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18. The Adoption of the essential features of the adversarial system  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter begins with a comparison of the inquisitorial and adversarial systems of criminal procedure. It then discusses trial proceedings; appellate proceedings; and the adoption of the adversarial model at the international level.

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11. Aggression  

This chapter focuses on the crime of aggression. It first traces the historical development crime of aggression. It then addresses the question of who can be considered a perpetrator of the crime; outlines the manner in which the crime can be committed; examines the controversial question of how ‘aggression’ is to be defined for the purposes of the offence; and distinguishes between aggression and lawful uses of military force in international law. The remainder of the chapter discusses some controversial cases of the use of force and whether they might constitute aggression; outlines the mental element required; explains the applicable law before the International Criminal Court (ICC); and explores the possibility of prosecuting acts of aggression before national courts.

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21. Appeals and enforcement  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

The right of defendants to appeal against conviction or sentence is normally regarded as a fundamental human right. At present this right is laid down in numerous international treaties on human rights, as well as in the Statutes of international courts. The notion and purpose of appellate proceedings vary in national systems. Subject to a number of specifications and exceptions, in civil law countries, that is countries of Romano-Germanic legal tradition, these proceedings amount largely to a retrial by a court of appeal. In contrast, in most common law countries appellate proceedings do not lead to a retrial. Appeals courts, which do not have any jury, do not review facts, but decide on the basis of the trial record. In international criminal proceedings neither the common law system nor the civil law model have been upheld. Rather, a mixed system has been accepted, which is discussed in this chapter.

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Antonio Cassese and Paola Gaeta

This third edition of Cassese’s International Criminal Law provides an account of the main substantive and procedural aspects of international criminal law. Adopting a combination of the classic common law and more theoretical approaches to the subject, it discusses: the historical evolution of international criminal law; the legal definition of the so-called core crimes (war crimes, crimes against humanity, genocide) plus aggression, torture and terrorism; the forms and modes of criminal responsibility; and the main issues related to the prosecution and punishment of international crimes at the national and international level, including amnesties, statutes of limitations and immunities. The book guides the reader through a vast array of cases and materials from a number of jurisdictions, providing analysis that brings the political and human contexts to the fore. The International Criminal Court and all the other modern international criminal courts are fully covered, both as regards their structure, functioning and proceedings, and as far as their case law is concerned.

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5. Crimes against humanity  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter begins with discussions of the Nuremberg Charter and subsequent developments in international law. It then covers the notion of crimes against humanity today; objective and subjective elements; the authors and victims of crime; and Article 7 of the International Criminal Court Statute and customary international law.

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9. Crimes against humanity  

This chapter discusses the definition of crimes against humanity, its underlying offences, and some of the historical and theoretical issues surrounding the offence. It first outlines the evolution of the legal definition of crimes against humanity, which occurred through the statutes of international criminal tribunals. It then deals with the ‘contextual element’ of the offence; considers the prohibited acts that may form the conduct underlying a crime against humanity, with the exception of the complex crime of persecution; and examines the crime of persecution. Finally, it re-considers the question why there should be a separate category of crimes against humanity.

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13. Defences or grounds for excluding criminal responsibility  

This chapter addresses one of the more contentious issues in international criminal law: the extent to which a defendant should be able to plead that there are circumstances excusing or justifying what will invariably be appalling crimes. It first notes that while the distinction between justifications and excuses is known in a number of national legal systems, it is of no direct relevance to international criminal law. It then discusses the following defences before international criminal tribunals: mental incapacity, intoxication, self-defence, duress and necessity, mistake of fact and law, and superior orders. It also considers two defences which arise under the law of war crimes: reprisals and ‘tu quoque’, and military necessity.

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7. The elements of international crimes  

This chapter discusses the elements of international crimes. In general, a crime is conceived as having two components: prohibited conduct (which may be called the objective, material, or ‘real’ element of the crime or its actus reus) and a culpable mental state (which may be called the subjective, or mental element of the crime or its mens rea). In addition to material and mental elements, certain international crimes may also require a contextual element. That is, some international crimes may require that the prohibited act occurs in or has a relationship to a particular set of circumstances: for example, a war crime must be closely connected with an armed conflict. This contextual element is sometimes also called a nexus requirement.

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3. The Elements of international crimes, in particular the mental element  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter begins with a discussion of the two main features that characterize international crime. It then explains the objective structure of international crime, which divides these crimes into conduct; consequences; and circumstances. This is followed by discussions of the mental element of international criminal law; intent; special intent (dolus specialis) recklessness or indirect intent, knowledge, culpable or gross negligence, the mental element in the International Criminal Court Statute, and judicial determination of the mental element.

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6. Fair trial rights, appeals, and revision and enforcement of sentences  

There is no general law or uniform code of international criminal procedure. The International Criminal Court's procedure is still developing, and the ad hoc international criminal tribunals have their own procedural rules. However, defendants before any of the tribunals share certain fundamental fair trial rights. This chapter examines those rights and a defendant's right to appeal against their conviction or sentence. It first introduces general fair trial rights enjoyed by the defendant. It then examines in more detail the content of the right to a public, fair, and expeditious hearing. Next, it considers some of the issues concerning legality of arrest and detention, the right of appeal, and the revision and enforcement of sentences.

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1. Fundamentals of international criminal law  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

International criminal law (ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, international terrorism) and to make those persons who engage in such conduct criminally liable. These rules consequently either authorize states, or impose upon them the obligation to prosecute and punish such criminal conducts. This chapter discusses the main features of ICL; the sources of ICL; and the notion of international crimes.

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19. General principles governing international criminal trials  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

The Statutes of the International Criminal Court, and of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda enumerate a list of rights that mirrors many of the same rights as are found in international human rights instruments and domestic constitutions. These various rights may be distilled into six minimum principles: no implicit or explicit measure requiring self-incrimination; adjudication by impartial judges; a presumption of innocence and corresponding burden of proof on the prosecutor; prompt and detailed communication of the charges and sufficient time, opportunity, and resources to challenge those charges; trial without undue delay; and a public hearing. This chapter discusses the interpretation of these rights and principles before international criminal courts, and their application to selected practical issues.

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6. Genocide  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

The term ‘genocide’ refers to the intention to destroy entire groups, whether national, racial, religious, cultural, and so on. Genocide acquired autonomous significance as a specific crime in 1948, when the UN General Assembly adopted the Genocide Convention, whose substantive rules may largely be considered as declaratory of customary international law. This chapter analyzes the main features of the Genocide Convention and examines the legal ingredients of the crime of genocide, as also clarified in international and national case law. It discusses developments in the case law on genocide; objective and subjective elements of genocide; protected groups; two problematic aspects of genocide; genocide and crimes against humanity; and Article 6 of the International Criminal Court Statute and customary international law.

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10. Genocide  

This chapter focuses on the crime of genocide. The prohibition against genocide is now found in treaty and customary law, and is universally accepted as being an international crime ‘whether committed in time of peace or in time of war’. Genocide requires that a prohibited act is committed against a member of one of the protected groups, being a ‘national, ethnical, racial, or religious group’. The chapter first considers the definition of the protected groups. It then outlines the legal definitions of the prohibited acts; considers whether there is a ‘contextual element’ required as part of the crime of genocide; and examines the mental element of the crime of genocide and the role of the ‘special intent’ requirement.

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14. International criminal courts  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the process toward the eventual adoption of a Statute for a permanent International Criminal Court (ICC) and the adoption of Statutes of various ad hoc international criminal courts. The process can be conceptualized in terms of several distinct phases: abortive early attempts (1919–45); the establishment of the Nuremberg and Tokyo Tribunals in the aftermath of the Second World War (1945–7); the post-Cold War ‘new world order’ and the establishment by the UN Security Council of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (1993–4); the drafting and adoption of the ICC Statute (1994–8); and the establishment of ad hoc hybrid criminal courts.

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International Criminal Law provides an introduction to a fascinating subject area. Structured in four parts, the first part of the work looks at the foundations of international criminal law. Part II considers issues surrounding the prosecuting of international crimes. It analyses areas such as jurisdiction, evidence, procedure, and appeals. Part III is about core international crimes and it examines topics such as war crimes, genocide, crimes against humanity, and aggression. The final part looks at defendants in international criminal trials. Finally, consideration is given to issues such as legal defences and immunities under international law.

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16. International versus national jurisdiction  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the main models that have been established to regulate issues of concurrent jurisdiction of international and national criminal courts over certain international crimes. It compares the Nuremberg scheme and the International Criminal Court (ICC) scheme. It considers the primacy of international criminal courts with respect to national jurisdictions, and the complementarity of the ICC. It also discusses the main models of states’ judicial cooperation with international criminal courts adopted so far.

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20. Investigation and trial before international criminal courts  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter highlights the most significant features of investigation and trial procedure before international criminal courts. It assesses how fairness has been balanced with effectiveness in the unique and challenging context of conflict or post-conflict environments.

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5. Investigations, prosecutions, evidence, and procedure  

This chapter deals with international criminal procedure, focusing on the International Criminal Court (ICC). It first introduces international criminal procedure and the various parties involved in the process (judges, prosecutors, suspects or accused persons, and witnesses and victims). It then examines the pre-trial phase of proceedings, including criminal investigation, the decision to prosecute, and the role of the document specifying the charges (called an ‘indictment’ by some courts and national systems). Next, the chapter provides an overview of the trial phase and examines the role of guilty pleas, evidence (and its pre-trial disclosure), and the conduct of trial proceedings.

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4. Jurisdiction and structure of international criminal courts and tribunals  

This chapter provides a general overview of the structure and workings of the different types of international criminal courts and tribunals. It first introduces the basic types of international criminal tribunal as well as the advantages and disadvantages of each. It then outlines the forms of jurisdiction; considers in more detail the ways in which the jurisdiction of the International Criminal Court (ICC) may be engaged and the limitations which are inherent in its statute on when it may proceed with an investigation or trial; and examines the structure of the ICC as a representative international criminal tribunal, which is internally divided into judicial, prosecutorial, and administrative organs.