Vol 61 (2) ◽

pp. 325-359 ◽

Cited By ~ 1

Author(s):

Sarah Finnin

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

International Crime ◽

Common Law ◽

Civil Law ◽

Criminal Court ◽

Perspective Drawing ◽

General Provision

AbstractThe Rome Statute of the International Criminal Court is the first international instrument that includes a general provision on the mental element required before criminal responsibility for an international crime attaches (Article 30). This article analyses that provision from a comparative perspective, drawing on common law and civil law understandings of intent. It analyses the jurisprudence and commentary concerning Article 30 in detail, and attempts to draw some conclusions as to what aspects of the common law and civil law concepts of intent are covered by it.

Theorizing the International Criminal Court’s Model of Justice: The Victims’ Court?

Journal of Victimology and Victim Justice ◽

10.1177/2516606918825009 ◽

2019 ◽

Vol 2 (1) ◽

pp. 1-10

Author(s):

Isha Jain

Keyword(s):

Criminal Justice ◽

Rome Statute ◽

International Criminal ◽

Theoretical Models ◽

Criminal Court ◽

Value Systems ◽

Criminal Justice Systems ◽

The World ◽

Theoretical Standpoint

Theoretical models of criminal justice are important tools for identifying the value systems that underpin the various criminal justice systems of the world. Hailed as the ‘victims’ court’ for conferring wide-ranging participatory rights to victims at all stages of the criminal process, the International Criminal Court and its constitutive treaty, the Rome Statute, offer an interesting subject matter of analysis from this theoretical standpoint. The focus of this article will be on studying the ICC’s practice and procedure in relation to victim participation, in order to identify the values of criminal justice that influence these processes.

The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽

10.1017/s2398772300009107 ◽

2016 ◽

Vol 110 ◽

pp. 245-250

Author(s):

Bing Bing Jia

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

Decision Makers ◽

International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.24 Non-retroactivity ratione personae /Non-rétroactivité ratione personae

10.1093/law/9780198739777.003.0029 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Simple Manner ◽

The Subject ◽

The Law ◽

Principle Of Legality

This chapter comments on Article 24 of the Rome Statute of the International Criminal Court. Preceded by two provisions that entrench two Latin maxims described collectively as the principle of legality, article 24 completes the treatment of the subject in Part 3 of the Rome Statute. Article 24 promises the accused that if there is a change in the law applicable to a given case prior to a final judgment, ‘the law more favourable shall apply’. However, this rule giving the defendant the benefit of the ‘more favourable’ provision is not without difficulties. It is not always a simple manner to determine which rule is in fact more favourable. Moreover, there may be an important element of subjectivity, in that individuals may differ in their assessment.

Part 6 The Trial: Le Procès, Art.69 Evidence/Preuve

10.1093/law/9780198739777.003.0073 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Significant Degree ◽

Trial Chamber ◽

Criminal Court ◽

Probative Value ◽

The One ◽

Assessment Of Evidence ◽

General Provision

This chapter comments on Article 69 of the Rome Statute of the International Criminal Court. Article 69 deals with specific evidentiary issues but lacks a general provision like the one in the Nuremberg Charter. This is addressed in article 64, stating that the Trial Chamber has the power to rule on the admissibility or reliability of evidence. According to a Trial Chamber, ‘the drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited — at the outset — the ability of the Chamber to assess evidence “freely”’. Chambers enjoy ‘a significant degree of discretion in considering all types of evidence’. Another judge has said that article 69 provides for ‘the principle of free assessment of evidence. Hence, it is up to the competent Chamber to decide on the probative value of any piece of evidence introduced for the purpose of the confirmation hearing or the trial’.

Sexual Exploitation and Beyond: Using the Rome Statute of the International Criminal Court to Prosecute UN Peacekeepers for Gender-based Crimes

International Criminal Law Review ◽

10.1163/157181211x587661 ◽

2011 ◽

Vol 11 (4) ◽

pp. 803-827 ◽

Cited By ~ 7

Author(s):

Melanie O'Brien

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Sexual Exploitation ◽

Real Life ◽

Criminal Court ◽

Applicable Law ◽

Gender Based

AbstractAllegations and confirmed cases of misconduct by peacekeeping personnel have been revealed by non-governmental organisations, the press and UN investigations. The majority of misconduct has fallen under the term 'sexual exploitation and abuse'. Sexual exploitation and abuse has encompassed rape, sex with minors, trafficking, prostitution-related conduct, sexual exploitation, and other sexual abuse. This article discusses accountability in international criminal law for such conduct, first exploring the development of gender-based crime in international criminal law. The core of this article consists of an examination of the applicable law under the Rome Statute of the International Criminal Court, to determine whether or not the provisions could be used to prosecute peacekeepers for the crimes of rape, sexual slavery, sexual exploitation, prostitution-related conduct, and trafficking. Real life examples of criminal conduct by peacekeeping personnel will be given to test the applicability of the Rome Statute provisions.