s.I Actors, Ch.3 Neither Here nor There: The Position of the Defence in International Criminal Tribunals

Different Types ◽

International Tribunals

This chapter argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-à-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. It identifies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law. Procedural balancing primarily involves de-emphasizing the importance of defence rights by elevating the (assumed) rights of other actors in the system. Institutional balancing relates to the structural position of the defence at international tribunals. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, this chapter suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts.

13. International criminal law

10.1093/he/9780192895684.003.0013 ◽

2021 ◽

pp. 178-190

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

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).

Contemporary International Tribunals

10.1093/oso/9780190923846.003.0009 ◽

2018 ◽

Author(s):

Antônio Augusto ◽

Cançado Trindade

Keyword(s):

Human Rights ◽

International Law ◽

Ad Hoc ◽

International Criminal ◽

International Human Rights ◽

International Human ◽

International Tribunals ◽

Cross Fertilization

More recently, jurisprudential cross-fertilization has kept on being pursued in particular by international human rights tribunals and international criminal tribunals. This is reassuring, as, despite their distinct jurisdictions, their work is complementary, in their common mission of imparting justice, in distinct domains of international law. Jurisprudential cross-fertilization fosters cohesion and the unity of law. Particularly attention is currently devoted to the preservation of the legacy of the ad hoc international criminal tribunals.

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

International Criminal Law Review ◽

10.1163/157181208x308817 ◽

2008 ◽

Vol 8 (3) ◽

pp. 509-532 ◽

Cited By ~ 2

Author(s):

Caroline Fournet

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Judicial System ◽

International Criminal Justice ◽

Public International Law ◽

International Crimes ◽

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.

Corporate Criminality and Individual Criminal Responsibility in International Law: Removing the Hurdles from the International Criminal Court’s Approach to Perpetration through Control of a Collective Entity

International Criminal Law Review ◽

10.1163/15718123-bja10011 ◽

2020 ◽

Vol 20 (6) ◽

pp. 1108-1137

Author(s):

Panagiota Kotzamani

Keyword(s):

International Law ◽

International Criminal ◽

Criminal Responsibility ◽

Current Approach ◽

International Crimes ◽

Company Directors ◽

Abstract This article discusses the International Criminal Court’s (icc) understanding of the notion of collective criminality and its application in identifying the perpetrators of international crimes committed through the activities of a corporation. It analyses the Court’s current approach to the notion of control in interpreting Art. 25(3)(a) of the icc Statute and explains why it cannot prove useful against individuals within non-state collective entities. In this direction, it suggests a more flexible theory of control and it applies it in the context of corporate criminality to identify the responsibility of company directors as perpetrators of international crimes through their corporation’s activities.

Part 1 Introduction, 2 Collective Criminality, Individual Responsibility

10.1093/acprof:oso/9780199560363.003.0002 ◽

2012 ◽

Author(s):

van Sliedregt Elies

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Individual Responsibility ◽

International Crimes ◽

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.

Individual Criminal Responsibility in International Law

10.1093/acprof:oso/9780199560363.001.0001 ◽

2012 ◽

Cited By ~ 18

Author(s):

van Sliedregt Elies

Keyword(s):

International Law ◽

International Criminal ◽

Criminal Responsibility ◽

Individual Responsibility ◽

Legal Doctrine ◽

Phases Of Development ◽

Superior 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.

Criminal Tribunals

Oxford Research Encyclopedia of International Studies ◽

10.1093/acrefore/9780190846626.013.42 ◽

2010 ◽

Cited By ~ 1

Author(s):

Aaron Fichtelberg

Keyword(s):

International Law ◽

International Politics ◽

International Criminal ◽

International Criminal Tribunal ◽

Post Cold War ◽

Military Tribunal ◽

International Tribunals ◽

Heads Of State ◽

The Impact

One the most dramatic development in international law in the 20th century was the formation of international criminal tribunals. Unlike conventional international tribunals, such as the International Court of Justice and the Permanent Court of Arbitration, international criminal tribunals—such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Military Tribunal at Nuremberg—are a controversial element of international law and international politics. Precisely because they are aimed at individuals who act under color of law, such as military officials or heads of state, they invoke a number of political challenges. Their combination of international law, human rights, criminal justice, and hotly disputed facts of great moral gravity makes them a subject of intense debate among academics, government officials, and the public at large. Much of the scholarship on international tribunals can be summed up by three periods: pre-Nuremberg, Nuremberg, and post-Cold War developments. Each period reveals shifts in the way that international criminal tribunals were studied and conceptualized in the academic world. In the future, much of the scholarship on international tribunals is expected to be influenced by the impact that the actual tribunals themselves have on international politics.

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

10.1093/law/9780198743606.003.0031 ◽

2018 ◽

Author(s):

du Plessis Max

Keyword(s):

International Law ◽

International Criminal ◽

Criminal Responsibility ◽

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.

The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes

The American Journal of International Law ◽

10.5305/amerjintelaw.105.1.0001 ◽

2011 ◽

Vol 105 (1) ◽

pp. 1-49 ◽

Cited By ~ 23

Author(s):

Máximo Langer

Keyword(s):

International Law ◽

International Criminal ◽

War Crimes ◽

Criminal Court ◽

United Nations Security Council ◽

Universal Jurisdiction ◽

Crimes Against Humanity ◽

Customary International Law ◽

International Crimes ◽

International Criminal Tribunals

Under universal jurisdiction, any state in the world may prosecute and try the core international crimes— crimes against humanity, genocide, torture, and war crimes—without any territorial, personal, or national-interest link to the crime in question whenit was committed.The jurisdictional claim is predicated on the atrocious nature of the crime and legally based on treaties or customary international law. Unlike the regime of international criminal tribunals created by the United Nations Security Council and the enforcement regime of the International Criminal Court (ICC), the regime of universal jurisdiction is completely decentralized.

Individual Criminal Responsibility

International Law ◽

10.1093/obo/9780199796953-0215 ◽

2020 ◽

Author(s):

Chantal Meloni

Keyword(s):

International Law ◽

International Criminal Court ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Liability ◽

Strict Liability ◽

International Community ◽

Criminal Court ◽

International Crimes ◽

The recognition of individual criminal responsibility under international law is relatively recent. The commission of mass atrocities during the 20th century prompted the international community to recognize that individuals can be criminally responsible directly under international law and to work for the establishment of an international criminal court having jurisdiction on international crimes committed by individuals. Thus, after World War II, the principle was established that individuals—and not only states—can be the addressee of obligations, commit crimes, and therefore bear criminal responsibility directly under international law. As affirmed by the judges sitting in Nuremberg: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” As a consequence, it is now undisputed that individuals shall be punished for the commission of crimes under international law (or “international crimes”) that seriously damage the interest of the international community as a whole, so that the goals of prevention and deterrence can be achieved. This principle is now well expressed in the Preamble of the Rome Statute of 1998, where it affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and that the International Criminal Court aims “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” The attribution of criminal responsibility to individuals does not exclude that states can be held responsible for the violations of international law that also potentially amount to international crimes; however, individual criminal responsibility under international law possesses the same legal nature as the criminal responsibility under domestic law, whereas the responsibility of states is of an international/civil nature. Given the macro-criminal dimension of the crimes at stake, which normally involve the state apparatus and are committed by an organized group or in a systematic manner, the process of “individualization” of the responsibility encounters more than one challenge. First, the issue of immunities for heads of states and other subjects under international law; second, the regulation of the modes of liability, which need to take into account the collective dimension of commission of international crimes. To overcome some of the difficulties, the rules of attribution of criminal liability to individuals had been partly reinterpreted and new modes of liability developed. Moreover, the principle of personal culpability excludes collective and strict liability. As a consequence, several grounds to exclude criminal responsibility are recognized. Finally, the enforcement of individual criminal responsibility for international crimes is the real challenge in a context of collective commission and macro-dimension of the crimes, where, moreover, the mechanisms of enforcement are not homogeneous.