Criminal Responsibility for Omissions in ICTY and ICTR Jurisprudence

2018 ◽  
Vol 18 (5) ◽  
pp. 749-787
Author(s):  
Ines Peterson
Keyword(s):  
Present Article ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Case Law ◽  
Former Yugoslavia ◽  
Mens Rea ◽  
International Criminal Tribunals ◽  
The Future ◽  
Intellectual Foundations ◽  
Do So

The present article analyses the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) jurisprudence on omission liability – as a perpetrator or accomplice – for crimes actively committed by others. After explaining how the Tribunals have applied the concept in relation to specific modes of liability, an in-depth assessment of the case law is undertaken with respect to relevant duties to act, the material ability to behave in accordance with such duties, the link between a failure to do so and the commission of crimes, as well as the requisite mens rea. The intellectual foundations of this form of liability remain, to a large extent, unexplored and unexplained in the jurisprudence, which sometimes even appears to treat omissions and actions as equivalent. The article addresses the potentially far-reaching implications of the Tribunals’ findings for the future and explores some of the questions yet unanswered.

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

Part 2 Attributing Criminal Responsibility, 8 Superior Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Case Law ◽  
Second World War ◽  
Criminal Court ◽  
Military Leaders ◽  
International Criminal Tribunals ◽  
Superior Responsibility ◽  
Second World

The concept of superior responsibility has been developed and critically discussed since the Second World War. It owes much of its recent development to the ad hoc tribunals that have relied on the concept to try military and non-military leaders for crimes committed by subordinates. The International Criminal Court (ICC) has drawn from this jurisprudence and developed it further, as evidenced by Article 28 of its Statute. Superior or command responsibility is the primary mechanism through which superiors can be held criminally responsible for failing to prevent or punish crimes committed by subordinates. This chapter describes the present day scope and meaning of command responsibility, which means discussing mainly International Criminal Tribunals for the case law of the Former Yugoslavia, to date the main source of case law on superior responsibility. It discusses superior responsibility through the prism of its nature, which is still ambiguous. This is problematic since it is the nature of the concept that determines its outer limits; limits that have expanded considerably over the years.

The Power of the Beaten Path

2018 ◽  
Author(s):  
William A. Schabas
Keyword(s):  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
International Criminal Tribunals ◽  
Head Of State ◽  
The Creation ◽  
Paris Peace Conference

The introductory chapter explains contemporary interest in legal developments a century ago. Discussions and decisions at the Paris Peace Conference in 1919 were the beginning of debates that continue to this day. The chapter looks in some detail at the criminality of starting a war, today known as the crime of aggression, the immunity that can be invoked by a Head of State like the Kaiser, and problems of attributing criminal responsibility to those who are not physically involved in the crime. It also addresses the creation of international criminal tribunals, which began with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

scholarly journals Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

2006 ◽  
Vol 6 (3) ◽  
pp. 313-348 ◽  
Author(s):  
Mohamed Elewa Badar
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Fundamental Concept ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
Mens Rea ◽  
The Creation ◽  
The Law

AbstractEven though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea – remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms "specific intent", "special intent", "dolus specialis", or "surplus intent"? Similarly, what are the precise meanings of the terms "deliberately", "intention", "intent", "intentionally", "wilful or wilfully", "knowledge", and "wanton" as provided for in the ICTY Statute or as employed by the Chambers within its judgments.

Treatise on International Criminal Law

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
General Structure ◽  
Case Law ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
International Criminal Tribunals ◽  
Previous Edition

This second edition of Volume I of the three-volume Treatise on International Criminal Law addresses the foundations of international criminal law and the emerging general principles. It examines the history of the discipline and the concepts behind it. Starting with the development of international criminal justice, the book proceeds as follows: it attends to the sources of international criminal law, then moves to investigate the general structure of crime in international criminal law, and addresses in detail the concept and forms of individual criminal responsibility; it then turns to the subjective requirements of criminal responsibility, and defences that exclude such responsibility. International criminal justice is a flourishing field, with the birth of new international criminal tribunals and both accountability and investigative mechanisms. Case law increases rapidly, so does the ensuing substantive scholarship. This is also true for international criminal law’s foundations and general principles, treated in this volume. Thus, the previous edition has been completely revised, updated, and rewritten in some parts. The author strived to include both relevant case law and scholarly work up to March 2021.

The Precedent of Appeals Chambers Decisions in the International Criminal Tribunals

2004 ◽  
Vol 17 (1) ◽  
pp. 67-102
Author(s):  
XAVIER TRACOL
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Former Yugoslavia ◽  
Trial Judge ◽  
International Criminal Tribunals ◽  
Individual Trial

The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.

Murder as a Crime against Humanity at the Ad Hoc Tribunals: Reconciling Differing Languages

2006 ◽  
Vol 43 ◽  
pp. 145-195
Author(s):  
Chile Eboe-Osuji
Keyword(s):  
French Text ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
English Text ◽  
Mens Rea ◽  
International Criminal Tribunals ◽  
Wide Range

SummaryThe statutes of the International Criminal Tribunals for Rwanda and for the Former Yugoslavia give these tribunals jurisdiction over murder as a crime against humanity. Yet the judges of these tribunals have often found themselves disagreeing as to the level means rea required for conviction. The controversy results from the French text that employs the term “assassinat” in the place where the English text speaks of “murder.” Assassinat is equivalent only to the premeditated kind of murder. This has led some of the judges to insist that no mens rea lower than premeditation is sufficient for conviction for murder as a crime against humanity under the statutes of the ICTR and the ICTY. It is suggested in this article that neither the requirements of international criminal law nor a contextual reading of the statutes truly favours such a strict view of murder as a crime against humanity, which effectively excludes a wide range means rea, which will, but for the use of the term “assassinat” in the French text, properly anchor a conviction for murder.

The Doctrine of Command Responsibility: Current Problems

2000 ◽  
Vol 3 ◽  
pp. 131-165 ◽  
Author(s):  
Bing Bing Jia
Keyword(s):  
International Criminal ◽  
Previous Analysis ◽  
Case Law ◽  
Customary Law ◽  
Former Yugoslavia ◽  
International Criminal Tribunals ◽  
Scholarly Attention

This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.

Contemporary International Tribunals

2017 ◽  
Author(s):  
Antonio Augusto Cançado Trindade Trindade
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Nuclear Disarmament ◽  
International Human Rights ◽  
International Criminal Tribunals ◽  
The Icj ◽  
The Common ◽  
International Human ◽  
International Tribunals

In the course of 2016, international human rights tribunals (ECtHR, IACtHR and ACtHPR) kept on making cross-references to each other’s case-law, as well as to that of other international tribunals. The same has taken place on the part of international criminal tribunals (ICC and ICTFY), at a time of special attention to the preservation of the legacy of the ad hoc tribunals (ICTFY and ICTR). One could have expected the same from the ICJ, as to the case-law of other international tribunals, in its recent decisions in the cases concerning the Obligation of Nuclear Disarmament (2016), keeping in mind the common mission (of realization of justice) of contemporary international tribunals from an essentially humanist outlook.

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