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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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the notions of omission liability and superior responsibility. International criminal liability may arise not only as a result of a positive act but also from an omission; that is, the failure to take the required action. Omission is only criminalized when the law imposes a clear obligation to act and the person fails to do what is legally required. The post-Second World War tribunals recognized that both action and omission to act in accordance with a legal duty could fulfil the physical element (actus reus) of a crime. Additionally, the doctrine of superior responsibility (also referred to as command responsibility, since it originally developed in a military context) emerged in its modern form as a discrete and important type of omission liability in the post-war case law. Pursuant to this doctrine, a superior who omits to prevent or punish his subordinate’s criminal acts may be held criminally responsible.
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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the two major theories that are currently in use in international criminal law to address group criminality: joint criminal enterprise; and co-perpetration by control over the crime. Under these theories, each participant will be treated as a principal, provided that he played a sufficiently important role in the commission of the crime. Gradations of culpability may be taken into account at the sentencing stage. In addition, although joint criminal enterprise focuses on shared intention and co-perpetration focuses on shared action, the application of either theory will yield the same result in most cases. Indirect perpetration is then analyzed.
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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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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
Individuals who committed international crimes were once able to rely on the expansive doctrines of superior orders, or acting in an official capacity, to excuse their liability. These doctrines, at least in their widest versions, were firmly repudiated in the London Charter. This chapter discusses the two circumstances where superior orders may still have some vitality as an excuse: mistake of law or duress. The overall position appears to be, however, that there is now little scope for mistake of law even in respect to superior orders, and that while duress certainly is a well-founded defence in principle, it is very rarely accepted in practice. Mistake of fact involves a different issue: non-awareness of certain facts that show the absence of mens rea. Superior orders may indeed be the source of such misleading information, but then the proper claim is properly the absence of mens rea that negates criminal liability, not excuse.
