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Cover Cassese's International Criminal Law

10. Omission liability and superior responsibility  

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.

Chapter

Cover Sentencing and Punishment

3. Determining ‘just deserts’  

Seriousness and proportionality are key concepts in the ‘just deserts’ approach to sentencing which was endorsed by the Criminal Justice Act 1991. This chapter analyses the extent to which this framework based on retributivist principles has been undermined by subsequent changes in legislation. It examines law and guidance on constructing seriousness, particularly in relation to harm and culpability, and on determining a commensurate sentence. Throughout it refers to the Sentencing Code (referring to the Sentencing Act 2020 when we are explaining how changes occurred) and illustrates issues by using examples from recent guidelines, focusing discussion on custodial sentencing. Finally, it discusses criticisms of modern retributivism from a range of standpoints, including Marxian perspectives.

Chapter

Cover Cassese's International Criminal Law

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

Cover Criminal Law Concentrate

3. Mens rea  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter reviews the mens rea elements of criminal offence. Mens rea means guilty mind, but the term is better thought of as the fault element of the offence. The role of mens rea is to attribute fault or blameworthiness (also called culpability) to the actus reus. The main types of mens rea are intention, recklessness, and negligence. Issues may arise when the mens rea and actus reus do not coincide in time. The doctrine of transferred malice allows mens rea to be transferred from the intended victim to the unintended victim, in certain situations.

Chapter

Cover Criminal Law

1. An Introduction To Criminal Law  

This chapter begins by addressing the question: what is a crime? Most modern definitions fall into two categories, the moral and the procedural. Moral definitions are based on the claim that there is or should be an intrinsic quality shared by all acts criminalized by the state. Procedural definitions argue that crimes are such because criminal law recognizes public wrongs as violations of rights or duties owed to the whole community. The chapter covers the role of criminal law; the statistics of criminal behaviour; the ‘principles’ of criminal law; proposals for a Criminal Code; conduct that should be criminalized; culpability; the victim in criminal law; the criminal process; criminal law and the Human Rights Act 1998; critical criminal law; feminist legal thought; punishment; and sentencing.

Chapter

Cover Sentencing and Punishment

3. Determining ‘just deserts’  

Seriousness and proportionality are key concepts in the ‘just deserts’ approach to sentencing which was endorsed by the Criminal Justice Act 1991. This chapter analyses the extent to which this sentencing framework with retributivist principles has been undermined by subsequent changes in legislation, notably the Criminal Justice Act 2003, and by amendments to that Act. It examines law and guidance on constructing seriousness, particularly in relation to harm and culpability, and on determining a commensurate sentence. It illustrates issues by using examples from recent guidelines and focuses discussion on examples from custodial sentencing. Finally, the chapter discusses criticisms of modern retributivism.