Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues

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Springer Science & Business Media, Aug 2, 2008 - Law - 456 pages
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1.1 Opening Remarks and Objectives Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law 2 be enforced. This is, perhaps, the most renowned citation from the judgment of the Int- national Military Tribunal at Nuremberg (“IMT”). In the six decades which have passed since the IMT judgment was handed down, the recognition of the c- cept of individual criminal responsibility for core international crimes has been significantly reinforced and developed, particularly since the establishment of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) in the 1990’s and most recently the International Criminal Court (“ICC”). The media has, of course, played a crucial role in increasing awareness of this concept, especially amongst the general populace. Indeed, the concept has, arguably, a much higher profile today, than ever before in its history. However, the concept of individual criminal responsibility for core inter- tional crimes is neither as straightforward nor as single-facetted, as might appear on first glance. While the general principle behind the concept does not generate too many difficulties, it is in its practical application that the more challenging aspects of the concept are brought to the fore. Each of these ‘challenging - pects’ can also be described as a ‘pertinent issue’ of the concept of individual criminal responsibility for core international crimes.
 

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Contents

3714 JCE Scenarios Already Covered by Aiding and Abetting?
242
3715 PrincipalAccomplice Debate
245
3716 Genocide and JCE Category 3
247
3717 Pleading of the JCED In Indictments
248
3718 Significant Level of Participation of the Accused in the JCE
250
3719 The Application of the JCED to the Little Fish
253
37110 The ICC and the JCE Mode of Liability
255
372 Conclusion
258

2422 Custom
32
2423 General Principles of Law Recognised by Civilised Nations
34
2424 Judicial Decisions
35
2425 Teachings of the Most Highly Qualified Publicists
42
243 Sources of International Criminal Law Relevant to Adjudication Before the ICC and the Ad Hoc International Criminal Tribunals
43
2431 ICC
44
2432 Ad Hoc International Criminal Tribunals
47
244 Evaluation of other Potential Sources of International Criminal Law
48
2443 CCL 10
49
2444 Resolutions of the UN General Assembly and UN Security Council
50
2451 Judicial Precedent and the Ad Hoc International Criminal Tribunals and the SCSL
51
2452 Judicial Precedent and the ICC
55
2453 Conclusion
56
252 Definition of Core International Crimes
57
253 Core International Crimes for which a Person can be Individually Criminally Responsible
61
2531 Genocide
62
2532 War Crimes
64
2533 Crimes Against Humanity
72
26 Evolution of Individual Criminal Responsibility for Core International Crimes
85
262 Evolution of the Concept of Individual Criminal Responsibility for Core International Crimes in International Law
86
2621 PreNuremberg and Tokyo
87
2622 Nuremberg and Tokyo up to the 1990s
98
2623 Post Nuremberg and Tokyo
105
2624 ICTY and Beyond
113
2625 Conclusion
123
The Joint Criminal Enterprise Doctrine A monster theory of liability or a legitimate and satisfactory tool in the prosecution of the perpetrators of core...
127
32 Terminology
130
33 History
132
34 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments
136
3411 Tadić Appeals Judgment
137
3412 Application of the Principles Identified in the Tadić Appeals Judgment
148
342 ICTR
163
343 ICC
167
3431 Observations to Article 253d ICC Statute
168
3432 Future Employment of the JCED Before the ICC
177
344 Draft Code of Crimes Against the Peace and Security of Mankind
178
346 Supreme Iraqi Criminal Tribunal
180
35 Distinguishing the JCE Concept from Other Modes of LiabilityCrimes
182
352 Aiding and Abetting
183
353 Conspiracy
184
354 Membership of a Criminal Organisation
188
36 Issues Arising in Relation to the JCED from a Review of the JCED Jurisprudence
193
3611 Significance of Classification
194
3612 Jurisprudence Supporting the Position that JCE Liability is a Form of Principal Liability
198
3613 Jurisprudence Supporting the Position that JCE Liability is a Form of Accomplice Liability
202
3614 Jurisprudence Supporting the Position that JCE Liability is Both a Form of Principal and Accomplice Liability
203
3615 Employment of Terminology
211
362 Genocide and JCE Category 3
212
3621 Case Law
213
3622 Criticism of the Br anin Appeals Decision
216
363 The Pleading of the JCE Mode of Liability in Indictments The Pleading of the JCE Mode of Liability
218
and Rules Arising from the Case Law of the ICTY in Relation to the Form of Indictments
219
3632 Blanket Pleading of All Modes of Responsibility Under Article 71 Icty Statute
221
3633 Revealing the Nature of the Alleged Individual Criminal Responsibility of the Accused in the Prosecutions PreTrial Brief
227
3634 JCE Specifically Charged but not Specified which JCE Category is Being Charged
229
3635 Permissibility of Charging Under Alternative Categories of JCE Liability
233
3636 Concluding Remarks
234
371 Pertinent Issues
235
3712 Undermining the Principle of Individual Criminal Responsibility in Favour of Collective Responsibility
236
3713 Infringement of the Nullum Crimen Sine Lege Principle
238
The Defining Criteria of International Criminal Courts for the Purposes of Lifting State Official Immunity
263
42 Scope Aim and Overview
267
43 Terminology
270
44 Yerodia Case
271
45 Defining Criteria of an International Criminal Judicial Body
273
453 Jurisprudence and Literature on the Defining Criteria of an International Criminal Judicial Body
277
4531 Amicus Curiae Brief of Professor Philippe Sands
278
4532 Amicus Curiae Brief of Professor Diane F Orentlicher
281
4533 SCSL Appeals Chambers Taylor Decision
283
454 Defining Criteria of an International Criminal Judicial Body
284
4542 Legal Basis of an International Criminal Judicial Body
285
4543 An International Criminal Judicial Body may not be Part of the Judiciary of One Single State
317
4545 The Jurisdiction Ratione Materiae and Ratione Personae of the International Criminal Judicial Body Must be International
318
4546 The Decisions of the International Criminal Judicial Body are Binding
320
4548 The Judiciary must not have been Appointed Ad Hoc by the Parties
321
ConcurrentPrimacy or Complementarity Jurisdiction
322
45411 Independent Financing of the International Criminal Judicial Body
323
45412 Fulfilment of the Criteria Associated with Classical International Organisations
324
45414 Intention of the Parties to Establish an International Criminal Judicial Body
326
45415 Designation of a Judicial Body as International
327
45417 Does an International Criminal Judicial Body have to be Permanent ?
328
45419 The International Criminal Judicial Body Shall have Jurisdiction only in Cases in Which the Parties Either in General or by Special Agreement...
330
455 Summary of the Fundamental and Indicative Criteria of an International Criminal Judicial Body
332
46 Analysis of Hybrid Criminal Judicial Bodies
334
4622 Extraordinary Chambers of the Courts of Cambodia
339
4623 Special Panels for Serious Crimes of the District Court of Dili East Timor
341
4624 Regulation 64 Panels of Kosovo
343
4625 War Crimes Chamber of the State Court of Bosnia and Herzeggovina
345
4626 Supreme Iraqi Criminal Tribunal
347
4627 Special Tribunal for Lebanon
350
463 Conclusion
354
48 Conclusion
357
Individual Criminal Responsibility for Terrorism as a Crime against Humanity An Appropriate Expansive Adaptation of the Subject Matter of Core I...
359
52 Clarification
361
Defining the Categories of Criminalisation
363
55 Individual Criminal Responsibility for Certain Manifestations of Terrorism
375
57 Individual Criminal Responsibility for Terrorism as Genocide
376
581 History of the Crime of Terrorism and the ICC Statute
379
5812 1996 Preparatory Committee Session
381
5813 1997 Definition of the Preparatory Committees Working Group
382
5814 1998 Rome Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court
383
5815 End Result
384
with the ICC Statute andor Under General International Law?
385
Perpetrated by Individuals Within the Scope of Article 7 of the ICC Statute
389
Indicia that Acts of Terrorism Fall Outside the Scope of Crimes Against Humanity in General International Law
391
583 Conclusion
392
59 Other Issues Relating to the Prosecution of Terrorism Before the ICC
396
591 Additional Obstacles to the Prosecution of Terrorism before the ICC
397
5912 Obstacle of Complementarity
398
5913 Other Obstacles
399
592 Should Terrorism Fall within the Jurisdiction of the ICC?
400
593 Conclusion
401
510 Appropriate Expansive Adaptation of Core International Crimes?
402
Summary
405
63 Significance of Conclusions
411
Bibliography
413
Jurisprudence
439
Index
453
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