Individual Criminal Responsibility in International Law

Transcription

1 Individual Criminal Responsibility in International Law ELIES VAN SLIEDREGT OXPORD UNIVERSITY PRESS

2 Abbreviations Table ofcases xix xxi PART1: INTRODUCTION 1. Criminal Responsibility in International Law War and law From war crimes law to international criminal law State responsibility vis-a-vis individual responsibility International criminal law Nature of norms Pluralism or uniformity? Sourcesoflaw Collective Criminality, Individual Responsibility Individual criminal responsibility Developments in municipal criminal law International criminal responsibility System criminality Bernays' collective criminality theory Conspiracy criminal responsibility at leadership level Criminal organizations criminal responsibility at execution level Subsequent proceedings Membership liabiliry Common design Complicity Concluding observations Parameters of Criminal Responsibility Terminology Subjective element ICC Statute Ad hoc tribunals Objective element Broad and narrow understanding Commission and omission 54

3 PART 2: ATTRIBUTING CRIMINAL RESPONSIBILITY 4. Perpetration and Participation Codifying individual criminal responsibility Participation in crime: a comparative perspective Unitary and differentiated modeis Derivative and autonomous modeis Contribution and crime-oriented modeis Naturalistic and normative modeis Differentiated and unitary: a fading distinction International modeis of participation: preliminary observations Concluding remarks Principals and Accessories Introduction The principal accessory distinction The advance of the normative approach Bolstering the principal Status Distinguishing criteria: Roxin's theory 'Control of the crime' Dualism Roxin's theory and the ICC Concluding observations Forms of Criminal Responsibility Introduction Direct and indirect perpetration Comparative perspective International criminal tribunals ICC Co-perpetration Comparative perspective International criminal tribunals ICC Instigation, ordering, soliciting, and inducing Comparative perspective International criminal tribunals ICC Planning Comparative perspective International criminal tribunals Aiding and abetting Common law origin Comparative perspective International criminal tribunals ICC 127

4 xv 6.7 Common purpose liability Comparative perspective International criminal tribunals ICC Attempt Comparative perspective International criminal tribunals ICC Conclusion: mixed modeis of criminal participation Crime-Specific and Leadership Modalities Introduction 157 Leadership modalities 7.2 JCE at leadership level Indirect co-perpetration and interlinked JCE Observations Indirect co-perpetration at the ICC Observations Indirect co-perpetration and interlinked JCE compared 170 Crime-specific modalities 7.5 Complicity in genocide International criminal tribunals ICC Inchoate offences Conspiracy to commit genocide Incitement to commit genocide Concluding observations: theories of imputation Superior Responsibility Introduction Developments in the law on superior responsibility The Cekbici case Successor superior responsibility Loosening the superior-subordinate relationship Observations The ambiguous nature of superior responsibility Article 28 of the ICC Statute Textual analysis Nature of liability Superior responsibility in national law A multilayered concept Superior responsibility as parallel liability Revisiting its nature Superior responsibility as 'lex specialis Concluding observations 209

5 xvi PART 3: DEFENCES 9. Grounds for Excluding Criminal Responsibility 9.1 Introduction 9.2 Preliminary observations International law defences and criminal law defences Justification and excuse The mental element and defences The reasonable person Standard and Garantenstellung The culpa in causa or 'conduct-in-causing' analysis 9.3 Article 31 of the ICC Statute 9.4 Mental defect Text Comparative perspective International jurisprudence 9.5 Intoxication Text Comparative perspective International jurisprudence 9.6 Self-defence Preliminary observations Text Comparative perspective International jurisprudence 9.7 Duress Text Comparative perspective International jurisprudence 9.8 Non-statutory defences Belligerent reprisals Tu quoque Military necessity 9.9 Concluding observations 10. Mistake of Fact and Law 10.1 Introduction 10.2 The defence of mistake Descriptive and normative elements Mistake of fact Mistake of law The scope of mistake of law in ICL 10.3 International jurisprudence 10.4 Comparative perspective Anglo-American law Civil law

6 xvii 10.5 Article 32 ofthe ICC Statute The interplay between Articles 32 and 30 of the ICC Statute Interpreting Article Concluding observations Superior Orders Introduction Legal history Article 33 of the ICC Statute Text Three conditions International jurisprudence Superior orders in national law The conditional liability approach Absolute liability approach A combined approach Justification or excuse? Batdefield reality Concluding observations 306 Annex: Selected Provisions 307 Bibliography 313 Index 333