Crimes Against Humanity And The Principles Of Legality: What Could the Potential Offender Expect?

Fanny B.

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Crimes Against Humanity And The Principles Of Legality: What Could the Potential Offender Expect?

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Lecture
Résumé
Sommaire
Extraits

Résumé du document

Les juges ne sont que la bouche qui prononce les paroles de la loi, des êtres inanimés qui ne peuvent ni en adresser la force ni la rigueur. " Charles de Secondat Montesquieu, L'esprit des Lois, Livre XI, Ch. III, 127 (1748). " If the interpretation of laws is evil, their obscurity, which necessarily entails interpretation, is obviously another evil- Cesare Beccaria, On Crimes and Punishment, 10-12 (D. Young trans. 1986). If the law is unclear, judges necessarily have to address such considerations and give their interpretation of its obscure parts. The fundamental "principles of legality" emerged from such social contract theorists and since then constantly developed.

Sommaire

Introduction
Analysis of the elements of the Crimes
No requirement of a nexus to war
No requirement of a discriminatory motive
The requirement of a 'widespread or systematic attack' (Emphasis added)
The ´knowledge of the attack´
´Other inhuman acts´, ´persecution´, and the principle of legality
´Other inhuman acts´
´Persecution´
Conclusion

Extraits

[...] The discriminatory element will certainly play a great role, as it is a strong requirement, among the other elements of the crimes. A definition such as the one in the Kupreskic case is of a great importance since it allows a court to charge an offender with persecution as a crime in itself, and not only as an auxiliary offense or an aggravating factor. In sum, as recalled in the paragraph 626 of the decision, a charge of persecution must contain the following elements: those elements required for all crimes against humanity under the Statute; a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article discriminatory grounds. [...]

[...] According to the Trial Chamber in Tadic the mens rea for crimes against humanity comprises of the intent to commit the underlying offence, combined with knowledge of the broader context in which that offence occurs. This knowledge has been defined by the ICTR in Prosecutor v. Kayishema as follows: perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. Part of what transforms an individual's act into a crime against humanity is the inclusion of the act(s) within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. [...]

[...] One can only say "most", since if some acts do not involve any problem concerning their definition (since clearly defined in the ICC statute or in international instruments others may cause problem in a near future, namely "other inhuman acts" and "persecution". They may be deemed to be contrary to the principle of specificity of international law. "Other inhuman acts", "persecution", and the principle of legality Article 7 of the ICC statute, in its paragraph lists the acts included in the definition of crimes against humanity. [...]

[...] A definition such as the one in the Kupreskic case is of a great importance since it allows a court to charge an offender with persecution as a crime in itself, and not only as an auxiliary offense or an aggravating factor. In sum, as recalled in the paragraph 626 of the decision, a charge of persecution must contain the following elements: those elements required for all crimes against humanity under the Statute; a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article discriminatory grounds. This should provide guidelines for the potential offender and for the (potential) Prosecutor or Judge. [...]

[...] Bassiouni, Crimes Against Humanity in International Criminal Law PCIJ Series A/B 65, at pp. 52-53, reproduced in Bassiouni, supra note at pp. 138- E. Schwelb, "Crimes against humanity", British Yearbook of International Law, vol no p Charter of the International Military Tribunal, article annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug Stat U.N.T.S Trial of the Major War Criminals Before the International Military Tribunal 461 (1949), quoted in Bassiouni, Crimes Against Humanity in International Criminal Law at Preamble, Hague Convention No. [...]

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