Omnipresent Threats: A Comment on the Defence of Duress in International Criminal Law

2014 ◽  
Vol 14 (3) ◽  
pp. 471-512 ◽  
Author(s):  
Jennifer Bond ◽  
Meghan Fougere
Keyword(s):  
Criminal Justice ◽  
Environmental Factors ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Law ◽  
Reasonable Belief ◽  
The Many

This article argues that in the context of international criminal law, the defence of duress must be considered where an actor is compelled to commit a crime as a result of a sufficiently serious threat – even if the form of that threat is not explicit or direct and the pending harm will not necessarily occur within a specific period of time. Drawing on the current conflict in Syria to exemplify our argument, we advocate for an approach that allows consideration of the many environmental factors that may cumulatively create an ‘omnipresent threat’ that should not be disregarded by the criminal justice system. We propose that duress should be considered where the actor held a genuine and reasonable belief that she faced a sufficiently serious threat and that commission of the offence was the only way to escape the harm. We urge that Article 31(1)(d) of the Rome Statute be interpreted accordingly.

Bridging the Gap between Criminological Theory and Penal Theory within the International Criminal Justice System

2014 ◽  
Vol 22 (3) ◽  
pp. 249-279 ◽  
Author(s):  
Athanasios Chouliaras
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
International Criminal ◽  
State Crime ◽  
Criminological Theory ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
International Crimes

The main objective of this article is to put forward a critical analysis of the emergent international criminal justice system, epitomized by the creation of the permanent International Criminal Court (icc). Such an endeavour is warranted on the assertion that international criminal justice scholarship has entered into a ‘reflective’ phase, the hallmark of which lies in the re-evaluation of the institutions of international criminal law in the light of the distinctive traits of international criminality derived from the combination of the criminological theory of state crime and the rising theory of international crime in the domain of international criminal law. In this context, the article summarizes the basic points and the epistemological premises of the criminological theory of state crime, while seeks to delimit the subject matter by alluding to the concept of core international crimes arising from the normative system of the icc. The core aim of such a combined approach is not to downplay the existing differences between the criminological concept of state crime and the penal concept of core international crimes, but to highlight common points in order to draw tentative conclusions and make some preliminary suggestions from a criminal policy perspective.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

2021 ◽  
pp. 1-29
Author(s):  
Cristina Fernández-Pacheco Estrada
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
Early Release ◽  
International Criminal Tribunals ◽  
The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

scholarly journals Special tribunal for Lebanon: legal and institutional principles of activity

Legal Ukraine ◽  
2020 ◽  
pp. 48-57
Author(s):  
Oleksandr Bazov
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
International Criminal ◽  
Practical Interest ◽  
International Criminal Law ◽  
Institutional Framework ◽  
International Criminal Justice ◽  
Institutional Foundations ◽  
International Character

The article presents the result of a study of the legal and institutional framework of the Special Tribunal for Lebanon. In particular, the role of the UN Security Council and the Government of the Lebanese Republic in the establishment of this Tribunal, the features of its legal and institutional framework as a court of international character are determined. The analysis of its international and national components is carried out. The jurisdiction of the Tribunal and the practice of its activity are studied. In the current conditions of active development of the system of international criminal justice in the field of view of the science of international law are international criminal courts of the so-called “new wave” or “third generation”, the study of legal and institutional principles of which is of great scientific and practical interest. The aim of the article is to study the legal and institutional foundations of the formation and operation of the court of international character – the Special Tribunal for Lebanon, which occupies a special place in the international criminal justice system given the specific features of its formation and operation, its international and national components. The scientific novelty of the research results is that a comprehensive study of the legal and institutional foundations of the establishment and operation of the Special Tribunal for Lebanon in Ukraine is carried out for the first time. The study of the legal and institutional foundations of the establishment and operation of this Tribunal, its jurisdictional powers and practices is important both for the further development of international criminal law and for the improvement of the international criminal justice system. Key words: international crimes, terrorism, special tribunal, legal bases, institutional bases.

International Criminal Law and International Criminal Justice

2018 ◽  
Author(s):  
Kai Ambos ◽  
Alexander Heinze
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
Criminal Law ◽  
Justice System ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Public International Law ◽  
Individual Criminal Responsibility

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

s.V Modalities, Ch.17 The Two Cultures of International Criminal Law

2020 ◽  
Author(s):  
d’Aspremont Jean
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Two Cultures ◽  
The Two Cultures

This chapter looks more globally at the methodologies used by international criminal justice, particularly its tendency towards expansionism: including more actors, more situations, and more offences under its umbrella. It does more than simply tell the story of this expansion; this chapter also systematizes it in an important way. The chapter argues that international criminal justice’s expansionism has taken two important forms. The first wave involved a sources-based expansionism, characterized by the field’s desire to expand its influence by increasing the number of legal sources—treaty, custom, general principles—that could be sources of international criminal law. But when that process was largely complete, the passage of the Rome Statute of the International Criminal Court heralded a new, hermeneutic form of expansionism—this one based on interpretation rather than on adding new sources of law. While the hermeneutic expansion is less overt and less recognized than the first wave, its consequences are still dramatic.

Eco-Struggles

2017 ◽  
Author(s):  
Matthew Gillett
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Environmental Harm ◽  
Jus Post Bellum

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.

An Attempt to Prosecute: The Muslim Brotherhood’s Communication to the International Criminal Court Relating to the Alleged Crimes in Egypt

2015 ◽  
Vol 15 (4) ◽  
pp. 733-762
Author(s):  
Hossam ElDeeb
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
Justice System ◽  
Rome Statute ◽  
International Criminal ◽  
Muslim Brotherhood ◽  
Criminal Court ◽  
Political Debates ◽  
Legal Position ◽  
The Muslim Brotherhood

The article analyses a communication submitted by the Muslim Brotherhood group (mb) to the International Criminal Court (icc) relating to alleged crimes in Egypt. After the ousting of Morsi, hundreds of Morsi supporters were killed during the dispersal of two sit-in camps. The mb lawyers argued that the ousted, Morsi, is still the legitimate president of Egypt and hence can accept the Court’s jurisdiction pursuant to Article 12(3) of the Rome Statute. It is argued that such controversial communications submitted to the Court have serious implications other than the intended purpose of communications. The article briefly reviews the situation of Egypt’s criminal justice system in relation to the alleged crimes and the legal position of the mb, then analyses the scope of Article 12(3) before it critically argues that the communication submitted to the icc was for political gain and the Court should restrain itself from entering into political debates.

scholarly journals Custom as a Source Under Article 21 of the Rome Statute

2021 ◽  
pp. 1-13
Author(s):  
Amit KUMAR
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Principle Of Legality

Abstract The adoption of the Rome Statute is a significant moment for international criminal law. Before its formulation, the criminal law was governed by the sources mentioned in their statute or Article 38 of the Statute of the International Court of Justice [ICJ Statute]. Custom is one of the important sources within the ICJ Statute. The ad hoc tribunals applied custom and even formulated certain customs. The formulation of custom is considered as against the principle of legality. To avoid such criticism, the State Parties inserted Article 21 in the Rome Statute. The provision clarifies the law which the court can apply. The parties chose not to include custom explicitly. However, the wordings of the provision indicate that the custom is still a source for the court. Apart from the wording of Article 21, other provisions of the Statute give ample scope for the application of custom.

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