Complicity in International Criminal Law

Complicity in International Criminal Law

by Marina Aksenova


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This book tackles one of the most contentious aspects of international criminal law - the modes of liability. At the heart of the discussion is the quest for balance between the accused's individual contribution and the collective nature of mass offending. The principle of legality demands that there exists a well-defined link between the crime and the person charged with it. This is so even in the context of international offending, which often implies 'several degrees of separation' between the direct perpetrator and the person who authorises the atrocity. The challenge is to construct that link without jeopardising the interests of justice.This monograph provides the first comprehensive treatment of complicity within the discipline and beyond. Extensive analysis of the pertinent statutes and jurisprudence reveals gaps in interpreting accessorial liability. Simultaneously, the study of complicity becomes a test for the general methods and purposes of international criminal law. The book exposes problems with the sources of law and demonstrates the absence of clearly defined sentencing and policy rationales, which are crucial tools in structuring judicial discretion.Awarded The Paul Guggenheim Prize in International Law 2017!

Product Details

ISBN-13: 9781509900084
Publisher: Hart Publishing
Publication date: 12/15/2016
Series: Studies in International Law Series , #63
Pages: 344
Product dimensions: 6.14(w) x 9.21(h) x 1.00(d)

About the Author

Marina Aksenova is Postdoctoral research fellow at iCourts, Centre for Excellence for International Courts, University of Copenhagen.

Table of Contents

1 Introduction 1

2 Origins of Complicity: The Domestic Law Intake 8

Introduction 8

I The Comparative Method in International Criminal Law 10

A General Principles of Law as a Source of Law and Inspiration 10

B Critique of the Comparative Method 15

C Methodology 19

II Complicity in Domestic Law 23

A Complicity in Germany 23

B Complicity in France 28

C Complicity in England 30

D Complicity in the US 34

E Complicity in Italy 37

F Complicity in Russia 39

G Complicity in India 42

H Complicity in China 44

III Lessons Learned from Comparative Studies 45

A Trends in Domestic Legal Systems: In Search of a Common Dimension 45

B Applicability of the Findings to International Criminal Law 49

Conclusion 52

3 The Evolution of Complicity as a Construction for Dealing with Collective Criminality 53

Introduction 53

I Conspiracy versus Complicity at Nuremberg and Tokyo 56

A Conspiracy as a Method of Dealing with Collective Criminality 56

B The Sentencing Policy 61

II Domestic Law versus International Law during the Subsequent Trials 64

A The British Approach 64

B The US Approach 66

C The French Approach 69

D Corporate Complicity 71

III Defining the Contours of Complicity: The ILC's Contribution 72

IV Historical Trends 76

4 Complicity in the Jurisprudence of the Ad Hoc Tribunals and Hybrid Courts 81

Introduction 81

I Forms of Participation in the Statutes of the Ad Hoc Tribunals and Hybrid Courts 84

A Requirements of Individual Criminal Responsibility 84

B The Scope of Complicity 86

C Committing 89

D Planning 96

E Instigating 98

F Ordering 101

G Aiding and Abetting 103

H Complicity in Genocide 112

II Problems with Building a Coherent Account of Complicity 113

A Fragmentation 114

B Unclear Standard of Causation 117

C Mismatch between Facts, Law and Forms of Liability 124

D Problem with the Sources 128

Conclusion 131

5 Complicity and the Hierarchy of the Participation Modes at the International Criminal Court 133

Introduction 133

I Modes of Participation at the ICC 137

A 'Commits Such a Crime, Whether as an Individual, Jointly with Another or through Another Person…' 140

B 'Orders, Solicits or Induces the Commission… 150

C 'Aids, Abets or Otherwise Assists in its Commission…' 154

D 'In Any Other Way Contributes to the Commission…' 156

II Hierarchy of the Participation Modes 164

A 'Control over Crime' is Not a Basis for Hierarchy 167

B Modes of Responsibility: Distinguished But Not Ranked 170

C The Level of Contribution is Not the Criterion for Differentiating Modes of Responsibility 173

Conclusion 176

6 Complicity in International Criminal Law and Law of State Responsibility: A Comparative Analysis 178

Introduction 178

I Complicity in the Law of State Responsibility 180

A Historical Perspective 180

B Legal Requirements of Complicity 182

II Comparative Analysis of Complicity in International Criminal Law and the Law of State Responsibility 185

A Complicity in Genocide 185

i The Akayesu Case 185

ii The Genocide Case 187

B Complicity in Torture 190

i The Furundtzija Case 190

ii The Binyam Mohamed Case 191

III Treatment of Complicity in Two Areas of Law: Common Trends and Divergences 195

Conclusion 201

7 The Correlation between Complicity and Sentencing 203

Introduction 203

I The Correlation between Complicity and Sentencing 206

A Statutory Sentencing Principles 206

B Case Law 210

II Sentencing Objectives at the Crossroads: Domestic and International Law 221

A Sentencing Objectives in International Criminal Law 221

B Sentencing Objectives in Domestic Law 225

1 Retribution 226

ii Deterrence 227

iii Rehabilitation 228

iv Restorative Justice 228

C The Challenges of Adapting the Sentencing Objectives to International Law 229

III Embracing Judicial Sentencing Discretion in International Criminal Law 234

Conclusion 239

8 Conclusion: The Place of Complicity in International Criminal Law 241

Introduction 241

I The Limitations of International Criminal Law 244

A Conservative versus Progressive 244

B Deviance versus Conformity 245

C Legitimacy through Enforcement versus Legitimacy through Fairness 247

D Individual versus Collective Aspect 248

II Symbolism as an Overarching Aim 249

III Improving the Current Practices of Attaching Liability for Complicity 257

Appendix I National Legislation on Complicity 260

Appendix II The Correlation between the Forms of Liability and Sentencing 280

Bibliography 303

Index 313

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