Customary International Law as a Basis of an Individual Criminal Responsibility

2016 ◽  
pp. 53-69
Keyword(s):  
International Law ◽  
Criminal Responsibility ◽  
Customary International Law ◽  
Individual Criminal Responsibility

Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained through Torture by Another State

2005 ◽  
Vol 23 (3) ◽  
pp. 349-378 ◽  
Author(s):  
Matt Pollard
Keyword(s):  
Human Rights ◽  
National Security ◽  
International Law ◽  
Criminal Responsibility ◽  
State Responsibility ◽  
Customary International Law ◽  
Real Risk ◽  
International Law Commission ◽  
Individual Criminal Responsibility ◽  
Law Commission

The author argues that a State violates international law when it transmits questions for use in the interrogation of an individual by another State, or informally uses for its own national security purposes information received through interrogations by another State, where it knows or should know that there is a real risk that the interrogation will or did involve torture. The sources of law relied upon include: the comprehensive, absolute, and non-derogable prohibition of torture under treaty and customary international law; rules ascribing individual criminal responsibility for complicity or participation in acts of torture; and the secondary rules of State responsibility (using the framework of the Articles adopted by the International Law Commission). The author specifically considers and rejects the argument that territorial and jurisdictional limits on the human rights responsibilities of States preclude responsibility for participation in torture ‘out-sourced’ in this manner to another State.

Individual Criminal Responsibility in the Execution of a "Joint Criminal Enterprise" in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia

2006 ◽  
Vol 6 (1) ◽  
pp. 63-120 ◽  
Author(s):  
Attila Bogdan
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
Criminal Enterprise ◽  
Customary International Law ◽  
Joint Criminal Enterprise ◽  
Individual Criminal Responsibility

AbstractThis article explores the development of "joint criminal enterprise" form of responsibility in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (hereinafter "Yugoslav Tribunal"). Although "joint criminal enterprise" does not appear in the Yugoslav Tribunal Statute, this form of responsibility was read into the Statute by the tribunal judges and is repeatedly relied on in finding individuals guilty in cases before the tribunal. In particular, ever since the Appeals Chamber in Prosecutor v. Tadic held that "joint criminal enterprise", as a form of accomplice liability, is "firmly established in customary international law", other Trial and Appeals Chamber decisions continue to follow this holding. This article takes a critical look at some of the fundamental issues associated with the development of "joint criminal enterprise" at the Yugoslav Tribunal, in particular the methodology employed by the Appeals Chamber in Tadic. In addition, the article also examines the similarities between "joint criminal enterprise" and U.S. conspiracy law, and whether the use of "joint criminal enterprise" at the Yugoslav Tribunal violates the "principles of legality".

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.

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.

Legislated Out of Existence: Mass Arbitrary Deprivation of Nationality Resulting in Statelessness as an International Crime

2020 ◽  
Vol 20 (6) ◽  
pp. 1026-1067
Author(s):  
Cóman Kenny
Keyword(s):  
International Law ◽  
Rome Statute ◽  
Legal Status ◽  
Criminal Responsibility ◽  
International Crime ◽  
World War ◽  
Mass Atrocity ◽  
The Individual ◽  
First Time ◽  
Individual Criminal Responsibility

Abstract A state’s prerogative to legislate for nationality remains subject to international law, with the arbitrary deprivation of nationality prohibited. The human rights implications of statelessness are profound, permeating all aspects of life and resulting in the marginalisation and oppression of those affected. Nonetheless, states have implemented laws depriving particular groups of legal status and making them stateless. In addition to the severe impact on the individual, such targeted discrimination creates a permissive atmosphere of dehumanisation that threatens a group’s existence and has been the precursor to mass atrocity. This article assesses, for the first time, whether individual criminal responsibility could be established for the creation or maintenance of a state policy to arbitrarily deprive a group of its nationality, rendering its members stateless. Based on post-World War ii precedent, it argues that such conduct could constitute a crime under the Rome Statute.

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.

The Law and Economics of Humanitarian Law Violations in Internal Conflict

1999 ◽  
Vol 93 (2) ◽  
pp. 394-409 ◽  
Author(s):  
Jeffrey L. Dunoff ◽  
Joel P. Trachtman
Keyword(s):  
Human Rights ◽  
International Law ◽  
Law And Economics ◽  
Criminal Responsibility ◽  
Internal Conflict ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Methodological Approaches ◽  
Domestic Law ◽  
Individual Criminal Responsibility

The problem of criminal responsibility for human rights atrocities committed in internal conflict provides an appropriate vehicle for examining various theoretical and methodological approaches to international law. The issues raised include the following: Does international law provide for individual criminal responsibility for such acts? How best can these atrocities be prevented? Should international law address these matters or are they better left to domestic law? Why does international legal doctrine distinguish between human rights violations committed in international conflict and the identical acts committed in internal conflict?

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