The Problematic Jurisprudence on Instigation under the Statute of the ICTR: The Consistencies, Inconsistencies and Misgivings of the Trial and Appeal Chambers of the ICTR

2013 ◽  
Vol 13 (2) ◽  
pp. 429-472
Author(s):  
Avitus Agbor Agbor
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
International Crimes ◽  
International Instruments

As affirmed by international instruments, instigation is a recognised mode of participation in international crimes. The UN Convention on the Prevention and Punishment of the Crime of Genocide made punishable the inchoate crime of direct and public incitement to commit genocide. The Statute of the International Criminal Tribunal for Rwanda (ICTR) imported this inchoate crime. Furthermore, it included instigation as a mode of participation under Article 6(1) (which would lead to the imposition of criminal responsibility for the crimes). This double appearance of instigation under the Statute of the ICTR has been problematic to both the Trial and Appeal Chambers of the ICTR. Their jurisprudence on instigation is not just flawed, but also inconsistent and does not contribute to the evolution of instigation as a mode of participation in international criminal law.

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.

III Imputation and General Structure of Crime in International Criminal Law

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
General Structure ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
International Crimes ◽  
Criminal Justice Systems ◽  
General Rules ◽  
Special Part

This chapter explains the general part (GP) and special part (SP) of the criminal law, which encompasses the general rules of attribution or imputation and the relevant international crimes. It applies these concepts to International Criminal Law, especially adjusting the rules of imputation and individual responsibility to the peculiar features of the commission of crimes in a macrocriminal, collective contextIt also recounts how international criminal law had been applied with only a rudimentary system for the imputation of criminal responsibility, largely undertheorized as compared to national criminal justice systems. In fact, the chapter shows how little room was given to criminal law or even doctrinal considerations during the negotiations on ICL instruments, especially the Rome Statute of the ICC. Thus, the ICL-making process appears as largely unprincipled, policy driven, and pragmatic. It is argued however, that applied ICL is ultimately criminal law and thus must be guided by its liberal principles, especially legality, culpability and fairness.

scholarly journals A Prosecution too far? Reflections on the Accountability of Heads of State under International Criminal Law

2010 ◽  
Vol 41 (2) ◽  
pp. 179
Author(s):  
Steven Freeland
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Head Of State ◽  
Key Issues ◽  
Heads Of State

The recent issue by the International Criminal Court (ICC) of an arrest warrant against Omar Al Bashir, the President of Sudan, for alleged war crimes and crimes against humanity, represents the first time that the ICC has acted in such a way against an incumbent Head of State. It has renewed the debate about the potential international criminal responsibility of Heads of State and has led to strong opinions both for and against such actions. Yet, the prosecution of Heads of State is by no means a new phenomenon, and its continued use represents an important element in the internationalisation of justice that has gained renewed emphasis over the past two decades. This article offers some thoughts and reflections on several key issues associated with this debate, focusing particularly on the political, legal and historical dimensions that have combined to allow for the prosecution under international criminal law of any person, irrespective of their official capacity. It also examines the important role in this regard for the ICC, the world's first permanent international criminal tribunal, as well as the increasing range of prosecutions now taking place within national jurisdictions, as the period of impunity in relation to the commission of international crimes that had existed for several decades up to the 1990s has come to an end. 

The Legal Personality of Individuals in International Criminal Law

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Subsequent Development ◽  
Criminal Court ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Legal Personality ◽  
International Crimes ◽  
International Legal Personality

No one seriously disputes that the individual is a subject of international criminal law. But it is much less certain whether international crimes a priori entail individual responsibility, which would be in line with the ‘individualistic’ conception of international legal personality, or whether the responsibility arises a posteriori consistent with the Kelsenian approach. Following a brief account of some historical antecedents, Chapter6 provides a detailed examination of the pivotal post-Second World War trials and the subsequent development of individual responsibility for international crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Moreover, the chapter shows that the common practice of categorizing criminal courts as either international, internationalized, or domestic according to the ‘involvement of the international community’ ultimately rests on the orthodox ‘States-only’ conception of international legal personality.

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. 

13. International criminal law

2021 ◽  
pp. 178-190
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
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).

scholarly journals Complicity and the Doctrine of “Command Liability” for Committing War Crimes

wisdom ◽  
2021 ◽  
Vol 17 (1) ◽  
pp. 170-182
Author(s):  
Hayk GRIGORYAN
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
International Criminal Law ◽  
Criminal Enterprise ◽  
International Crimes ◽  
Opposing Party

The article analyzes the mechanisms of bringing the servicemen of the opposing party of the armed conflict to criminal responsibility through the doctrines of “joint criminal enterprise” and “command responsibility”, which are dealt with International criminal law considering that the acts committed by this category of persons are usually subject to investigation by international bodies of criminal justice on the basis of definitions developed by international practice. The analysis carried out by the author enables to propose scientifically substantiated recommendations on the qualifications of acts committed by servicemen of the opposing party of the armed conflict that constitutes corpus delicti of various war and international crimes.

Victims and Perpetrators of International Crimes: The Problem of the ‘Legal Person’

2011 ◽  
Vol 2 (2) ◽  
pp. 325-351
Author(s):  
Kirsten Campbell
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Legal Person ◽  
Legal Regime ◽  
Collective Rights ◽  
International Crimes ◽  
Legal Subjectivity

Protecting victims and punishing perpetrators are now seen as integral elements of the implementation and enforcement of humanitarian norms. However, how international law constructs the victims and perpetrators of international crimes as entities with rights and duties remains insufficiently examined. This paper explores the different models of victims and perpetrators as legal persons in international criminal law. It argues that the legal person takes two forms: the victim of human rights and the perpetrator of criminal responsibility. While the legal regime presents these as autonomous and singular individuals, it also constitutes them as members of groups that criminal norms seek to protect or punish. Contemporary international criminal law resolves this tension between individual and collective rights and responsibilities by reconstituting legal subjectivity through an intersubjective conception of the universal community of humans. Ultimately, this ‘legal person’ relies on the idea of ‘humanity’, the collectivity of all humans, to hide this problematic conceptual basis of the rights and duties of victims and perpetrators in ICL.

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.

scholarly journals The Attribution of Responsibility and Modes of Liability in International Criminal Law

2016 ◽  
Vol 29 (3) ◽  
pp. 879-895 ◽  
Author(s):  
MILES JACKSON
Keyword(s):  
Moral Responsibility ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Criminal Sentencing ◽  
Attribution Of Responsibility ◽  
International Crimes ◽  
Moral Agents ◽  
Unitary Model

AbstractIn 2012, James Stewart published an article in this journal. The piece – ‘The End of “Modes of Liability” for International Crimes’ – argued for the abolition of accomplice liability in international criminal law and the adoption of a unitary model of participation in crime. This article argues that Stewart's proposal is flawed. As a matter of moral responsibility, the distinction between principals and accomplices follows from the recognition of individuals as moral agents. Turning to ordinary criminal responsibility, neither practical benefits nor expressive benefits nor the mitigating effects of the distinctive institution of criminal sentencing justifies the abolition of the distinction between principals and accomplices. Moreover, despite the collective nature of many international crimes, international criminal law ought to strive to accurately differentiate, in the attribution of responsibility, among participants. Only a differentiated model of participation can accurately and defensibly capture the different ways that individuals contribute to wrongdoing.

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