The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts

2014 ◽  
Vol 78 (5) ◽  
pp. 423-441 ◽  
Author(s):  
Devrim Aydin
Keyword(s):  
Criminal Law ◽  
International Criminal Law ◽  
Genocide Convention ◽  
International Courts ◽  
Actus Reus ◽  
Material Element ◽  
Subjective Element ◽  
Mental Element ◽  
Genocidal Intent ◽  
Definition Of

Many scholars studying substantive criminal law examine the crime in an analytical way to determine the elements of crime, determining these elements as the material or objective element ( actus reus) and the mental or subjective element ( mens rea). In accordance with this, a crime consists of a physical act or omission (material element) and the psychological bond that links the act to the perpetrator (mental element). The elements of the crime of genocide are derived from the definition of Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. According to this, the crime of genocide is committing any of the acts enumerated in the Convention with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The mental element of genocide was not mentioned either during the Nuremberg trials or in the Convention. The discussion on the mental element of the crime of genocide or ‘genocidal intent’ took place within international criminal law for the first time during the trials at international courts for the Former Yugoslavia and Rwanda in order to prove the perpetrators' genocidal intent. This article discusses the definition of genocide, the mental element of the crime in substantive criminal law, the mental element of the crime of genocide and the jurisprudence of the international tribunals related to the issue.

Part 1 Introduction, 3 Parameters of Criminal Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Civil Law ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Municipal Law ◽  
Material Element ◽  
Mental Element ◽  
Superior Responsibility

While the Nuremberg and Tokyo judgments and the subsequent proceedings are important sources of law and indispensable in developing the concept of individual responsibility in international criminal law, they do not provide us with a system of criminal law and doctrine. For that, we need to turn to municipal law. National criminal law and doctrine not only serves as guidance and inspiration in developing a theory of individual responsibility in international criminal law, it also assists in understanding and describing international criminal law. This chapter begins with a brief discussion of terminology which has proved useful at the tribunals to analyze individual and superior responsibility. It then describes the mental element and material element in civil law systems.

scholarly journals Defining the National, Ethnic, Racial and Religious Groups of Genocide in the Practice of International Criminal Courts

2021 ◽  
Vol 6 ◽  
pp. 38-45
Author(s):  
Dmytro Koval
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Genocide Convention ◽  
Criminal Courts ◽  
International Courts ◽  
Contextual Element ◽  
The Stability ◽  
Definition Of

The article analyzes the approaches of international courts (the UN International Court of Justice, International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and hybrid Extraordinary Chambers in the Courts of Cambodia) to the criteria for defining genocide groups. The article emphasizes that the definition of belonging to a group is a contextual circumstance (contextual element) of the crime of genocide. In particular, the paper studies how the international courts applied positive/negative and objective/subjective identification strategies to conclude that certain groups constitute those protected by the Genocide Convention or the statutes of the international criminal courts. In addition, the article deals with the problem of the stability and mobility of the groups and the ways these characteristics help the international courts to apply the Convention.The article focuses on a search for algorithms that allow international courts to identify genocide groups. It stresses that the international criminal courts have not demonstrated consistency in their assessment of the definition of the groups. Neither have they showed the synchronized understanding of the approaches (objective/subjective, positive/negative, stable/mobile) to be used for the identification of these groups. Therefore, it is further argued that, due to the variability of approaches and strategies used by international courts to identify genocide groups, belonging to the group is a window of opportunity for a contextual reading of international criminal law.

A Strategic Choice: The State Policy Requirement in Core International Crimes

2015 ◽  
Vol 28 (4) ◽  
pp. 953-975 ◽  
Author(s):  
ATHANASIOS CHOULIARAS
Keyword(s):  
Criminal Law ◽  
State Policy ◽  
International Criminal ◽  
Criminal Policy ◽  
The State ◽  
International Criminal Law ◽  
Controversial Issues ◽  
Policy Perspective ◽  
International Crimes ◽  
Definition Of

AbstractThe article focuses on one of the most intriguing and, at the same time, controversial issues of international criminal law: whether the state policy requirement should be considered as a constitutive element in core international crimes. Adopting a criminal policy perspective, my intention is to contribute to the ongoing discussion by offering a doctrinal and criminological corroboration of the position that answers in the affirmative. Nevertheless, I am not necessarily promoting a normative choice entailing the amendment of the definition of core international crimes, but I rather call for a policy choice of focusing on cases that presume a state policy component.

scholarly journals CRIMINAL DELINQUENCY – CYBERSTALKING: CHARACTERISTICS OF OBJECT AND OBJECTIVE SIDE

2018 ◽  
Vol 2 (83) ◽  
pp. 45
Author(s):  
Uldis Ķinis
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Written Text ◽  
Legitimate Interest ◽  
International Regulations ◽  
Actus Reus ◽  
The Law ◽  
Definition Of ◽  
Objective Side ◽  
First Time

On January 2018 significant amendments to the Criminal Law and the Law On the Procedure for Application of the Criminal Law came into force in Latvia. These changes not only in the first time introduce the criminal responsibility for the emotional violence, but also determine the procedure for assessing emotional disparity, equating the effects to telepathic injuries.In the article, the author reviews a modality of crime “persecution” - cyber-persecution. Although the legislator in the annotation of the law provides that the article also shall be applicable to acts committed in cyberspace, at the same time, the author indicates some problems that may arise due to the narrow interpretation of the law by the law enforcement. The purpose of the article is to study the object (protected legitimate interest) and the objective side (actus reus) of the offense - cyber-stalking. For purposes of research, several methods have been used. The method of comparative analysis, for examination and comparison of external and international regulations. Methods of legal interpretation used to disclose the differences between the understanding of the written text of the definition of the crime and what ought to be understood in the meaning of the norm. Finally, the author presents the conclusions and proposals on the application of the norm.

scholarly journals ANALISIS YURIDIS PERTIMBANGAN HAKIM DALAM KASUS JUAL-BELI YANG DIKENAKAN PASAL 480 KUP (STUDI KASUS: PUTUSAN NOMOR 1291/PID.B/2018/PN.JKT.PST)

2019 ◽  
Vol 2 (2) ◽  
pp. 599
Author(s):  
Hendy Hendy ◽  
Firman Wijaya
Keyword(s):  
Criminal Code ◽  
Interview Data ◽  
Financial Resources ◽  
Criminal Offense ◽  
Business Partners ◽  
The Family ◽  
Actus Reus ◽  
Subjective Element ◽  
Mental Element

Dewi Sri Astuti, initially she was only trying to increase financial resources in the family, but she tripped over a case experienced by her business partners, namely Suherman and Susanti. Dewi Sri Astuti was charged guilty because she had purchased items resulting from the theft of a crime committed by her business partners in the place where they worked. Even though Dewi Sri Astuti did not know that the goods she had received from her business partners were the result of a criminal act of theft. In this case to be able to convict someone must be fulfilled two things, namely as actus reus (physical element) and.mens.rea (mental element). However, Dewi Sri Astuti was still found guilty even though it did not fulfill the subjective element of the crime. How is the juridical analysis of buying and selling actions that are subject to article 480 of the Criminal Code (case study: verdict number 1291 / Pid.B / 2018 / PN.JKT.PST)? The author used normative legal methods and used interview data as supporting data. The.results of the study revealed that Dewi Sri Astuti did not fulfill all the elements in Article.480 of the Criminal.Code, where in the element of criminal offense there are 2 (two) elements. First.element is an objective element and.the second element.is a subjective element.

5. Murder

2017 ◽  
Author(s):  
John Child ◽  
David Ormerod
Keyword(s):  
Criminal Law ◽  
Legal Reform ◽  
Self Control ◽  
Mens Rea ◽  
Loss Of Self ◽  
Life Sentence ◽  
Actus Reus ◽  
Definition Of ◽  
Partial Defences ◽  
Controversial Nature

This chapter focuses on the offence of murder within the context of criminal law, with particular emphasis on its problematic and controversial nature. It first considers the definition of murder in terms of actus reus and mens rea. It then discusses the defences to murder, including general defences, specific complete defences (e.g. cases involving doctors and the treatment of terminally ill patients), and partial defences (e.g. loss of self-control, diminished responsibility, and suicide pact). It also outlines potential options for legal reform concerning the mandatory life sentence and the mens rea of murder, and concludes by presenting a structure for applying the actus reus and mens rea for murder to problem facts. Relevant cases are highlighted throughout the chapter, and there are also boxes that highlight common pitfalls to avoid and other areas of confusion for those new to the law.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

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.

scholarly journals Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

2019 ◽  
Vol 12 (1) ◽  
pp. 33-58 ◽  
Author(s):  
Nora Stappert
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
International Courts ◽  
Interpretive Practices ◽  
Legal Meaning

AbstractThe question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

On Some Problematical Aspects of the Crime of Aggression

2007 ◽  
Vol 20 (4) ◽  
pp. 841-849 ◽  
Author(s):  
ANTONIO CASSESE
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Liability ◽  
International Criminal Law ◽  
State Responsibility ◽  
International Treaty ◽  
Legal Regimes ◽  
Degree Of Certainty ◽  
Definition Of

The essay argues that the absence of an international treaty definition of aggression in international law should not preclude the prosecution of its perpetrators. Two legal regimes of responsibility, namely the prohibition against aggression as an international wrongful act and the crime of aggression have been entangled. Once one separates the criminal liability of individuals from state responsibility, a definition of the crime of aggression can be seen. According to the author, the contours of such a new definition contain the requisite degree of certainty for judicial approaches instead of merely political approaches. Consideration is also given as to whether conspiracy to wage a war of aggression may also be regarded as a separate crime within international criminal law.

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