Guénaël Mettraux
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559329
- eISBN:
- 9780191705304
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559329.001.0001
- Subject:
- Law, Criminal Law and Criminology, Public International Law
The book studies the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military ...
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The book studies the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military commander, a civilian leader or the leader of a terrorist, paramilitary, or rebel group could be held criminally responsible in relation to crimes committed by subordinates even where he has taken no direct or personal part in the commission of these crimes. The basis of this type of liability lies in a grave and culpable failure on the part of the superior to fulfil his duties to prevent or punish crimes of subordinates. Though it first developed in the international arena, the doctrine of superior responsibility has now spread into many domestic jurisdictions, thus offering judicial and prosecutorial authorities a ready-made instrument to hold to account the leaders of men who knew of the crimes of their subordinates and failed to respond adequately to prevent or punish those crimes. This book provides a dissection of the doctrine of superior responsibility, the scope of its application, its elements as well as the evidential difficulties involved in establishing the criminal responsibility of a superior in the context of a criminal prosecution.Less
The book studies the law of command or superior responsibility under international law. Born in the aftermath of the Second World War, the doctrine of superior responsibility provides that a military commander, a civilian leader or the leader of a terrorist, paramilitary, or rebel group could be held criminally responsible in relation to crimes committed by subordinates even where he has taken no direct or personal part in the commission of these crimes. The basis of this type of liability lies in a grave and culpable failure on the part of the superior to fulfil his duties to prevent or punish crimes of subordinates. Though it first developed in the international arena, the doctrine of superior responsibility has now spread into many domestic jurisdictions, thus offering judicial and prosecutorial authorities a ready-made instrument to hold to account the leaders of men who knew of the crimes of their subordinates and failed to respond adequately to prevent or punish those crimes. This book provides a dissection of the doctrine of superior responsibility, the scope of its application, its elements as well as the evidential difficulties involved in establishing the criminal responsibility of a superior in the context of a criminal prosecution.
Guenael Mettraux
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559329
- eISBN:
- 9780191705304
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559329.003.0007
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter deals generally with the elements that make up the doctrine of superior responsibility.
This chapter deals generally with the elements that make up the doctrine of superior responsibility.
Elies van Sliedregt
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199573417
- eISBN:
- 9780191728822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573417.003.0014
- Subject:
- Law, Public International Law, Criminal Law and Criminology
ICTY case law has been instrumental in developing the concept of command responsibility. In creating a basic model of liability, firmly entrenched in the three basic elements identified in the ...
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ICTY case law has been instrumental in developing the concept of command responsibility. In creating a basic model of liability, firmly entrenched in the three basic elements identified in the Čelebići case, the Tribunal has done international criminal law a service. This is not to say that ICTY case law has no flaws and that other (international and national) courts should follow its law uncritically. Command responsibility is one of the most complex liability theories in international criminal law. Article 7(3) of the ICTY Statute, and the case law that ensues from does not fully do justice to the complexities of this liability theory. As a result, its nature remains ambiguous to date.Less
ICTY case law has been instrumental in developing the concept of command responsibility. In creating a basic model of liability, firmly entrenched in the three basic elements identified in the Čelebići case, the Tribunal has done international criminal law a service. This is not to say that ICTY case law has no flaws and that other (international and national) courts should follow its law uncritically. Command responsibility is one of the most complex liability theories in international criminal law. Article 7(3) of the ICTY Statute, and the case law that ensues from does not fully do justice to the complexities of this liability theory. As a result, its nature remains ambiguous to date.
Guenael Mettraux
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559329
- eISBN:
- 9780191705304
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559329.003.0003
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter touches upon subsequent development, in particular the adoption of a definition of that doctrine in the Statute of the International Criminal Court which differs in some significant ...
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This chapter touches upon subsequent development, in particular the adoption of a definition of that doctrine in the Statute of the International Criminal Court which differs in some significant fashion from existing customary international law.Less
This chapter touches upon subsequent development, in particular the adoption of a definition of that doctrine in the Statute of the International Criminal Court which differs in some significant fashion from existing customary international law.
Elies van Sliedregt
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199560363
- eISBN:
- 9780191738623
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199560363.001.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This book examines the concept of individual criminal responsibility for serious violations of international law, i.e., aggression, genocide, crimes against humanity, and war crimes. Such crimes are ...
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This book examines the concept of individual criminal responsibility for serious violations of international law, i.e., aggression, genocide, crimes against humanity, and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed ‘intellectual perpetrators’. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable. By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defence of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.Less
This book examines the concept of individual criminal responsibility for serious violations of international law, i.e., aggression, genocide, crimes against humanity, and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed ‘intellectual perpetrators’. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable. By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defence of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.
Guenael Mettraux
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559329
- eISBN:
- 9780191705304
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559329.003.0001
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter discusses the birth and development of the doctrine of superior responsibility and the part which war crimes tribunals have played in developing and defining that doctrine.
This chapter discusses the birth and development of the doctrine of superior responsibility and the part which war crimes tribunals have played in developing and defining that doctrine.
Guenael Mettraux
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559329
- eISBN:
- 9780191705304
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559329.003.0005
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter discusses the scope of application of the doctrine of superior responsibility, in particular the question of whether it applies in the context of both international as well as internal ...
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This chapter discusses the scope of application of the doctrine of superior responsibility, in particular the question of whether it applies in the context of both international as well as internal armed conflict and whether that doctrine applies, as a matter of international law, to situations where no armed conflict exists.Less
This chapter discusses the scope of application of the doctrine of superior responsibility, in particular the question of whether it applies in the context of both international as well as internal armed conflict and whether that doctrine applies, as a matter of international law, to situations where no armed conflict exists.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the ...
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This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.Less
This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.
Clint Williamson
- Published in print:
- 2014
- Published Online:
- January 2014
- ISBN:
- 9780199795840
- eISBN:
- 9780199345274
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199795840.003.0005
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This chapter presents an account of Milošević indictment. Under the theory of superior responsibility, Milošević was charged in his de jure role as president of the FRY and Supreme Commander of the ...
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This chapter presents an account of Milošević indictment. Under the theory of superior responsibility, Milošević was charged in his de jure role as president of the FRY and Supreme Commander of the VJ, and as the one in de facto control of Serbia's governmental structures.Less
This chapter presents an account of Milošević indictment. Under the theory of superior responsibility, Milošević was charged in his de jure role as president of the FRY and Supreme Commander of the VJ, and as the one in de facto control of Serbia's governmental structures.
Beth Van Schaack
- Published in print:
- 2018
- Published Online:
- January 2018
- ISBN:
- 9780190272654
- eISBN:
- 9780190272685
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190272654.003.0019
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This chapter identifies three unfortunate gaps in the United States’ federal penal code: The United States lacks a crimes against humanity statute, the war crimes statute has a limited jurisdictional ...
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This chapter identifies three unfortunate gaps in the United States’ federal penal code: The United States lacks a crimes against humanity statute, the war crimes statute has a limited jurisdictional reach and does not conform to US obligations under the Geneva Conventions, and the code lacks express mention of superior responsibility. These gaps significantly hinder the reach of the United States’ prosecutorial authorities and have led to instances of impunity, and incomplete accountability, where perpetrators within US jurisdiction cannot be prosecuted for their substantive crimes and must be dealt with through immigration and other remedies. The chapter then evaluates various proposed amendments to Title 18, drawing upon previous bills, international criminal law, and other federal statutes. It closes by arguing that discrete statutory amendments would enable the United States to exercise leadership in atrocities prevention and response without increasing the risk that US personnel will be subjected to litigation overseas.Less
This chapter identifies three unfortunate gaps in the United States’ federal penal code: The United States lacks a crimes against humanity statute, the war crimes statute has a limited jurisdictional reach and does not conform to US obligations under the Geneva Conventions, and the code lacks express mention of superior responsibility. These gaps significantly hinder the reach of the United States’ prosecutorial authorities and have led to instances of impunity, and incomplete accountability, where perpetrators within US jurisdiction cannot be prosecuted for their substantive crimes and must be dealt with through immigration and other remedies. The chapter then evaluates various proposed amendments to Title 18, drawing upon previous bills, international criminal law, and other federal statutes. It closes by arguing that discrete statutory amendments would enable the United States to exercise leadership in atrocities prevention and response without increasing the risk that US personnel will be subjected to litigation overseas.
William A. Schabas
- Published in print:
- 2018
- Published Online:
- November 2018
- ISBN:
- 9780198833857
- eISBN:
- 9780191872440
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198833857.003.0011
- Subject:
- Law, Public International Law
The earliest proposals for an international criminal court emerge during the sessions of the Commission on Responsibilities. The French insist that it will offer a ‘greater stage’, something that is ...
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The earliest proposals for an international criminal court emerge during the sessions of the Commission on Responsibilities. The French insist that it will offer a ‘greater stage’, something that is necessary if the former German Emperor is to be prosecuted. On this issue, too, the Americans are totally opposed. The Commission also debates whether or not the Kaiser may be able to invoke immunity as a Head of State. It also considers a notion of guilt by abstention, whereby a leader may be tried for the crimes of subordinates to the extent that he or she failed to intervene to prevent the punishable acts, a doctrine known today as ‘superior responsibility’.Less
The earliest proposals for an international criminal court emerge during the sessions of the Commission on Responsibilities. The French insist that it will offer a ‘greater stage’, something that is necessary if the former German Emperor is to be prosecuted. On this issue, too, the Americans are totally opposed. The Commission also debates whether or not the Kaiser may be able to invoke immunity as a Head of State. It also considers a notion of guilt by abstention, whereby a leader may be tried for the crimes of subordinates to the extent that he or she failed to intervene to prevent the punishable acts, a doctrine known today as ‘superior responsibility’.
Geert-Jan Alexander Knoops
- Published in print:
- 2016
- Published Online:
- November 2016
- ISBN:
- 9780190647759
- eISBN:
- 9780190647766
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190647759.003.0027
- Subject:
- Law, Public International Law
This Introductory Note focusses on the ICTR appeals judgments that were issued in 2014, as well as the status of the ICTR cases that have been referred to Rwanda for trial. In 2014, appeals judgments ...
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This Introductory Note focusses on the ICTR appeals judgments that were issued in 2014, as well as the status of the ICTR cases that have been referred to Rwanda for trial. In 2014, appeals judgments were reached in cases against eight accused. Most accused had successfully raised some grounds of appeal. Two accused were acquitted, while the sentences of two accused were reduced. The accused’s alleged superior responsibility was an issue that was relatively frequently scrutinized by the Appeals Chamber, in which the requisite “effective control” of the superiors over the subordinates turned out to be a pertinent matter. The second part of this Introductory Note focusses on cases that have been referred to Rwanda for trial. These cases are increasingly pressurized due to fair trial concerns in Rwanda. The process of referral to Rwanda, as well as the changing views of the referral chambers, will be discussed.Less
This Introductory Note focusses on the ICTR appeals judgments that were issued in 2014, as well as the status of the ICTR cases that have been referred to Rwanda for trial. In 2014, appeals judgments were reached in cases against eight accused. Most accused had successfully raised some grounds of appeal. Two accused were acquitted, while the sentences of two accused were reduced. The accused’s alleged superior responsibility was an issue that was relatively frequently scrutinized by the Appeals Chamber, in which the requisite “effective control” of the superiors over the subordinates turned out to be a pertinent matter. The second part of this Introductory Note focusses on cases that have been referred to Rwanda for trial. These cases are increasingly pressurized due to fair trial concerns in Rwanda. The process of referral to Rwanda, as well as the changing views of the referral chambers, will be discussed.
