The Fundamental Concept of Crime in International Criminal Law

The Fundamental Concept of Crime in International Criminal Law

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Iryna Marchuk The Fundamental Concept of Crime in International Criminal Law A Comparative Law Analysis

Iryna Marchuk Faculty of Law University of Copenhagen Copenhagen, Denmark ISBN 978-3-642-28245-4 ISBN 978-3-642-28246-1 (ebook) DOI 10.1007/978-3-642-28246-1 Springer Heidelberg New York Dordrecht London Library of Congress Control Number: 2013945860 Springer-Verlag Berlin Heidelberg 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Acknowledgements I would like to thank everybody who made the publication of this book possible. The book is a substantially revised and expanded version of my Ph.D. thesis entitled Reconciliation of Major Legal Systems Under The Umbrella of International Criminal Law: A Study on the Law on Mens Rea that was successfully defended in January 2011. My gratitude goes to the host institution Faculty of Law, University of Copenhagen. It has been a great pleasure to have earned my Ph.D. degree within the walls of the University where at the moment I work as an associate professor. The thesis was written under the thoughtful supervision of Professor Jørn Vestergaard whose comments on the early drafts were invaluable. I am immensely grateful for his continuous support, encouragement and belief in the success of my work. I could not wish for a better supervisor. I would also like to thank Dr Christoffer Wong for his feedback and comments during the seminar on the preliminary evaluation of my thesis in early 2010. I extend my special thanks to the members of my Ph.D. evaluation committee, Professor William Schabas (National University of Ireland/currently Middlesex University), Dr Mohamed Elewa Badar (Brunel University) and Professor Jens Elo Rytter (University of Copenhagen). The written assessment as well as feedback during the public defence of the thesis determined to a great extent the structure and contents of this book. The significant part of this project was carried out during my research stay at the Lauterpacht Centre for International Law in Cambridge from September 2009 until February 2010. My gratitude extends to everybody who made my stay at the Centre most convivial. Some parts of this book were heavily edited and re-written during my stay as a Visiting Professional with the Appeals Division of the Chambers of the International Criminal Court in May-September 2012, which gave me a unique opportunity to get an invaluable insight into the workings of the Court. My gratitude goes to The Finneske Legat for the financial contribution that made the publication of this book a reality. My special thanks go to my research assistant Aloka Wanigasuriya who helped me to polish the overall language of the book and brought to my attention mistakes and internal inconsistencies, which I was not able to notice myself. v

vi Acknowledgements This book would have never materialised without the support and love of my parents, Vitaliy and Svitlana. Being a role model, my father has instilled into me the desire to learn and achieve my goals. I am very fortunate to have received strong support of my family behind every important step of my life. Copenhagen, Denmark March 1, 2013 Iryna Marchuk

Contents 1 Introduction... 1 1.1 Relevance and Significance of Comparative Method.......... 2 1.2 Shaping International Criminal Law Through General Principles of Law Derivative from National Jurisdictions....... 3 1.3 Structure.......................................... 5 2 The Concept of Crime in Common Law Jurisdictions... 7 2.1 The Concept of Crime in English Criminal Law... 7 2.1.1 Actus Reus... 8 2.1.2 Mens Rea... 9 2.2 The Concept of Crime in American Criminal Law............ 24 2.2.1 Actus Reus... 24 2.2.2 Mens Rea... 25 2.3 Interim Conclusions... 36 3 The Concept of Crime in Continental Law Jurisdictions... 39 3.1 The Concept of Crime (Strafrechtliche Systembildung) in German Criminal Law... 39 3.1.1 Statutory Elements of Criminal Offence (Tatbestandsmäßigkeit)... 40 3.1.2 Unlawfulness (Rechtwidrigkeit)... 41 3.1.3 Culpability (Schuld)... 41 3.2 The Concept of Crime in French Criminal Law... 47 3.2.1 Intention (Le Dol)... 48 3.2.2 Dol E ventuel: An Intermediate Mens Rea Standard Between Intention and Negligence..... 50 3.2.3 Negligence (La Faute Pénale)... 51 3.3 The Concept of Crime in Russian Criminal Law... 51 3.3.1 Constitutive Elements of Crime (Corpus Delicti, состав преступления)... 54 vii

viii Contents 3.4 The Concept of Crime in Danish Criminal Law... 60 3.4.1 Mental Element of Crime (Tilregnelse)... 62 3.5 Interim Conclusions... 66 4 The Concept of Crime in International Criminal Law... 69 4.1 Introductory Remarks................................. 69 4.2 Typology of International Crimes........................ 70 4.2.1 War Crimes.................................. 71 4.2.2 Crimes Against Humanity........................ 82 4.2.3 Genocide....... 87 4.3 Structure of International Crimes... 92 4.3.1 Contextual Elements... 92 4.3.2 Actus Reus... 112 4.3.3 Mens Rea... 112 4.4 Interim Conclusions... 113 5 Evolution of the Mens Rea Doctrine in International Criminal Law... 115 5.1 Introductory Remarks................................. 115 5.2 Law on Mens Rea in the Ad Hoc Tribunals... 116 5.2.1 Intent....................................... 117 5.2.2 Knowledge..... 123 5.2.3 Other Mens Rea Standards in the Jurisprudence of the Ad Hoc Tribunals... 124 5.3 The Mens Rea Doctrine in the International Criminal Court... 125 5.3.1 The Mens Rea Concept in Retrospective: Drafting History...... 126 5.3.2 Default Requirements of Intent and Knowledge Under Article 30 of the Rome Statute... 127 5.4 Interim Conclusions... 156 6 Modalities of Criminal Liability in the Jurisprudence of International Criminal Courts and Tribunals... 159 6.1 Principle of Individual Criminal Responsibility: Introductory Remarks..... 159 6.2 Modes of Criminal Responsibility..... 162 6.3 Principal Liability in International Criminal Law... 164 6.3.1 The Concept of Joint Criminal Enterprise as a Principal Form of Liability: Does It Really Stand for Just Convict Everyone?................................... 166 6.3.2 Modes of Principal Liability in the International Criminal Court... 198 6.4 Accomplice Liability in the Jurisprudence of International Criminal Courts and Tribunals................................. 220 6.4.1 Complicity Provisions in Retrospective.... 220 6.4.2 Elements of Complicity... 222 6.4.3 Forms of Complicity............................ 223

Contents ix 6.5 Command Responsibility as a Mode of Criminal Liability in International Criminal Law............................. 238 6.5.1 Command Responsibility in Retrospective............ 239 6.5.2 Command Responsibility in the Jurisprudence of the Ad Hoc Tribunals... 242 6.5.3 Superior Responsibility Under Article 28 of the Rome Statute... 243 6.6 Interim Conclusions... 250 7 Grounds Excluding Criminal Responsibility in International Criminal Law... 253 7.1 Introductory Words: Justifications v Excuses........ 253 7.1.1 Insanity, Automatism and Burden of Proof.... 254 7.1.2 Voluntary and Involuntary Intoxication.... 257 7.1.3 Duress and Necessity... 259 7.1.4 Self-Defence.................................. 266 7.1.5 Mistake of Fact..... 269 7.1.6 Mistake of Law................................ 271 7.1.7 Superior Orders...... 275 7.1.8 Interim Conclusions..... 276 Jurisprudence... 279 Bibliography... 297