March 15, 2019 Forthcoming
Reference - 246 Pages
ISBN 9781138098916 - CAT# Y336293
Series: Routledge Research in International Law
In the course of the 20th century, major offences committed by individuals have been subject to progressive systematisation in the framework of international criminal law. Proposals developed within the context of the League of Nations coordinated individual liability and State responsibility. By contrast, international law as codified after World War II in the framework of the United Nations embodies a neat divide between individual criminal liability and State aggravated responsibility. However, conduct of State organs and agents generates dual liability. Through a critical analysis of key international rules, the book assesses whether the divisive approach to individual and State responsibility is normatively consistent. Contemporary situations, such as the humanitarian crises in Syria and Libya, 9/11 and the Iraq wars, demonstrate that the matter still gives rise to controversy: a set of systemic problems emerge. The research focuses on the substantive elements of major offences, notably agression, genocide, core war crimes, core crimes against humanity and terrorism, as well as relevant procedural implications.
The book is a useful resource for practitioners, policymakers, academics, students, researchers and anyone interested in international law and politics.
Chapter 1 – From monism to dualism
1.1 Monism: coordinating individual and State responsibility prior to World War II
1.1.1 The dawn of criminal responsibility in international law: proposals for a universal criminal code (1860-1919)
1.1.2. Inter-war coordination (1920-1939)
126.96.36.199 Triggering initiatives within the League of Nations
188.8.131.52 Establishing the Fundamental Principles of an International Legal Code for the Repression of International Crimes
184.108.40.206 Individual initiatives for a comprehensive International Criminal Code
220.127.116.11 The ICLA’s Draft Statute for a Criminal Chamber of the PCIJ and the Global Repressive Code
1.2 Dualism: disjoining individual and State responsibility after World War II
1.2.1 Between coordination and disjunction (1940-1960)
18.104.22.168 Peace through law? UN procedures and the critical role of the Security Council
22.214.171.124 The IMT, IMTFE, Nuremberg Principles and Draft Code of Offences against the Peace and Security of Mankind
126.96.36.199 The Genocide Convention and the proposals for an international criminal jurisdiction
1.2.2 Defining aggression, State crimes and underlying concepts (1960-1980)
188.8.131.52 Non-institutional initiatives
184.108.40.206 Peremptory norms (jus cogens), erga omnes obligations and State crimes
220.127.116.11 State crimes under Article 19 of the ILC’s 1980 Draft Articles on State Responsibility
1.2.3 Codifying dualism (1980-2001)
18.104.22.168 The ICLA’s Project for a comprehensive International Criminal Code
22.214.171.124 Achieving the Draft Code of Crimes against the Peace and Security of Mankind
126.96.36.199 Ad hoc international and hybrid tribunals
188.8.131.52 Achieving the Statute of the International Criminal Court
184.108.40.206 From ‘State crimes’ to ‘serious breaches of peremptory norms’ in the ILC’s Draft Articles on State Responsibility
1.2.4 Genocide, aggression and terrorism still in search of identity (2001-2018)
220.127.116.11 Genocide in the jurisprudence of the ICJ: the ‘second death’ of State crimes?
18.104.22.168 Aggression and terrorism: developments in the ICC Statute and beyond
Chapter 2 – Breach of a primary norm: offence
2.1 Core substantive elements of the offence
2.1.1 The obligations breached by State aggravated offences
22.214.171.124 Serious breaches of peremptory norms (jus cogens): 2001 DASR 40
126.96.36.199 Linking jus cogens and erga omnes obligations: VCLT and VCLTIO Article 53 and 2001 DASR 40, 42, 48 and 54
188.8.131.52 Serious breaches of erga omnes obligations: 1996 DASR 19 and 40
184.108.40.206 Fundamental obligations
220.127.116.11 Jus cogens, erga omnes obligations and State responsibility in international case law
2.1.2 Individual criminal responsibility, jus cogens and erga omnes obligations
18.104.22.168 From criminals to crimes: erga omnes responsibility in the ICC Statute
22.214.171.124 Erga omnes responsibility in the case law
2.1.3 State aggravated responsibility, individual criminal responsibility, jus cogens and (non-severable) erga omnes obligations
126.96.36.199 (Non-severable) erga omnes obligations as jus cogens
188.8.131.52 State aggravated offences and individual criminal offences as breaches of (non-severable) erga omnes obligations
2.2 Attribution of responsibility
2.2.1 Dual conduct
184.108.40.206 Attributing aggravated responsibility to the State based on conduct of its organs or agents: absolute identity?
220.127.116.11 Individual responsibility for international crimes: mens rea
2.2.2 Attributing individual criminal conduct to the State
18.104.22.168 Individual mens rea versus State objective responsibility?
22.214.171.124 Individual and State mens rea?
126.96.36.199 Assessing State fault on a case-by-case basis under the ILC’s DASR
2.3 Dual erga omnes offences
188.8.131.52 State conduct as a basis for individual conduct (and vice-versa)
184.108.40.206 Leadership and mens rea
220.127.116.11 Self-Defence as a dual excuse
2.3.2 Core war crimes
18.104.22.168 Individual conduct as a basis for collective responsibility
22.214.171.124 Systemically proving individual mens rea
2.3.3 Core crimes against humanity
126.96.36.199 Systemic conduct
188.8.131.52 Systemically proving individual mens rea
184.108.40.206 Individual genocidal conduct without State responsibility?
220.127.116.11 Collective specific intent as a basis for individual intent (and vice-versa)
18.104.22.168 Political or ideological purpose as a distinguishing material element
22.214.171.124 Specific intent and collective responsibility
Chapter 3 – Secondary norms: dispute settlement, sanctions and enforcement
3.1 Secondary and tertiary implications of dual erga omnes offences
3.1.1 State aggravated responsibility
126.96.36.199 Institutionalised and non-institutionalised (compulsory) universal invocation of responsibility: 2001 DASR 41(1), 42(b), 48(1)(b) and 59
188.8.131.52 Non-punitive erga omnes sanctions? 2001 DASR 28-39 and UN Charter Articles 39-42
184.108.40.206 Institutionalised and non-institutionalised universal enforcement: 2001 DASR 41(1), 54 and 59
220.127.116.11 Rejecting compulsory jurisdiction
18.104.22.168 Punitive erga omnes sanctions? 1996 DASR 41-46 and 52
22.214.171.124 Universal punitive enforcement? 1996 DASR 53
3.1.2 Individual criminal responsibility
126.96.36.199 (Compulsory) universal jurisdiction and complementary international adjudication
188.8.131.52 (Erga omnes) imprisonment, fines and forfeiture
184.108.40.206 Domestic enforcement
3.2 Procedural intersections
3.2.1 Systemic patterns and inter-temporality
3.2.2 The limits of UN procedures
220.127.116.11 Chapter VII procedures: political and enforcement action for State aggravated responsibility?
18.104.22.168 The limited role of consensual jurisdiction, particularly the International Court of Justice
3.2.2 Decentralised State action under general international law
3.2.3 A controversial practice
22.214.171.124 Bosnian genocide
126.96.36.199 Humanitarian crises in Kosovo, Libya and Syria
188.8.131.52 Iraq wars
184.108.40.206 Counter-terrorism in Afghanistan, Syria and Iraq
3.2.4 State and individual immunities as a bar to domestic jurisdiction?
220.127.116.11 State and individual immunities?
3.2.5 Ad hoc criminal jurisdictions: victors’ justice?
18.104.22.168 Power and organic dependence
22.214.171.124 Ex post jurisdictions
3.2.6 The independence of the International Criminal Court
126.96.36.199 Permanency as a guarantee of independence?
188.8.131.52 The UN Security Council and the International Criminal Court
184.108.40.206 Jurisdictional autonomy over aggression?