Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting

War crimes, crimes against humanity, genocide and the crime of aggression could not be perpetrated without those who finance them. This article examines the basis for criminal liability in international criminal law (ICL) for persons who finance entities that perpetrate core crimes. Despite the need for clear rules, neither international courts nor scholars agree upon (i) whether liability exists for individuals who finance entities that perpetrate core crimes; and (ii) if so, the circumstances under which such liability exists. This article argues that an individual who finances an entity that perpetrates a core crime should be held criminally liable under customary international criminal law as an aider and abettor. The objective of this article is to clarify the rules that would enable international courts and tribunals to identify the extent to which individual criminal liability attaches to the financing of core crimes, as well as the legal basis for such liability. By clarifying the criminal accountability of individuals who finance entities that perpetrate core crimes, this article also seeks to clarify the mental elements of the mode of liability of aiding and abetting.

V Omission, in Particular Command Responsibility

This chapter continues the effort of this Volume to combine both comparative legal concepts with unique features of International Criminal Law. It is thus a direct result of the foundational work in Chapter II: International Criminal Law’s focus on individual criminal responsibility leads to an expressive purpose of punishments that again requires a criminalization of remote behavior by commanders and State leaders. This criminalization is based on the centuries old debate revolving around liability for omission. The chapter thus starts with a general explanation of the concept of omission vis-á-vis action. The author answers the question of whether a general omission liability exists in International Criminal Law affirmatively, recognizing a general principle of law, albeit with strict requirements. Drawing on the results from Chapter II, the author argues in favor of a criminalization of omission based on the prevention of harm and the protection of important legal goods/interests. The basis for this criminalization/liability is the respective person’s duty to act.

VI Attempt as a Special Form of Individual Criminal Responsibility

This chapter first explains why attempt – an incomplete offence lacking the fulfilment of the actus reus of the respective crime – should be punishable at all and whether/how it is punishable under International Criminal Law. This chapter develops the essential elements of attempt liability on the basis of comparative law with a view to most important national legal systems . It analyses in detail the provision in the Rome Statute and proposes a ‘formula of approximation’ with regard to ‘commencement of execution’ stage (that is the moment of punishability) of attempt. It then applies this attempt formular to the international core crimes. Last but not least, abandonment of attempt is also discussed.

IV Individual Criminal Responsibility

This chapter starts with the universal recognition of the concept of individual criminal responsibility in ICL as perhaps the most important result of its historic precedents of Nuremberg and Tokyo. It offers a profound analysis of the ‘historic’ case law on individual criminal responsibility, namely the post WW II case law (Nuremberg, Tokyo, the one by the allied powers and Germany), but also relevant case law on other (mainly) State-sponsored criminality (especially in Latin America). It then turns to the ‘modern’ law of individual criminal responsibility and thus analyses the law and jurisprudence of the UN Ad Hoc Tribunals, of the mixed tribunals and, with a particular emphasis, of the ICC. In terms of doctrine a special focus lies on the forms of participation which enable us to hold the masterminds of the international crimes accountable, that is, joint criminal enterprise (JCE) and indirect perpetration by way of an organization (Organisationsherrschaft). In this respect, the chapter deals with what is probably the most important field of the ongoing theoretization of International Criminal Law.

An overview on Individual Criminal Liability for Crime of Aggression

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

‘Guilty of Having Been Obedient’

One of the most debated subjects among academics and experts in the fields of International Humanitarian Law and International Criminal Law is the principle of individual criminal responsibility for war crimes. Even more contentious is that aspect of the principle relating to crimes committed under superior orders – a legal strategy employed by many defendants at the Nuremberg war crimes trials. This paper contributes to the debate by establishing the extent to which Article 33 of the Rome Statute, which adopts the conditional liability approach, is justified. The article achieves its objective by critically discussing the subject from a combination of legal, psychological and moral philosophical perspectives. It presents a historical account of the superior orders defence, highlighting how two conflicting liability doctrines, absolute liability and conditional liability, have traditionally been applied by the courts, and taking a stance in favour of the latter. The article, however, underlines some pressing questions that Article 33 raises. It offers a brief exegesis of the emotion of fear to show how it may destroy voluntariness, arguing that as a modifier of voluntariness, grave fear, in certain circumstances, should exculpate perpetrators in claims of crime under superior orders, even where the orders were manifestly unlawful.

EXTRADITION AS A CRIMINAL LAW INSTITUTION: PROBLEMS OF DEFINITION AND APPLICATION

The article considers topical issues of definition and implementation of the institution of extradition in the criminal law of Ukraine. There is a view that extradition should be understood only as the institution of extradition of offenders, and the transfer of convicts to serve their sentences is an independent institution of criminal law. In our opinion, this statement cannot be accepted, as it concerns an identical procedure, the systemic material and legal feature of which is its security focus on the realization of individual criminal responsibility, and this view is supported by lexical analysis of terminological concepts "extradition" and «transfer». as identical in factual content. It is noted that the obligatory legal condition for extradition (as well as transfer) is a valid international agreement, the parties to which must be Ukraine and the state requesting the extradition of the person. It is proved that the institution of extradition has a complex interdisciplinary nature, because it arises at the crossroads of constitutional law, criminal law, criminal procedure and international law. It allows to define it as a comprehensive legal procedure for transferring a person to another state to implement the principle of inevitability of criminal liability, regardless of the place of temporary actual stay. It is shown that the main task of the institute of extradition is to ensure the inevitability of bringing a person guilty of a crime to criminal responsibility, which allows to determine the fundamental basis and essence of this institution as a criminal law. It is emphasized that the institution of extradition is complex, combining the extradition of persons suspected of committing a crime and persons convicted of a crime, and both cases of its application have a common purpose – to ensure that the person guilty of the crime is prosecuted.