Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes

2013 ◽  
Vol 13 (2) ◽  
pp. 473-492 ◽  
Author(s):  
Henri Decœur

As long as distinct legal regimes apply to international and non-international armed conflicts, the determination of the nature of the conflict by a court of law directly impacts on the criminal responsibility of the accused for war crimes. As this article shows, the approach traditionally used in international criminal law to characterise mixed conflicts is not sufficiently reliable for the addressees of penal norms. Low-ranking perpetrators have generally little chance of being aware of the international character of the conflict. This article argues that the principle of individual guilt requires establishing the mens rea regarding the nature of the conflict. Accordingly, a mistake of fact, or alternatively, a mistake of legal element should be admissible defences. Furthermore, it is submitted that both the method of conflict characterisation and the definition of the corresponding mental element are not compatible with the requirements of the principle of legality.

Author(s):  
van Sliedregt Elies

The reality of warfare has changed considerably over time. While most, if not all, armed conflicts were once fought between states, many are now fought within states. Particularly since the end of the Cold War the world has witnessed an outbreak of non-international armed conflicts, often of an ethnic nature. Since the laws of war are for the most part still premised on the concept of classic international armed conflict, it proved difficult to fit this law into ‘modern’ war crimes trials dealing with crimes committed during non-international armed conflicts. The criminal law process has therefore ‘updated’ the laws of war. The international criminal judge has brought the realities of modern warfare into line with the purpose of the laws of war (the prevention of unnecessary suffering and the enforcement of ‘fair play’). It is in war crimes law that international humanitarian law has been further developed. This chapter discusses the shift from war crimes law to international criminal law, the concept of state responsibility for individual liability for international crimes, and the nature and sources of international criminal law.


Author(s):  
Matthew Gillett

This chapter examines the provisions of international criminal law applicable to serious environmental harm, particularly during non-international armed conflicts ('NIAC'). After describing incidents of serious environmental harm arising in armed conflicts, the analysis surveys the provisions of international criminal law applicable to environmental harm during NIACs, including war crimes, crimes against humanity, genocide, and aggression. It then examines the basis for extending to NIACs the protection against military attacks causing excessive environmental harm (set out in Art. 8(2)(b)(iv) of the Rome Statute), which is currently only applicable in IACs. The examination of this possible amendment of the Rome Statute covers a broad range of instruments and laws forming part of international and national legal codes, all addressing grave environmental harm. Finally, the analysis turns to accountability for environmental harm as a facet of jus post bellum, emphasizing the interconnected nature of environmental harm and cycles of violence and atrocities.


Author(s):  
Elif Gökşen

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.


2016 ◽  
Vol 1 (1) ◽  
pp. 17
Author(s):  
Nurul Sasmita

The aims of this thesis is (1) to investigate andexplain the positions of corporations in conducting banking criminalacts, and (2) also to identify and explain the criminal responsibility ofbank as the perpetrator in banking criminal acts. This research isnormative, conceptual approach and the approach of legislationregarding responsibility principles of the corporation for banking criminalacts.Corporations have chances in committing a crime, especially bankingcriminal acts just by making a corporation recognized as a subject ofexistence apart from human beings, so that in practice there is a criminal offense committed by the corporation. The corporation takespart in the occurrence of a crime. In practice, the determination of acriminal offenseconducted by the corporation is known through two things: first, the works of the committee: they should be constructed as theyuse the principles of the liability of corporation’s criminal actions. Principally, stakeholders and officials or employees of a corporationhave the responsibility for its owncorporate actions; second, errors in the corporation,as long as it is in the science of criminal law, the overview of criminals is still oftenassociated with physical actions performed by the manufacturers(fysieke dader) but this can be overcome by the study of  "functionalactors" (functioneledader). We can prove that the action of committeeor employees of the corporation in the society act traffic concerned,the acts of the corporationerrors in the forms (dolus or culpa) must be regarded ascorporate faults.Towards the corporations that make banking criminal acts we canhave their responsibility with the principles of strict liability. Onthe principle of strict liability, it is known that the responsibility ison them even if they do not have the required mens rea. The substanceof this principle is that the perpetrator has been punished if theperpetrator may have provable conduct prohibited by the criminalprovision (actus reus) withoutsee the inner attitude. In this conception, the corporation is consideredhaving responsibility forphysical acts performed by management. A corporation convicted in principles isintended to develop a sense of justice in the corporation who commitsbanking criminal acts as stated in Article 46 paragraph (2), sothat if a corporation committed criminal acts, we can also have theresponsibility of the corporation. Keywords:Banking Criminal Acts, Corporation, ResponsibilityMenurut peraturan perundang-udangan, korporasi sebagai subyek hukum dapat dikenakan pidana sebagaimana manusia melakuka tindak pidana. Pada praktiknya, penentuan tindak pidana yang dilakukan oleh korporasi diketahui melalui dua hal, yaitu pertama tentang perbuatan pengurus yang harus dikonstruksikan sebagai perbuatan korporasimaka digunakanlah asas pertanggungjawaban pidana. Pada asas tersebut stakeholder maupun pengurus atau pegawai suatu korporasi, bertanggungjawab terhadap perbuatan korporasi itu sendiri. dan kedua tentang kesalahan pada korporasi, memang selama ini dalam ilmu hukum pidana gambaran tentang pelaku tindak pidana masih sering dikaitkan dengan perbuatan yang secara fisik dilakukan oleh pembuat (fysieke dader) namun hal ini dapat diatasi dengan ajaran “pelaku fungsional” (functionele dader). Kita dapat membuktikan bahwa perbuatan pengurus atau pegawai korporasi itu dalam lalu lintas bermasyarakat berlaku sebagai perbuatan korporasi yang bersangkutan maka kesalahan dalam bentuk (dolus atau culpa) mereka harus dianggap sebagai kesalahan korporasi. Terhadap korporasi yang melakukan tindak pidana perbankan dapat dimintai pertanggungjawaban pidana dengan menggunakan asas strict liability.Pada asas strict liability diketahui bahwa pembebanan tanggung jawab pidana kepada pelakunya sekalipun pelakunya tidak memiliki mens rea yang dipersyaratkan. Adapun substansi dari asas ini adalah pelaku sudah dapat dijatuhi pidana apabila pelaku telah dapat dibuktikan melakukan perbuatan yang dilarang oleh ketentuan pidana (actus reus) tanpa melihat sikap batinnya. Dalam konsepsi ini, korporasi dianggap bertanggung jawab atas perbuatan yang secara fisik dilakukan oleh pengurus (direksi dan komisaris). Dipidananya korporasi pada asas ini dimaksudkan dapat menimbulkan rasa keadilan pada korporasi yang melakukan tindak pidana perbankan, sehingga apabila korporasi melakukan tindak pidana maka korporasi juga dapat dimintai pertanggungjawaban.Kata kunci: Korporasi, Pertanggungjawaban, Tindak Pidana Perbankan


2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.


2000 ◽  
Vol 13 (2) ◽  
pp. 395-425 ◽  
Author(s):  
Heike Spieker

Non-international armed conflicts are more numerous, more brutal and entail more blood-shed today than international ones. The Statute of the International Criminal Court explicitly upholds the traditional distinction between international and non-international conflicts, and armed conflicts will have to be characterized accordingly. But the tendency to adapt the international humanitarian law (IHL) regime for non-international conflicts to the rules for international ones emerges. Article 7 on Crimes Against Humanity and Article 8(2)(c) and (e) on War Crimes amount to real progress in this respect. Yet, the regulation on war crimes in particular does not provide for comprehensive criminal responsibility of individual perpetrators in non-international conflicts.


1998 ◽  
Vol 38 (322) ◽  
pp. 29-56 ◽  
Author(s):  
Thomas Graditzky

Two prominent events that occurred midway through this century had a great impact on international criminal law. The first milestone in this area was the trials of the major war criminals held in Nuremberg and Tokyo in the wake of the Second World War. They highlighted the principle of individual criminal responsibility for certain serious violations of the rules of international law applicable in armed conflict; the terms “crimes against the peace”, “war crimes”, and “crimes against humanity” found formal recognition. The second event, following closely on the first, was the adoption of the four Geneva Conventions of 12 August 1949 for the protection of war victims. These instruments established a specific framework for the prevention and punishment of the most serious violations of the provisions they contain; the technical term “grave breach” was coined.


2012 ◽  
Vol 12 (5) ◽  
pp. 827-869 ◽  
Author(s):  
Farhad Malekian

Analysing the philosophy of criminal justice and international criminal jurisdiction is indeed very complex. At a minimum, one has to be familiar with both common law and civil law systems. Examining the Gaza Strip situation is also simultaneously a very sophisticated task. It needs, to some extent, an understanding, not only of natural and positive law, but also of many principles and cultural heritages of, at least, two ethnic groups, the Palestinians, and the Jews. It is not certainly a question of religious theories, but the potentiality of rightful co-existence. It also requires understanding why these very two old groups have been, since the creation of Israel, constantly suffering from serious armed conflicts. The Gaza crimes are some of the most recent recognized crimes committed against the population of occupied territories. The intention of this article is to re-examine the historical creation of the State of Israel, the influence of the politicians of the United Kingdom in its creation, the murder of European Jews and the killing of physical and psychological integrity of Palestinians under the authority of Israeli governments. The article deals with some of the most significant norms of international criminal law and human rights law that ought to be respected in national or international conflicts regardless of the target of attack. It deals with the concept of criminal responsibility of individuals under the law of international criminal courts.


Social Law ◽  
2019 ◽  
pp. 94-98
Author(s):  
G. Gabrelyan

It has been proved that since the beginning of Russian aggression in the east of Ukraine the problems of international humanitarian law, in particular the protection of medical personnel in the context of armed conflict, have become particularly relevant. It is determined that, through its peaceful policy, Ukraine is not ready for armed aggression. The provisions of international normative legal acts regulating the protection of medical personnel and medical facilities during armed conflicts of international and international character are examined. The basics of implementation of the provisions of international humanitarian law by national legislation and peculiarities of criminal responsibility for violations and crimes against physicians in the area of ​​armed conflict are investigated.


2013 ◽  
Vol 65 (1) ◽  
pp. 42-67
Author(s):  
Dragan Jovasevic

Crimes against international law are committed by violating the rules of international humanitarian law during wars or armed conflicts. The perpetrators of these crimes are under the jurisdiction of international criminal courts (military or civil, permanent or ad hoc). The process of the commission of crimes against international law may comprise several different phases or stadiums. Moreover, such criminal offences rarely appear as the results of only one person?s activities. On the contrary, in numerous cases of these criminal offences, accomplice appears as a form of collective participation of several persons in the commission of one or more crimes against international law. All these facts represent grounds for the specific type of criminal responsibility of the perpetrators of crimes against international law. It is a object of regulation international criminal law about whose characteristics converse this article.


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