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Theories of Co-perpetration in International Criminal Law de Lachezar D. Yanev

Theories of Co-perpetration in International Criminal Law: International Criminal Law Series, cartea 12

Autor Lachezar D. Yanev
en Limba Engleză Hardback – 8 mai 2018
The proper construction of co-perpetration responsibility in international criminal law has become one of the most enduring controversies in this field, with the UN Tribunals endorsing the theory of joint criminal enterprise, and the International Criminal Court adopting the alternative joint control over the crime theory to define this mode of liability. This book seeks to reconcile the ICTY/R’s and ICC’s jurisprudence by providing a definition of co-perpetration that could be uniformly applied in the two justice models that these institutions represent: the ad hoc- and the treaty-based model. An evaluation framework is adopted, pursuant to which the origins, merits and deficiencies of the said competing theories are critically assessed, and a refined legal framework of co-perpetration responsibility is proposed.
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Specificații

ISBN-13: 9789004357495
ISBN-10: 9004357491
Dimensiuni: 155 x 235 mm
Greutate: 1.04 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Criminal Law Series

Cuprins

PrefaceList of AbbreviationsList of CasesList of Legislation1 A First Look at Individual Liability within the Context of Mass Criminality1.1 Introduction 1.2 The Nature of International Crimes: Explaining the Need for a Theory of Joint Liability 1.2.1The Inherent Challenges of Assigning Liability in a Context of Mass Criminality1.2.2The Limits of Traditional Modes of Liability1.3 Theories of Co-perpetration 1.3.1Choosing between Approaches1.3.2jce: A Subjective Approach to Co-perpetration1.3.3Joint Control over the Crime: A Material-objective Approach to Co-perpetration1.4 Book Scope and Structure 1.4.1Joint Principal Liability in the Wake of International Criminal Law1.4.2Co-perpetration Based on jce: Legal Framework and Issues of Controversy1.4.3Co-perpetration Based on Joint Control: Legal Framework and Issues of Controversy1.5 An Evaluation Framework for Co-perpetration Responsibility in International Criminal Law 1.5.1Legal Basis under International Criminal Law1.5.2Effective Legal Tool for Allocating Individual Criminal Responsibility1.5.3Respect for Fundamental Principles of Criminal Justice1.6 Concluding Remarks2 Back to Nuremberg: The Genesis of Joint Liability for International Crimes2.1 Introduction 2.2 ‘Conspiracy’ and ‘Criminal Organizations’: First Approach to Mass War Criminality 2.2.1Introducing the Concepts of Conspiracy and Membership in a Criminal Organization: Bernays’ Prosecutorial Strategy2.2.2Reviewing the Law on Conspiracy and Criminal Membership2.2.3Drafting the imt Charter: The London Negotiations on Conspiracy and Membership in a Criminal Organization2.2.4Reaching a Compromise and the Final Text of the imt Charter2.2.5The imt Judgment: Judicial Definition of Conspiracy and Membership in a Criminal Organization2.2.6The imtfe Judgment: Controversy and an Adherent Approach to Conspiracy2.2.7Preliminary Conclusions2.3 The Notion of ‘Common Design/Purpose’ 2.3.1Article ii(2) ccl – Refining the Modes of Criminal Liability2.3.2The Principal-accessory Distinction in Post-Nuremberg Jurisprudence2.3.3Liability for Acting in Pursuance of a Common Criminal Purpose/Design2.4 Conclusion3 Joint Criminal Enterprise: Doctrinal Framework and Nature3.1 Introduction 3.2 Drafting Modes of Liability into the icty Statute: From Nuremberg to The Hague 3.3 Introducing the Common Purpose Doctrine in the icty Jurisprudence 3.3.1The Tadić Trial Judgement (7 May 1997): Case Facts and Findings3.3.2The Furundžija Trial Judgement (10 December 1998): A New Reading of Common Purpose Liability3.3.3The Tadić Appeal Judgement (15 July 1999): Systemizing Common Purpose Liability3.4 Joint Criminal Enterprise: Theoretical Framework 3.4.1The Objective (Material) Elements3.4.2The Subjective (Mental) Elements3.5 Joint Criminal Enterprise vis-à-vis the Nuremberg-era Notions on Joint Liability 3.5.1jce and the Notions of Conspiracy and Membership in a Criminal Organization3.5.2jce and the Nuremberg-era Common Purpose Theory3.6 Conclusion4 The Pitfalls of Joint Criminal Enterprise Liability4.1 Introduction 4.2 The Customary Status and Nature of jce iii Liability 4.2.1Defining Customary International Law: Theories of Formation4.2.2The icty/R Methodology Affirming the Customary Status of the jce Doctrine: An Appraisal4.2.3jce iii and Customary International Criminal Law4.2.4Evaluating the Customary Status of jce iii4.2.5The Nature of jce iii liability4.3 The Law on jce with No Physical Perpetrators 4.3.1A Dubious Start: Early icty Case Law on jce with No Physical Perpetrators4.3.2Adopting the Notion of Leadership-leveljce4.3.3Linking the Physical Perpetrators to the ‘Leadership-level’jce4.3.4Concluding Remarks4.4 Conclusion5 Co-perpetration Based on Joint Control over the Crime: Doctrinal Framework5.1 Introduction 5.2 Doctrinal and Jurisprudential Origins of the Theory of Co-perpetration Based on Joint Control over the Crime 5.2.1Back to 1963: Roxin’s “Täterschaft Und Tatherrschaft”5.2.2Theicty Stakić Trial Judgment: A Debut for the Joint Control Theory in International Criminal Proceedings5.3 Introducing the Joint Control Theory in the icc Case Law 5.3.1 The Prosecutor v. Lubanga: Case Facts and Early Submissions on Co-perpetration5.3.2The Lubanga Decision on the Confirmation of Charges5.4 Joint Control over the Crime: Theoretical Framework 5.4.1The Objective (Material) Elements5.4.2The Subjective (Mental) Elements5.5 Conclusion6 Rethinking the Theory of Co-perpetration Based on Joint Control over the Crime6.1 Introduction 6.2 Reviewing the Legal Basis for the Joint Control Theory 6.2.1Alleged Basis in Article 25(3) rs6.2.2A Basis under Article 21(1)(b) rs: ‘Principles and Rules of International Law’?6.2.3A Basis under Article 21(1)(c) rs: ‘General Principles of Law’?6.3 Rethinking the Merits of the Theory of Co-perpetration Based on Joint Control 6.3.1The ‘Joint Control’ Criterion: A Theoretical Critique6.3.2The ‘Joint Control’ Criterion in Practice: Much Ado for Nothing?6.4 Conclusion7 Co-perpetration Responsibility in International Criminal Law: Forging a Path Forward7.1 Introduction 7.2 Searching for the Right Formula: The Alternative Views of Two icc Judges 7.2.1Judge Fulford’s Notion of Co-perpetration and ‘Operative Links’7.2.2Judge Van den Wyngaert’s Notion of Co-perpetration and ‘Direct Contributions’7.3 Testing the Theories of jce and Joint Control over the Crime 7.3.1Legal Basis7.3.2Effectiveness7.3.3Fairness7.4 Co-perpetration Responsibility in International Criminal Law: A Single Legal Framework 7.5 ConclusionBibliographyIndex

Notă biografică

Lachezar D. Yanev, Ph.D. (2016, cum laude), Tilburg University, is an Assistant Professor in international criminal law at that university. He has previously worked as an assistant legal officer in Trial Chamber II of the SCSL, and has also interned at the ICTY (Office of the Prosecutor) and the ICC (Office of the Prosecutor). He holds an LL.M. degree in international criminal and human rights law (Utrecht University, 2010, cum laude) and has taught courses in comparative and international criminal law at Tilburg University. His research and publications extend in the field of international criminal law and human rights law.