scholarly journals Specific Direction: An Unspecific Threshold

2019 ◽  
Vol 6 (2) ◽  
pp. 320
Author(s):  
Dhruv Sharma
Keyword(s):  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Charles Taylor ◽  
Criminal Court ◽  
Customary Law ◽  
International Criminal Law ◽  
Specific Direction ◽  
History Of

Aiding and abetting has been recognised as a form of individual criminal responsibility since the 1940’s when the first international tribunals were created. The form of responsibility had a relatively simplistic history of application until it faced an unprecedented upheaval through the introduction of the threshold of specific direction in the Perišić appeals judgment. The judgment has since been rejected by the Special Court of Sierra Leone (SCSL) in the Charles Taylor judgment and by the International Criminal Tribunal for Former Yugoslavia (ICTY) in Sainović, Popović and Stanišić and Simatović judgment. The present paper focuses on the relevance of the standard of specific direction before the International Criminal Court (ICC). It argues that the standard is unjustifiable under international criminal law as, firstly, no convictions or acquittals have been affected on the standard and, secondly and more importantly, the text of the Rome Statute has rejected the standard. The standard of specific direction has not legal pedigree under customary law, is contrary to the text of the Rome Statute and counter-intuitive to the objectives of the ICC as it unreasonably increases evidentiary requirements at the Court and consequently makes the fight against impunity, an already challenging task, even more difficult.

scholarly journals The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 245-250
Author(s):  
Bing Bing Jia
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Decision Makers ◽  
International Criminal Law ◽  
International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

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 The Rapes Committed against the Yazidi Women: a Genocide?

2020 ◽  
pp. 50-71
Author(s):  
Paula Castellano San José
Keyword(s):  
Violence Against Women ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Islamic State ◽  
Current Definition ◽  
Actus Reus ◽  
History Of ◽  
Definition Of

Rape has been used as a tool of war throughout the history of mankind. With the establishment of the International Criminal Court, rape was included in the Rome Statute, being internationally recognized as a war crime, a crime against humanity and a means to commit genocide. The Islamic State of Iraq and Syria, in its war to establish the caliphate, has carried out a campaign of sexual violence against women of religious minorities such as the Yazidi. This article examines the evolution of the definition of rape in International Criminal Law and applies the current definition to the crimes committed by ISIS against the Yazidi. The study assesses the elements of the actus reus of genocide and considers that the actions carried out by the Islamic State towards the Yazidi could qualify as a genocide by means of rape.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.6 Genocide/Crime de génocide

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Customary Law ◽  
Applicable Law ◽  
Definition Of

This chapter comments on Article 6 of the Rome Statute of the International Criminal Court. Article 6 defines the crime of genocide, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The first important ruling on genocide by one of the ad hoc tribunals — the September 2, 1998 judgment of a Trial Chamber of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu — was issued several weeks after the adoption of the Rome Statute. Since then there have been several important judicial pronouncements by the Appeals Chambers of the ad hoc tribunals addressing a range of issues relevant to the interpretation of article 6 as well as two judgments of the International Court of Justice. The Court has indicated that the definition of genocide in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (and therefore article 6 of the Rome Statute) reflects customary law.

The Modes of Liability at the icc: The Labels that Don’t Always Stick

2015 ◽  
Vol 15 (4) ◽  
pp. 629-664 ◽  
Author(s):  
Marina Aksenova
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Practical Application ◽  
Long Run ◽  
Degree Of Control ◽  
Individual Criminal Responsibility

The provision in the Rome Statute of the International Criminal Court (icc) on individual criminal responsibility can be considered sufficiently elaborated. The level of detail of Article 25(3) does not, however, prevent heated debates on its practical application. The Court initially leaned towards the expanded notion of “commission”, interpreted to cover instances where persons do not physically perpetrate the crime but enjoy certain degree of control over it. Underlying this trend was the premise that “commission” denotes a higher degree of blameworthiness, and is therefore more appropriate to describe involvement in mass atrocities. In contrast, the Katanga trial judgement, issued in March last year, undermined the conception of perpetration as a superior form of responsibility in international criminal law. Which position will prevail in a long run? The article explores the two convictions rendered by the Court to date and argues that the answer to this question is still unclear.

scholarly journals The Legal Politics of the Article 16 Decision: The International Criminal Court, the un Security Council and Ontologies of a Contemporary Compromise

2014 ◽  
Vol 7 (3) ◽  
pp. 297-319 ◽  
Author(s):  
Kamari Maxine Clarke ◽  
Sarah-Jane Koulen
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
African State ◽  
Criminal Court ◽  
International Criminal Law ◽  
Giorgio Agamben ◽  
History Of ◽  
The Law ◽  
Ontological Shift

This introductory essay aims to offer a framework through which to make sense of the controversies arising from International Criminal Court (icc) intervention in Africa. One such controversy is related to the deployment of the powers to refer and defer icc cases central to Article 16 of the Rome Statute for the icc. The manner in which the unsc has employed this power has led critics – particularly on the African continent – to conclude that a range of geopolitics has undermined the judicial independence of the icc. The essay argues, therefore, that the drafting history of Article 16 of the Rome Statute shows the workings of the political origins of the law and the manner in which foundational inequalities were woven into the very fabric of the Rome Statute. Following theorists such as Giorgio Agamben and Walter Benjamin who have conceptualized law as violence and who have taken seriously the ways in which violence and inequality live on through the law, the authors argue that not only can contemporary ontologies of international criminal law not escape the politics of its making, but if we are to adequately address the conditions of violence in the postcolonial African state there must be an ontological shift in the way we conceptualize law. They propose a rethinking that acknowledges root causes of violence and that take seriously politically adumbrated histories of violence that continue live in the armature of the postcolonial state. Considering how and when political settlements are relevant and rethinking how complementarity and cooperation might work more effectively are key to the conceptual framework.

National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals

2010 ◽  
Vol 10 (2) ◽  
pp. 209-241 ◽  
Author(s):  
Harmen van der Wilt
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Customary Law ◽  
International Criminal Law ◽  
Criminal Proceedings ◽  
National Legislation ◽  
Territorial State ◽  
International Criminal Tribunals

AbstractThis article explores to what extent the ad hoc tribunals have made use of the national law of the state where the crimes have allegedly been committed in their quest for elements of crimes, concepts of criminal responsibility, grounds for excluding criminal responsibility and guidelines for sentencing. At first sight, one would expect the legislation of the territorial state to feature only as an indication of 'general principles of law' or 'international customary law'. However, the investigation of case law reveals that the law of the territorial state holds a far more prominent place. In search for rationales, the author suggests that, initially, national legislation has been used to plug the legal gaps in international criminal law. However, more recently the ad hoc tribunals have canvassed the national legislation of the territorial state, in order to find out whether this state would qualify to take over criminal proceedings against mid-level perpetrators. The author suggests that the International Criminal Court might follow suit, in order to give shape to its policy of 'positive complementarity'.

scholarly journals A Prosecution too far? Reflections on the Accountability of Heads of State under International Criminal Law

2010 ◽  
Vol 41 (2) ◽  
pp. 179
Author(s):  
Steven Freeland
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Head Of State ◽  
Key Issues ◽  
Heads Of State

The recent issue by the International Criminal Court (ICC) of an arrest warrant against Omar Al Bashir, the President of Sudan, for alleged war crimes and crimes against humanity, represents the first time that the ICC has acted in such a way against an incumbent Head of State. It has renewed the debate about the potential international criminal responsibility of Heads of State and has led to strong opinions both for and against such actions. Yet, the prosecution of Heads of State is by no means a new phenomenon, and its continued use represents an important element in the internationalisation of justice that has gained renewed emphasis over the past two decades. This article offers some thoughts and reflections on several key issues associated with this debate, focusing particularly on the political, legal and historical dimensions that have combined to allow for the prosecution under international criminal law of any person, irrespective of their official capacity. It also examines the important role in this regard for the ICC, the world's first permanent international criminal tribunal, as well as the increasing range of prosecutions now taking place within national jurisdictions, as the period of impunity in relation to the commission of international crimes that had existed for several decades up to the 1990s has come to an end. 

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.28 Responsibility of commanders and other superiors/Responsabilité des chefs militaires et autres supérieurs hiérarchiques

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Customary Law ◽  
Military Commanders ◽  
Superior Responsibility

This chapter comments on Article 28 of the Rome Statute of the International Criminal Court. Article 28 consists of two paragraphs; the first addressing superior responsibility in a military context, the second dealing with the issue with respect to civilians. Unlike the superior responsibility liability that attaches to military commanders, which was well accepted, application of the concept to civilians proved to be very controversial. Some Trial Chambers at the ad hoc tribunals have referred to article 28 as a basis for the view that the ‘distinction between military commanders and other superiors embodied in the Rome Statute is an instructive one’, although this is a rather isolated opinion. Nevertheless, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has acknowledged that whether the liability of civilian superiors ‘contains identical elements to that of military commanders is not clear in customary law’.

Implementing Legislation for the Application of the Law on the International Criminal Tribunal for the Former Yugoslavia and Criteria for its Evaluation

1998 ◽  
Vol 1 ◽  
pp. 35-68
Author(s):  
Ivo Josipović
Keyword(s):  
World War Ii ◽  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
History Of

The establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (ICTY) and the adoption of its Statute heralded a new page in the history of international, particularly international criminal, law. For the first time since World War II, an international criminal court was established. The Tribunal was created in order to achieve important legal and political goals: to punish perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia since 1991; to prevent further crimes; to facilitate the peace process; and to serve as a test for a future permanent international criminal court.

Sign in / Sign up

Export Citation Format

Share Document