Forms of responsibility in international criminal law
1. Introduction 2. Joint criminal enterprise 3. Superior responsibility 4. Complicity and aiding and abetting 5. Planning, instigating and ordering 6. Concurrent convictions and sentencing 7. Conclusion 8. Annexes.
Revival of Customary Humanitarian Law
In March 2005, the International Committee of the Red Cross (ICRC) released a report identifying, on the basis of empirical data concerning state practice and opinion gathered from nearly fifty countries plus nearly forty recent armed conflicts, those principles of international humanitarian law that now enjoy the status of customary law.l An observer might ask whether this ambitious and unprecedented effort was not a bit anachronistic. In an era when international legal principles are increasingly codified in multilateral conventions, the overall importance of customary law has arguably eroded.2 Moreover, when customary law is applied today, the methods used to determine its content are increasingly relaxed, particularly with respect to the establishment of state practice. The modem approach to customary law, it is said, relies principally on loosely defined opiniojuris and/or inference from the widespread ratification of treaties or support for resolutions and other "soft law" instruments; thus, it is more flexible and open to the relatively rapid acceptance of new norms.3 The ICRC's approach, in contrast, takes a traditional form, while remaining open to a wide variety of manifestations in practice. In my view, the ICRC's project is highly relevant today. Extensive scholarship addresses various aspects of modem debates over the identification, application, and legal force of customary norms, and my discussion here will not attempt to encompass them all. I shall limit myself to the observation that, at least in the field of humanitarian law, customary law continues to thrive and to depend in significant measure on the traditional assessment of both state practice and opiniojuris. In particular, international criminal tribunals-especially the International Criminal Tribunal for the Former Yugoslavia (ICTY)-have developed a rich jurisprudence elucidating customary principles of humanitarian law. The approach taken by these tribunals is necessarily rigorous and, in a sense, conservative. Criminal courts are bound to respect the principle of nullum crimen nullapoena sine lege (or the legality principle): a defendant may be convicted only on the basis of legal rules that were clearly established at the time
Towards a Humanitarian Declaration on Internal Strife
The recent statement by the President of the International Committee of the Red Cross (ICRC) that the ICRC will hold consultations with experts on the elaboration of a new declaration on internal strife will no doubt gratify the entire humanitarian and human rights law community. International attention is thus turning to a major area still outside the effective scope of international humanitarian law (hereinafter humanitarian law) applicable in armed conflicts: internal strife that falls below the thresholds of applicability of common Article 3 of the Geneva Conventions of August 12, 1949 for the Protection of Victims of War and of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). In view of the frequency and cruelty of situations of internal strife, the widespread denial of applicability of humanitarian law, the limited number of ratifications of some of the human rights instruments, the inadequacy of the nonderogable provisions, and the abuse of the right of derogation, the elaboration of such a declaration could fill a dangerous lacuna and bring humanitarian and human rights law closer together.