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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Chapter
10. Omission liability and superior responsibility
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
Chapter
15. The repression of international crimes in domestic jurisdictions
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the relation between international law and criminal jurisdiction by states and examines the main heads of jurisdiction applied by states. It then analyzes the content of the relevant international rules dealing with domestic criminal jurisdiction for the repression of international crimes.
Chapter
8. Terrorism
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
Terrorism, as in the case of torture and aggression, is often treated as outside the ‘core crimes’ bracket of deserving international criminal adjudication. Many states believe that terrorism is better investigated and prosecuted at the state level by individual or joint enforcement and judicial action. This view is strengthened by the feeling that the concept of terrorism is still controversial at the international level because it is widely held that there is no agreement yet on what some states deem to be a necessary exception to the crime. This chapter examines the reasons why the traditional wisdom is that a generally agreed definition on terrorism as an international crime is lacking. It argues instead that many factors point to the existence of such agreed definition, at least for terrorism in time of peace. The legal ingredients of terrorism as an international crime are therefore analyzed.
Chapter
15. International criminal law
This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.
Chapter
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.
Chapter
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.
Chapter
15. International criminal law
This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.
Chapter
2. Principles of State jurisdiction
This chapter discusses the basic principles of national jurisdiction to prosecute crimes. Despite the growth of international courts and tribunals, no international criminal court has jurisdiction over all international crimes wherever committed. Thus, in practice, international criminal law will largely rely on prosecutions conducted before national courts, making the extent of national criminal jurisdiction a topic of vital importance. The chapter begins by introducing the different forms of jurisdiction and some basic distinctions. It then provides an overview of the theory of national prescriptive jurisdiction based on ‘links’ or ‘nexus’ between the crime and the prescribing State; outlines the principle of ‘universal jurisdiction to prescribe’ and its controversies; and looks to treaty-based systems of ‘quasi-universal’ jurisdiction over international crimes.
Chapter
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.
Chapter
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.
Chapter
11. Other modes of criminal liability and inchoate crimes
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses some of the most important modes of criminal liability and inchoate offences in international criminal law (ICL). Some are well known in national jurisdictions (such as aiding and abetting) and some are more unique to ICL (such as planning or ordering). ICL also covers a limited number of inchoate crimes (preparatory criminal acts that are punishable regardless of whether the crimes are actually committed).
Chapter
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.
Chapter
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.
Chapter
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.
Chapter
7. Torture and aggression
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses two classes of international crimes — torture and aggression — that have repeatedly drawn international attention and condemnation but have not been adjudicated as stand-alone crimes. It begins by considering the different reasons for the treatment — in practice, if not always in theory — of these two crimes as outside the ‘core crimes’ involving the most heinous offences: war crimes, crimes against humanity, and genocide. This is followed by discussions of torture as a discrete crime; torture as a war crime and a crime against humanity; the emergence of the notion of the crime of aggression and its falling into lethargy; the elements of the crime of aggression; the need to disentangle criminal liability of individuals from state responsibility; and whether conspiracy to wage aggression is criminalized.
Chapter
9. Perpetration: in particular joint and indirect perpetration
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.
Chapter
17. Legal impediments to the exercise of criminal jurisdiction
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the obstacles that may hamper or jeopardize criminal proceedings for international crimes. These include rules granting amnesty for broad categories of crimes; statutes of limitation; the prohibition of double jeopardy (the principle of ne bis idem), whereby a person may not be brought to trial twice for the same offence; and international rules on personal immunities.
Chapter
2. The principle of legality
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of how national legal systems tend to embrace and ground their criminal law lies on, with respecct to either the doctrine of substantive justice or that of strict legality. It then covers the principle of legality in civil law and in common law countries; the principle of legality in international criminal law; articulations of the principle of legality; and the principle of legality of penalties.
Chapter
4. War crimes
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of the notion of war crimes. It then covers the criminalization of the serious violation of a rule of international humanitarian law; the objective and subjective elements of war crimes; the nexus with armed conflict; and war crimes in the International Criminal Court Statute.
Chapter
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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