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Oxford Law Citator
Contents
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Preliminary Material
Preface
Contents
Table of Cases
International Courts and Tribunals
European Commission of Human Rights
European Court of Human Rights
Extraordinary Chambers in the Courts of Cambodia
Human Rights Committee
Inter-American Court of Human Rights
International Court of Justice
International Criminal Court
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the Former Yugoslavia
International Military Tribunal, Nuremberg
International Military Tribunal for the Far East
Iraqi Special Tribunal
Permanent Court of International Justice
Permanent Military Tribunals
Special Court for Sierra Leone
Special Panels of East Timor
Special Tribunal for Lebanon
US Nuremberg Military Tribunals
National Courts
Argentina
Australia
Bosnia and Herzegovina
Canada
Chile
China
Colombia
France
Germany
India
Israel
Italy
Netherlands
New Zealand
Peru
Poland
Spain
United Kingdom
United States
Table of Legislation
International Legislation
National Legislation
Argentina
Australia
Austria
Bangladesh
Cambodia
Canada
Chile
China
Colombia
Egypt
France
Germany
India
Iraq
Ireland
Israel
Italy
Korea
Kosovo
Lebanon
Nigeria
Peru
Poland
Portugal
Russia
Rwanda
Sierra Leone
Spain
Sweden
Switzerland
Turkey
United Kingdom
United States
Private Drafts
List of Abbreviations
List of Figures
Main Text
Ch.I Historical Overview: The Road from Early Prosecutions of War Crimes to the Creation of the ICC
A The Versailles Peace Treaty and Historical Precedents
B The First Ad Hoc Tribunals: Nuremberg and Tokyo
(1) The trials against the major war criminals of Germany and Japan
(2) Post-Nuremberg WWII trials
(3) The Nuremberg Principles as the immediate consequence of the Nuremberg Trials
C The Development of International Criminal Law Prior to the Establishment of the UN Ad Hoc Tribunals
(1) The Genocide Convention
(2) The Hague and Geneva laws
(3) The Draft Codes of the International Law Commission
(4) Private initiatives
D The UN Ad Hoc Tribunals
(1) The International Criminal Tribunal for the Former Yugoslavia
(2) The International Criminal Tribunal for Rwanda
E The International Criminal Court
(1) Negotiating history
(2) The Rome Statute, the structure of the Court and other legal instruments
(a) General
(b) The judges
(c) The Office of the Prosecutor (OTP)
(d) Registry, and Assembly of States Parties
(e) Legal sources
(f) The first Review Conference in Kampala
(3) Current investigations
(a) Situations and triggers
(b) From situations to cases
F The ‘Mixed’ Tribunals
(1) The legal bases
(a) Kosovo
(b) East Timor
(c) Sierra Leone
(d) Cambodia
(e) Iraq
(f) Lebanon
(g) Bangladesh
(2) Comparative analysis
Ch.II Concept, Function, and Sources of International Criminal Law
A Concept, Meaning, and Object of International Criminal Law
B Punitive Power, Overall Function, and Purposes of Punishment
(1) The punitive power (ius puniendi) of the international community
(2) The overall function of (international) criminal law
(a) The theoretical starting point: protection of ‘Rechtsgüter’ and prevention of harm
(b) The transfer to international criminal law
(3) On the purposes of punishment stricto sensu
(a) Traditional theories
(b) International criminal law
C Sources and Methods of Interpretation
Ch.III Imputation and General Structure of Crime in International Criminal Law
A A General Part of International Criminal Law
B Imputation in International Criminal Law
(1) Individuals acting in a collective context
(2) Individual responsibility
C Fundamental Principles: Legality, Culpability, and Fairness
(1) Legality
(2) Culpability
(3) Fairness
D The Structure of Crime
(1) Preliminary remarks: the nature of crime and the question of ‘the system’
(2) The structure of crime in ICL
Ch.IV Individual Criminal Responsibility
A The Recognition of Individual Criminal Responsibility in International Criminal Law
B Historical Case Law on Individual Criminal Responsibility in ICL
(1) The Nuremberg, Tokyo, and UNWCC trials
(a) The applicable law
(b) Objective elements of individual responsibility (actus reus)
(i) Causal connection?
(ii) Participation/complicity
(iii) Expansion of attribution
(1) Command responsibility
(2) Conspiracy
(3) Membership in a criminal organization
(c) Subjective elements of individual responsibility (mens rea)
(2) Selected judgments on Nazi crimes, and other state-sponsored criminality
(a) Objective elements of responsibility (actus reus)
(i) Participation, in particular perpetration by virtue of an organization
(ii) Others
(b) Subjective elements of responsibility (mens rea)
C The Modern Law on Individual Criminal Responsibility
(1) Preliminary remarks
(2) Article 7(1) ICTYS and Article 6(1) ICTRS
(a) ‘Direct’ commission: physical and co-perpetration
(b) ‘Indirect’ commission I: joint criminal enterprise
(c) ‘Indirect’ commission II: aiding and abetting
(d) Incitement to commit genocide
(e) Delimitation of co-perpetration and aiding and abetting
(3) Mixed tribunals
(a) The applicable law
(b) The case law
(i) The Special Panels of East Timor
(ii) The Special Court for Sierra Leone
(iii) The Extraordinary Chambers in the Courts of Cambodia
(iv) The Iraqi Special Tribunal
(v) The Special Tribunal for Lebanon
(4) Article 25 ICC Statute as the central provision on individual criminal responsibility in modern ICL
(a) Preliminary remarks: the law of participation and Article 25(3)
(b) Detailed analysis of paragraph 3
(i) Forms of perpetration (subparagraph (a))
(1) Direct perpetration
(2) Co-perpetration
(3) Perpetration through another person, in particular organizational control (‘Organisationsherrschaft’)
(4) Special consideration: joint criminal enterprise (JCE)
(ii) Complicity I: encouragement (subparagraph (b))
(iii) Complicity II: assistance (subparagraph (c))
(iv) Responsibility extension I: other contribution to group crime (subparagraph (d))
(v) Responsibility extension II: incitement to commit genocide (subparagraph (e))
(vi) Participation and the crime of aggression (paragraph 3bis)
(vii) Complicity after commission
(viii) Special consideration: JCE III and fundamental principles of criminal law
(c) Conclusions and perspectives
Ch.V Omission, in Particular Command Responsibility
A Rationale, Concept, and Forms of Omission
B Is There General Omission Liability (Commission Par Omission) in ICL?
(1) The sources: written and case law
(2) Commission by omission as a rule of customary law or a general principle?
(3) Conclusion
C Omission Liability Proper: Command Responsibility
(1) Preliminary remarks
(2) Article 7(3) ICTYS and Article 6(3) ICTRS
(3) Mixed tribunals
(4) Article 28 ICC Statute
(a) Preliminary remarks
(b) Objective requirements of superior responsibility
(i) The status of the superior
(ii) Effective ‘command and control’ or ‘authority and control’
(iii) Crimes as a ‘result’ of the superior’s failure to exercise control properly
(iv) ‘Necessary and reasonable’ countermeasures ‘within his or her power’
(c) Subjective requirements of superior responsibility
(i) Military and non-military superior: positive knowledge
(ii) Military superior: ‘should have known’
(iii) Non-military superior: ‘consciously disregarded information which clearly indicated … ’
(d) Special issues
(i) Command responsibility and ordering
(ii) Command responsibility and JCE
(iii) Command responsibility and the principle of culpability
(iv) Command responsibility in non-international armed conflicts
Ch.VI Attempt as a Special Form of Individual Criminal Responsibility
A General Considerations
(1) Why punish attempt?
(2) History of attempt in international criminal law
(3) Definition (Article 25(3)(f) ICC Statute)
(4) Crimes subject to attempt liability in ICL
B The Essential Elements of Attempt in Comparative Law as a Basis for ICL
(1) Incompletion of the offence
(2) Subjective requirement: intent to commit the crime (intent or fault element)
(3) Objective requirement (conduct element)
(a) Comparative law: common and civil law approaches
(b) Conclusion: no ‘magic formula’ to determine the commencement of attempt
C The Correct Approach to the ICC Statute’s ‘Commencement of Execution’: a Formula of Approximation
D Application to ICL Core Crimes (Articles 5–8 ICC Statute)
(1) Genocide (Article 6), including incitement and general (secondary) participation
(2) Crimes against humanity (Article 7)
(3) War crimes (Article 8)
(4) Crime of aggression (Article 8bis)
E Abandonment
F Conclusion
Ch.VII The Subjective Requirements of International Crimes
A The General Mental Requirement: Intent and Knowledge (Article 30 ICC Statute)
(1) Preliminary remarks and terminological clarifications
(2) The subject matter or objects of reference of Article 30 in general
(a) The general object of reference of the mental element: material elements
(b) The specific objects of reference of the mental element: ‘conduct’, ‘consequence’, and ‘circumstance’
(3) The standard or degrees of the mental element
(a) With regard to ‘conduct’
(b) With regard to ‘consequence’
(c) With regard to ‘circumstance’
(d) Are lower standards than ‘intent’ and ‘knowledge’ sufficient?
(4) The object of reference of the mental element with regard to the specific crimes (Articles 6–8 ICC Statute)
(a) Genocide (Article 6)
(b) Crimes against humanity (Article 7)
(c) War crimes (Article 8)
(5) The object of reference of the mental element with regard to the forms of participation (Article 25 ICC Statute)
(6) The mental element and normative elements of the offence
B Additional or Different Subjective Requirements Pursuant to the ‘Unless Otherwise Provided’ Formula
(1) Preliminary remarks
(2) Genocide (Article 6 ICC Statute)
(a) ‘Intent to destroy’
(b) Underlying acts of genocide
(3) Crimes against humanity (Article 7 ICC Statute)
(4) War crimes (Article 8 ICC Statute)
(5) Modes of participation (Article 25(3) ICC Statute)
C Conclusion
Ch.VIII Grounds Excluding Responsibility (‘Defences’)
A Introduction
B Classification of Defences
(1) Substantive and procedural defences
(2) Full and partial defences
(3) Justifications and excuses
(4) Failure of proof defences and alibi
(5) Hierarchy of defences
C Substantive Defences
(1) Preliminary conceptual questions
(a) Substantive defences in ICL
(b) Relevant point of time
(c) Standard and burden of proof
(d) Application of defences by the ICC
(2) Mental disease or defect (Article 31(1)(a) ICC Statute)
(a) The insanity defence in national criminal law
(b) The insanity defence in the international jurisprudence
(c) The approach of the ICC Statute
(d) Obstacles to proof and the role of expert witnesses
(3) Intoxication (Article 31(1)(b) ICC Statute)
(a) The intoxication defence in national criminal law
(b) The intoxication defence in the international jurisprudence
(c) The approach of the ICC Statute
(4) Self-defence and defence of others (Article 31(1)(c) ICC Statute)
(a) Self-defence in national criminal law
(b) The differentiation between state and private self-defence
(c) The applicability of private self-defence in ICL
(d) Self-defence in the international jurisprudence
(e) The approach of the ICC Statute
(5) Duress and necessity (Article 31(1)(d) ICC Statute)
(a) Duress/necessity in national criminal law
(b) Duress/necessity in the international jurisprudence
(i) Nuremberg jurisprudence
(ii) Post-Nuremberg jurisprudence
(iii) Recent international jurisprudence with a special focus on the Erdemović case
(c) The approach of the ICC Statute
(i) Threat of death or serious bodily harm
(ii) Necessary and reasonable reaction
(iii) Subjective requirements
(iv) Special considerations applicable to the killing of innocent civilians
(6) Mistake of fact and mistake of law
(a) Mistake in national criminal law
(b) Mistake in the international jurisprudence
(c) The approach of the ICC Statute
(i) Mistakes concerning the elements of an offence
(ii) Mistakes concerning defences
(iii) Critical assessment of the error iuris rule
(7) Superior order
(a) Superior order in the international jurisprudence
(b) The approach of the ICC Statute
(8) Other defences
(a) Consent of the victim
(b) Military necessity
(c) Reprisals
(d) Tu-quoque principle
D Procedural Defences
(1) Preliminary conceptual questions
(2) The ne bis in idem principle
(a) National ne bis in idem
(b) Transnational ne bis in idem
(c) International ne bis in idem
(3) Immunities
(a) General remarks
(b) Types of immunities
(c) Immunity as a procedural defence
(d) Immunity for international crimes?
(i) Vertical immunity (vis-à-vis international criminal tribunals)
(ii) Horizontal immunity (interstate level)
(4) Amnesties, pardons, and other waivers of punishment
(a) The need for a proportionality test
(b) Consequences for amnesties: two approaches
(i) Blanket amnesties: strict approach
(ii) Conditional amnesty: flexible approach
(c) Consequences for international tribunals
(5) Other procedural defences
(a) Statute of limitations
(b) Exclusion of jurisdiction over juveniles
(c) Incompetence/unfitness to stand trial
(d) Abuse of process
Further Material
General Literature
Index of Names
Index of Subjects
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Table of Cases
From:
Treatise on International Criminal Law: Volume 1: Foundations and General Part
Kai Ambos
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
24 January 2013
ISBN:
9780199657926
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