scholarly journals The Apple Does Not Fall Far from the Tree: Self-Defence in the Context of State-Sponsored Terrorism

2018 ◽  
Vol 6 (1) ◽  
pp. 49
Author(s):  
Jackson Nyamuya Maogoto
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Use Of Force ◽  
International Criminal Law ◽  
General Assembly ◽  
Armed Attack ◽  
Customary International Law ◽  
Traditional Understanding ◽  
Self Defence

The Article will examine the parameters of state-sponsored terrorism through an evaluation of the tenets of state responsibility. Under customary international law, States are not perpetrators of terrorism because terrorism is a penal offence and states are not subjects of international criminal law. Nonetheless, General Assembly resolutions repeatedly condemn States that undertake and/or support acts of terrorism. It reflects the absolute prohibition on the use of force except in reaction to a conventional armed attack and the seeming metamorphosis and fluidity of the traditional understanding.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law ◽  
Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

Unravelling the Confusion Concerning Successor Superior Responsibility in the ICTY Jurisprudence

2010 ◽  
Vol 23 (1) ◽  
pp. 105-135 ◽  
Author(s):  
BARRIE SANDER
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Clear Distinction ◽  
Customary International Law ◽  
Legal Concepts ◽  
Superior Responsibility ◽  
Proper Interpretation

AbstractThe recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.

International Criminal Responsibility Concerning ‘Control over an Organization’ and Command Responsibility Lato Sensu

2012 ◽  
Vol 12 (2) ◽  
pp. 293-300 ◽  
Author(s):  
Hiromi Satō
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law

The International Criminal Court recently presented its arguments concerning criminal responsibility arising pursuant to the theory of ‘control over an organization’. This theory is based on the notion of ‘perpetrator-by-means’ found in the Rome Statute, Article 25(3)a. The court appears to have utilized this theory to establish principal responsibility for ordering in contrast to accessorial responsibility prescribed in Article 25(3)b of the said Statute. However, it should be noted that customary international law has long established the notion of command responsibility lato sensu, recognizing the serious and primary nature of superiors’ responsibility for ordering. This article argues that there should be some conscious sequence between the discussions of ‘control over an organization’ and command responsibility lato sensu for the sake of the integrity of the discourse in international criminal law.

Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory

2013 ◽  
Vol 13 (4) ◽  
pp. 789-828 ◽  
Author(s):  
Lachezar Yanev ◽  
Tijs Kooijmans
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Joint Control ◽  
Legal Basis ◽  
Customary International Law ◽  
Control Paradigm

The concept of co-perpetration and its proper construction continues to be a topic that causes controversy and fragmentation in the field of international criminal law. The latest proof of this is the Lubanga Trial Judgment in which the three judges disagreed on whether this mode of liability should be based on the theory of joint control over the crime. The present article examines and further develops Judge Fulford’s arguments against the adoption of this theory in cases brought before the International Criminal Court. It analyses the Rome Statute and its drafting history, as well as customary international law and domestic jurisprudence, in order to review the contention that there is no legal basis for applying the joint control paradigm in ICC proceedings. In addition to this, several recent ICC cases are examined to underscore the practical weaknesses of the control over the crime approach to co-perpetration.

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