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

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 ◽  
Individual Criminal Responsibility

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.

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.

Part 1 Introduction, 2 Collective Criminality, Individual Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Individual Responsibility ◽  
International Crimes ◽  
Individual Criminal Responsibility

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

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 ◽  
Individual Criminal Responsibility

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.

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.

Challenges to Criminalizing State Responsibility for Genocide

Postgenocide ◽  
2021 ◽  
pp. 33-62
Author(s):  
Kevin Aquilina
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Individual Responsibility ◽  
State Responsibility ◽  
Criminal Courts ◽  
Judicial Authority ◽  
Corporate Criminal Liability ◽  
Individual Criminal Responsibility

This chapter shows that although often states are parties in a genocide enterprise, the centrality—and responsibility—of states for genocide does not receive attention commensurate with the severity of the problem. Indeed, genocidal states are not held criminally responsibility for genocide. Underscoring difficulties at proving state criminal responsibility for genocide, the analysis compares and contrasts individual criminal responsibility and state criminal responsible for genocide. Whereas in the former case the matter has been dealt with by domestic and international criminal courts and tribunals, in the latter case there is no international judicial authority which can try states for criminal responsibility. However, non-state corporate criminal liability, and evolution of this institute in international law, may provide some transferable lessons for state responsibility for genocide. The chapter highlights the nexus between individual responsibility and state responsibility, and the failures of international genocide law in establishing state responsibility for genocide.

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

2020 ◽  
Author(s):  
Jacobs Dov
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Structural Position ◽  
International Crimes ◽  
Trial Process ◽  
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.

scholarly journals An overview on Individual Criminal Liability for Crime of Aggression

2021 ◽  
Vol 5 (1) ◽  
pp. 433-444
Author(s):  
Asif Khan ◽  
Shaukat Hussain Bhatti ◽  
Abid Shah
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
International Criminal Law ◽  
Historical Background ◽  
Proper Definition ◽  
Definition Of ◽  
Individual Criminal Responsibility

Over the last few years, international criminal law has included an internationally recognized definition of the crime of aggression. One may sight the respective portion from part two (Jurisdiction, Admissibility and Applicable Laws) Article 8 of the respective document. The purpose of this research represents the historical background of individual criminal responsibility under international law and the concept of individual criminal accountability for the crimes falling under the ambit of international criminal law committed by persons. Whereas the idea of how an individual could be brought to justice, for one of the core crimes of ICC's statutes, i.e., crime of aggression, was recently adopted and envisaged into Rome statutes, after the Kampala conference 2010. The concept of individual criminal responsibility for the crime of aggression faced many difficulties in at-least adopting its proper definition, which was leftover for future when Rome statue was formulated. To keep pace, this concept needs further evolution. Such an evolution demands such a condition wherein while granting the characteristics of adaptability with the contextual conditions and principles of criminal law. This article explores the anatomy of the crime of aggression and highlights issues that remain to be resolved

Ch.Two General Principles

2020 ◽  
Author(s):  
Werle Gerhard ◽  
Jeßberger Florian
Keyword(s):  
General Theory ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Superior Responsibility ◽  
Individual Criminal Responsibility

This chapter focuses on the general principles of international criminal law. It first develops a general theory of crimes under international law by considering the concept of crimes under international law as well as the context of organised violence. The structure of crimes under international law is also explored. Next, the chapter studies the material and mental elements of crimes under international law. Individual criminal responsibility and superior responsibility are also discussed, as are the grounds for excluding criminal responsibility. Next, the chapter covers inchoate crimes, omissions within the context of the ICC Statute, immunity, the multiplicity of offences, and finally, the requirements for prosecution.

Scope and Limits of Psychiatric Evidence in International Criminal Law

2013 ◽  
Vol 13 (5) ◽  
pp. 1013-1035
Author(s):  
Dragana Radosavljevic
Keyword(s):  
International Criminal ◽  
Criminal Responsibility ◽  
Health Sector ◽  
War Crimes ◽  
International Criminal Law ◽  
Criminal Courts ◽  
International Crimes ◽  
Hearsay Evidence ◽  
Individual Criminal Responsibility

This article examines the role of the mental health sector evidence in international crimes prosecutions. Specifically, recent trials are examined with a view to assess the scope and limits of psychiatric evidence in relation to war crimes defences. Scrutinizing fully the origins and triggers of individual criminal responsibility, serves the interests of justice and enhances trial rights. This study also tries to illustrate the undesirable but extensive use of hearsay evidence in international criminal courts and the ways in which psychiatric evidence is used frequently to validate inconsistent testimonies and hearsay accounts of presumed victims and witnesses but not to enable defendants to form defences. The article concludes that defence trial rights would be better protected if relevant legal lacunae and ambiguities regarding the admissibility of psychiatric evidence are clarified and if the amount of such evidence required to satisfy certain defences, such as duress, is quantified with greater specificity.

Individual Criminal Responsibility in International Law

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Legal Doctrine ◽  
International Criminal Tribunals ◽  
Phases Of Development ◽  
Superior Responsibility ◽  
Individual Criminal 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.

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