Individual Criminal Responsibility in International Law 1st Edition by Elies Van Sliedregt 9780199560363 0199560366
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ISBN 10:0199560366
ISBN 13:9780199560363
Author:Elies Van Sliedregt
This book examines the concept of individual criminal responsibility for serious violations of international law, i.e. aggression, genocide, crimes against humanity and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed ‘intellectual perpetrators’. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable.
By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defense of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.
Individual Criminal Responsibility in International Law 1st Table of contents:
PART 1: INTRODUCTION
1. Criminal Responsibility in International Law
1.1 War and law
1.2 From war crimes law to international criminal law
1.3 State responsibility vis-a-vis individual responsibility
1.4 International criminal law
1.4.1 Nature of norms
1.4.2 Pluralism or uniformity?
1.4.3 Sources of law
2. Collective Criminality, Individual Responsibility
2.1 Individual criminal responsibility
2.1.1 Developments in municipal criminal law
2.1.2 International criminal responsibility
2.2 System criminality
2.3 Bernays’ collective criminality theory
2.3.1 Conspiracy—criminal responsibility at leadership level
2.3.2 Criminal organizations—criminal responsibility at execution level
2.4 Subsequent proceedings
2.4.1 Membership liability
2.4.2 Common design
2.4.3 Complicity
2.5 Concluding observations
3. Parameters of Criminal Responsibility
3.1 Terminology
3.2 Subjective element
3.2.1 ICC Statute
3.2.2 Ad hoc tribunals
3.3 Objective element
3.3.1 Broad and narrow understanding
3.3.2 Commission and omission
PART 2: ATTRIBUTING CRIMINAL RESPONSIBILITY
4. Perpetration and Participation
4.1 Codifying individual criminal responsibility
4.2 Participation in crime: a comparative perspective
4.2.1 Unitary and differentiated models
4.2.2 Derivative and autonomous models
4.2.3 Contribution and crime-oriented models
4.2.4 Naturalistic and normative models
4.2.5 Differentiated and unitary: a fading distinction
4.3 International models of participation: preliminary observations
4.4 Concluding remarks
5. Principals and Accessories
5.1 Introduction
5.2 The principal–accessory distinction
5.2.1 The advance of the normative approach
5.2.2 Bolstering the principal status
5.3 Distinguishing criteria: Roxin’s theory
5.4 ‘Control of the crime’
5.4.1 Dualism
5.4.2 Roxin’s theory and the ICC
5.5 Concluding observations
6. Forms of Criminal Responsibility
6.1 Introduction
6.2 Direct and indirect perpetration
6.2.1 Comparative perspective
6.2.2 International criminal tribunals
6.2.3 ICC
6.3 Co-perpetration
6.3.1 Comparative perspective
6.3.2 International criminal tribunals
6.3.3 ICC
6.4 Instigation, ordering, soliciting, and inducing
6.4.1 Comparative perspective
6.4.2 International criminal tribunals
6.4.3 ICC
6.5 Planning
6.5.1 Comparative perspective
6.5.2 International criminal tribunals
6.6 Aiding and abetting
6.6.1 Common law origin
6.6.2 Comparative perspective
6.6.3 International criminal tribunals
6.6.4 ICC
6.7 Common purpose liability
6.7.1 Comparative perspective
6.7.2 International criminal tribunals
6.7.3 ICC
6.8 Attempt
6.8.1 Comparative perspective
6.8.2 International criminal tribunals
6.8.3 ICC
6.9 Conclusion: mixed models of criminal participation
7. Crime-Specific and Leadership Modalities
7.1 Introduction Leadership modalities
7.2 JCE at leadership level
7.2.1 Indirect co-perpetration and interlinked JCE
7.2.2 Observations
7.3 Indirect co-perpetration at the ICC
7.3.1 Observations
7.4 Indirect co-perpetration and interlinked JCE compared Crime-specific modalities
7.5 Complicity in genocide
7.5.1 International criminal tribunals
7.5.2 ICC
7.6 Inchoate offences
7.6.1 Conspiracy to commit genocide
7.6.2 Incitement to commit genocide
7.7 Concluding observations: theories of imputation
8. Superior Responsibility
8.1 Introduction
8.2 Developments in the law on superior responsibility
8.2.1 The Ĉelebići case
8.2.2 Successor superior responsibility
8.2.3 Loosening the superior–subordinate relationship
8.2.4 Observations
8.3 The ambiguous nature of superior responsibility
8.4 Article 28 of the ICC Statute
8.4.1 Textual analysis
8.4.2 Nature of liability
8.5 Superior responsibility in national law
8.6 A multilayered concept
8.7 Superior responsibility as parallel liability
8.7.1 Revisiting its nature
8.7.2 Superior responsibility as ‘lex specialis’
8.8 Concluding observations
PART 3: DEFENCES
9. Grounds for Excluding Criminal Responsibility
9.1 Introduction
9.2 Preliminary observations
9.2.1 International law defences and criminal law defences
9.2.2 Justification and excuse
9.2.3 The mental element and defences
9.2.4 The reasonable person standard and Garantenstellung
9.2.5 The culpa in causa or ‘conduct-in-causing’ analysis
9.3 Article 31 of the ICC Statute
9.4 Mental defect
9.4.1 Text
9.4.2 Comparative perspective
9.4.3 International jurisprudence
9.5 Intoxication
9.5.1 Text
9.5.2 Comparative perspective
9.5.3 International jurisprudence
9.6 Self-defence
9.6.1 Preliminary observations
9.6.2 Text
9.6.3 Comparative perspective
9.6.4 International jurisprudence
9.7 Duress
9.7.1 Text
9.7.2 Comparative perspective
9.7.3 International jurisprudence
9.8 Non-statutory defences
9.8.1 Belligerent reprisals
9.8.2 Tu quoque
9.8.3 Military necessity
9.9 Concluding observations
10. Mistake of Fact and Law
10.1 Introduction
10.2 The defence of mistake
10.2.1 Descriptive and normative elements
10.2.2 Mistake of fact
10.2.3 Mistake of law
10.2.4 The scope of mistake of law in ICL
10.3 International jurisprudence
10.4 Comparative perspective
10.4.1 Anglo-American law
10.4.2 Civil law
10.5 Article 32 of the ICC Statute
10.5.1 The interplay between Articles 32 and 30 of the ICC Statute
10.5.2 Interpreting Article 32
10.6 Concluding observations
11. Superior Orders
11.1 Introduction
11.2 Legal history
11.3 Article 33 of the ICC Statute
11.3.1 Text
11.3.2 Three conditions
11.4 International jurisprudence
11.5 Superior orders in national law
11.5.1 The conditional liability approach
11.5.2 Absolute liability approach
11.5.3 A combined approach
11.5.4 Justification or excuse?
11.6 Battlefield reality
11.7 Concluding observations
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